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Will ultrasound laws be heard by the Supreme Court?

May 16, 2012

By Dave Andrusko

Mary Spaulding Balch, J.D.

Yahoo News’ “The Lookout” ran a very helpful overview Tuesday of the status of ultrasound laws in the United States and what grounds opponents would use should these laws eventually be heard by the Supreme Court. Before she does that, however, Liz Goodwin discusses the latest round of ultrasound laws and the way opponents are contesting them.

There are several kinds of ultrasound laws which are classic informed consent laws, a characterization opponents refuse to acknowledge because this truth undercuts their assaults on the laws.

Goodwin thoughtfully explains how abortion advocates are taking a different route when challenging ultrasound laws. Rather than pretend these laws constitute an “undue burden” on a woman’s right to an abortion, they adopt the position that was a key to the original Roe v. Wade decision: that these law supposedly infringe on the physician’s (abortionist’s) rights, in this instance, the abortionist’s “right” to free speech.

“This ‘back –to-the-future’ approach is paternalism on steroids,” said Mary Spaulding Balch, JD, who heads NRLC’s Department of State Legislation, “made worse because these laws are not about the rights of so-called ‘doctors’ but of women to receive accurate and impartial information.”

She explained that the “undue burden” argument is a non-starter. The Supreme Court has often said, most specifically in Planned Parenthood of Southeastern Pennsylvania v. Casey, that states have substantial latitude to regulate abortion by requiring the disclosure of truthful, non-misleading information, which would include ultrasounds

Alluding to Goodwin’s article, Balch agreed that opponents are arguing that the laws are unconstitutional because they are supposedly “compelled speech,” which, as Goodwin points out, is an argument the Supreme Court has generally looked favorably upon.

“But this is a classic example of misdirection,” Balch said. “Forget everything about the right of patients to informed consent. They are saying, what really matters–what only matters–is that the abortionist on his own should be freed to decide what she needs to know.”

Balch cited two other examples of where the courts have said that “compelled speech” is okay. Flight attendants are not free to decide whether to tell passengers of safety precautions. The passenger is free not to pay any attention.

Likewise, the courts have upheld the right of the government to put graphic warning labels on packs of cigarettes, Balch said, to alert the public to the health risks of smoking. The smoker is free to ignore the warnings.

In the same vein, in the abortion context, ultimately the woman makes the decision. “But many women live to regret their abortions, which is one important reason why they have the right to hear about their unborn child.”

Goodwin explains that the Supreme Court will not often take up a case unless appeals courts split. The 5th Circuit Court of Appeals has upheld Texas’ ultrasound law. A U.S. district judge blocked North Carolina’s law from taking effect, a decision that is being appealed to the 4th circuit court of appeals. If that appeals court agrees with the district judge, that could set the stage for the Supreme Court to address the laws.

From her perspective, Balch said, “Obviously we would want all the appeals courts to uphold the laws, but if the issue reaches the Supreme Court I am confident these laws will survive the highest level of judicial scrutiny.”

Why? “Because this is NOT a ‘free speech issue but one of informed consent. The abortionist’s job is to provide accurate information, not make the decision for the mother.”

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Categories: Ultrasound