Is Virginia’s ultrasound bill the future of abortion regulation?

Posted on February 18, 2012

Washington Post, February 18, 2012 by Sarah Kliff

A Virginia law that would mandate ultrasounds prior to an abortion is gaining steam — and coming under intense criticism — as it heads to Republican Gov. Bob McDonnell’s desk. Virginia’s House of Delegates and Senate have both passed the bill, while the governor has spoken favorably of the provision.

The Virginia law (full text here) would do two things: First, it would require a woman seeking an abortion to undergo an ultrasound at least 24 hours prior to the procedure. Second, it would require the professional performing the sonogram to offer the woman an opportunity to see the ultrasound image. The state’s draft legislation has been met with protests and outrage from reproductive health advocates, who note that ultrasounds would be particularly invasive in the early stages of pregnancy.

The Virginia law is not, however, without parallel in the world of abortion restrictions. Ultrasound laws to limit abortion access began taking off in the 1990s and, according to the Guttmacher Institute, now stand in 26 states. Of those, a handful look a lot like Virginia’s: Seven states require an abortion provider to conduct an ultrasound and offer to show the image to the woman.

Practically, the Virginia law could have a significant impact. In 2007, 28,179 women terminated pregnancies in Virginia, one of the higher numbers in the United States. But in the legal landscape of abortion rights, it may prove less significant, as it does not appear to break new ground in testing out a new type of abortion restriction.

On that front, though, there is one state to watch: Texas, which in 2011 passed arguably the country’s most sweeping ultrasound law. Where Virginia would have providers offer a viewing of the ultrasound image, Texas requires much more. Providers there must both make an audible heartbeat of the fetus available and provide a detailed description of the fetus pictured in the sonogram.

The Texas law was immediately challenged in court as overly burdensome on women seeking abortions. And, initially, a lower court in Texas agreed: It blocked the law from coming into effect, ruling that it violated First Amendment rights to free speech in its regulation of what abortion providers must say.

That decision, however, was reversed last month by the U.S. Court of Appeals for the 5th Circuit, which ruled on Jan. 10 that “the point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances. Denying her up-to-date medical information is more of an abuse to her ability to decide than providing the information.”

After that decision, the Texas law now stands. It could conceivably work its way up to the Supreme Court, possibly setting a new precedent regarding which state abortion restrictions are constitutional under Roe v. Wade.

The Virginia law has indeed attracted a lot of attention and, in terms of its practical impact, could be quite significant for women in the state. But as for the legal future of abortion, it’s laws such as the one in Texas, which push the boundaries of abortion restrictions, that could end up mattering more.