Last week, the Virginia Legislature moved closer to passing a bill that would require women seeking an abortion to undergo an ultrasound. Media reports and experts noted that because the mandate would apply to very early pregnancies as well, a traditional ultrasound would not always be adequate to obtain the detailed images specified by the law; instead, as CBS News reported:
One issue that has come under the microscope with relation to the ultrasound bill is its requirement that some women undergo a transvaginal ultrasound probe, which is considered more physically invasive than other procedures.
While the bill does not explicitly mandate the use of transvaginal ultrasounds, many women would inevitably be required to undergo them; in the early stages of pregnancy, that procedure is often the only form of ultrasound that can detect a fetus' heartbeat.
As Slate's Dahlia Lithwick reported, a proposed amendment to the bill that would have required the patient to consent to penetration with an ultrasound wand failed. Lithwick concluded:
Since a proposed amendment to the bill -- a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound -- failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under state law.
Right-wing media have responded by defending the Virginia bill. On the February 17 edition of her radio show, CNN contributor Dana Loesch defended the procedure as being no different than consensual sex, saying:
LOESCH: That's the big thing that progressives are trying to say, that it's rape and so on and so forth. And, in fact, this big battle that I've totally won with Keith Olbermann by the way, like, not only won once but twice and three times is -- there were individuals saying, “Well, what about the Virginia rape? The rapes that -- the forced rapes of women who are pregnant?” What?
Wait a minute, they had no problem having similar to a transvaginal procedure when they engaged in the act that resulted in their pregnancy.
Here's the thing. People know how anatomy and physiology work, yes? We know, again, how offspring is created? Right? We do.
(h/t Little Green Footballs)
Loesch further defended the legislation in a Big Journalism blog post:
The pro-abortion progressive lobby has worked extensively this past week to classify Virginia's straight-forward law as “rape,” even though the law doesn't dictate what sort of ultrasound should be used before a woman murders her child. The easiest and most reliable way is the transvaginal ultrasound, more common in the first trimester. Progressives act as though there are no other options available to avoid becoming pregnant, prior to getting pregnant, and that the consequence from their choice prior to sex is the problem.
[T]he greatest number of abortions are obtained by women who already have a child/children, so they know how anatomy and physiology works. A lack of planning on the woman's part doesn't constitute a mandate for legalized (and in the case of Planned Parenthood, publicly-funded) murder.
Other right-wing bloggers have also defended the bill. From a post on the conservative blog RedState:
[T]he bill that has the left in a tizzy is one that strikes directly at the market for the abortionists' sales pitch: women who have just discovered they are pregnant. As a result the Virginia GOP is being treated just by the abortion lobby the same way a rehab clinic operator would be treated by drug pushers.
So does Virginia's law require some foreign object to be “inserted into the vagina, and then moved around” ? The answer is obviously no. The law doesn't specify what kind of ultrasound must be used, rather it clearly states that the sonogram “shall be made pursuant to standard medical practice in the community.”
The post also claimed that "[a]bdominal and transvaginal ultrasounds are both effective at early stages of pregnancy" before immediately going on to quote from a guide, posted by the National Abortion Federation, that notes: “Transabdominal ultrasound cannot reliably diagnose pregnancies that are < 6 weeks' gestation. Transvaginal ultrasound, by contrast, can detect pregnancies earlier, at approximately 4 ½ to 5 weeks' gestation.”
But experts and women's rights advocates have raised numerous concerns with the legislation. Linking to an American Independent post that argued the bill is “at odds with medical standards,” Lithwick went on to write:
So the problem is not just that the woman and her physician (the core relationship protected in Roe) no longer matter at all in deciding whether an abortion is proper. It is that the physician is being commandeered by the state to perform a medically unnecessary procedure upon a woman, despite clear ethical directives to the contrary. (There is no evidence at all that the ultrasound is a medical necessity, and nobody attempted to defend it on those grounds.) As an editorial in the Virginian-Pilot put it recently, “Under any other circumstances, forcing an unwilling person to submit to a vaginal probing would be a violation beyond imagining. Requiring a doctor to commit such an act, especially when medically unnecessary, and to submit to an arbitrary waiting period, is to demand an abrogation of medical ethics, if not common decency.”
Tobias Barrington Wolff, a professor of constitutional law and civil procedure at the University of Pennsylvania Law School, also wrote in The Huffington Post that there is “no medically sound reason” to conduct the invasive procedure:
The Virginia legislature has passed a bill that will force women seeking an abortion to undergo a medically unnecessary transvaginal ultrasound. The mandated procedure requires that a probe be inserted into the woman's vagina and manipulated around so as to produce a high-resolution picture of the uterus and surrounding organs -- once again, for no medically sound reason. Governor Bob McDonnell has said that he will sign the bill.
Responding directly to Loesch's comments, legal scholar Jonathan Turley wrote in a post on his blog:
While there are good-faith debates over the scope of state authority vis-a-vis women in cases of abortion, the legislation would appear to require an invasive ultrasound procedure for women in the first 12 weeks of a pregnancy -- tipping the scales in terms of the burden on women. However, conservative CNN Contributor Dana Loesch went on the air this week to make the rather astonishing claim that such an involuntary procedure is no different from voluntary sex.
There is an obvious difference between consensual sexual relations and an intrusive procedure ordered by the state. The premise of such comments appears to be that, like sex, abortion is a choice. Thus, Loesch stated simply “Don't get an abortion and you don't have to worry about any sort of mandated ultrasound.” However, the Supreme Court has said it is part of a protected right of privacy (albeit a right balanced against certain state interests).
According to a press release, NARAL Pro-Choice Virginia executive director Tarina Keene called the bill “physically invasive for women as well as an intrusion into the doctor-patient relationship” :
The House of Delegates also passed a mandatory ultrasound bill - H.B. 462 - patroned by Delegate Kathy Byron (R-Bedford). Pro-choice legislators argued that because most abortions occur prior to 12 weeks gestation, an invasive transvaginal ultrasound would be required to see the fetus or hear the heartbeat. Supporters, such as Del. Todd Gilbert (R - Shenandoah) were not swayed. Del. Gilbert went so far as to say that government should be allowed to mandate this invasive procedure because abortion is only a matter of “lifestyle convenience.”
Keene said, “This bill and comments on the House floor show the disrespect anti-choice lawmakers have for women's personal and private reproductive decisions made with their doctors and their families.”
“This bill is physically invasive for women as well as an intrusion into the doctor-patient relationship. This is the epitome of government invasion into a woman's right to privacy. Let's be clear, politicians have just voted to mandate that a woman undergo a transvaginal ultrasound despite her wishes. Legislators with a dogged determination to practice medicine through the law have circumvented a doctor's medical advice and denied a woman's wishes to dictate a highly invasive medical procedure. This bill is undemocratic and demonstrates politics at its worst.”
In a fact sheet, the Virginia Pro-Choice Coalition wrote that the law could place “undue burdens on women seeking legal and safe abortion care,” writing that ultrasounds can add “up to $200-$1200 to the cost of an abortion procedure and may not be covered by insurance when they are not medically necessary.” The fact sheet also noted that “no other medical diagnostic test is mandated by the code of Virginia.”
So far, it appears Virginians agree that the law is unnecessary. A recently released poll conducted by Christopher Newport University and the Richmond Times-Dispatch found that 55 percent of Virginians surveyed oppose the legislation, while 36 percent support it.