Govt Has No Place Between My Legs (Oklahoma passes ultrasound law for abortions)

Agreed, I expect this to show up in court in no time, especially if the procedure is charged to the woman having it done (the ultrasound that is), then we get into the whole Insurance problem and how a forced procedure is paid for. No physical action should be forced onto someone by law. But, I expect no less from a bible-thumping state..

he precedent that the government can force any medical procedure on you, even an ultrasound, is dangerous indeed.

Texas wanted to mandate the HPV vaccine. Other vaccines are mandated by law and there are many cases where medical treatment have been forced on families who object for religious beliefs or alternative health views.

Governments mandating treatment isn't new, just growing in scope, along with the pharma lobby.

Good point, Pamela, I'd forgotten about vaccines.

I have vague memories of lining up in gyms for Hep B vaccines and tetanus shots back in Toronto (and I wonder, having grown up in the age of multiculturalism, if the government didn't have special provisions for religious or cultural opposition then). But even those seem sensible because they have medical justification, and for the most part I'm pro-inoculation today.

In this case, though, there's no medical warrant for this required and potentially invasive procedure. I also wonder if there are religious or cultural precedents that suffer abortion but not, in particular, vaginal ultrasounds.

While I'm not a fan of even forced vaccines (especially considering our knowledge of their side effects is lacking in many cases) at least the public health argument contains some merit. What's the argument for this ultrasound other than they don't like abortions and they are trying to scare/emotionalize women out of them?

Also, I can't believe that emotionalize is really a word.

There's a fine line when it comes to govt mandated health care issues... not vaccinating is dangerous.

Challenged in which court, and on what grounds Adam? While it is a completely stupid law for Oklahoma to pass, I cannot favor a federal court striking down this law, any more than I would favor a federal court striking down Oregon's physician assisted suicide law or California's medical marijuana law. Now a state supreme court striking it down for violating the state constitution I would be all in favor of, if it does indeed violate that constitution. If not.... then this is how legislature works.

What's the argument for this ultrasound other than they don't like abortions and they are trying to scare/emotionalize women out of them?

Do they need one, legally speaking? Either they can legislate in this area, or they can't. If they can then the only arguments that count are the ones that got the legislature to override a veto on the bill.

Brian, good question. I do not know the Oklahoma State Constitution, so I'll bypass the state court and get right into the Federal Court. I am perfectly ok with the Federal Court striking this law down and for these reasons:

Technical: This law can get struck down for the same reason that Roe vs Wade made abortion legal, privacy. The government doesn't have the right to invade your privacy to determine whether you had the ultrasound or not, or whether you had an abortion or not.

Philosophical: You have a right to your own body. This is not spelled out in the Constitution, but that's okay because the 9th Amendment acknowledges that not all rights are included in the Bill of Rights and it allows for the existence of other rights. Thus since you have a right to your own body, the Federal Court should strike this law down for the very same reason it shouldn't strike down the laws of Oregon's physician assisted suicide or California's medical marijuana: you have the right to your own body and that means ending your own life, or using medicinal drugs or refusing a medical procedure.

The Federal Court's job is to protect our rights and preserve the Constitution, not to rubber stamp laws passed by the legislature, whether federal or state.

Please see: http://en.wikipedia.org/wiki/Gonzales_v._Carhart

The Supreme Court's decision, handed down on April 18, 2007, upheld the federal ban and held that it did not impose an undue burden on the due process right of women to obtain an abortion, "under precedents we here assume to be controlling,"[2] such as the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey.
...
Justice Anthony Kennedy wrote for the Court that the respondents had failed to show that Congress lacked power to ban this abortion procedure. ...
The majority opinion held that "ethical and moral concerns", including an interest in fetal life, represented "substantial" state interests which (assuming they do not impose an "undue" burden) could be a basis for legislation at all times during pregnancy, not just after viability.

I see no legal reasoning that could lead to upholding the partial birth abortion ban and simultaneously striking down the ultrasound law. As long as the woman can get an abortion after the ultrasound, I see the court saying that her due process rights are adequately protected.

So the best bet is heavy lobbying of the state legislature. Except that being Oklahoma, I'm going to guess that most state residents support the ban.

I'm with Brian. I just read the text of the bill, and if I had to guess, the federal courts would determine that an ultrasound doesn't constitute an undue burden on the mother's right to choose. I am curious to see how the court would rule on an undue burden standard issue in light of Justice O'Connor's retirement.

If having a vaginal ultrasound, one where they shove a big wand into the vagina, isn't an undue burden then what the hell is?

If you wanted to get a vasectomy but first the law required a wand to be shoved up your anus would you find that to be an undue burden? I sure would.

And I have a feeling the humiliation is part of it, it is intentional, they want you to feel ashamed at being violated by your doctor and hope it will prevent you from seeking out an abortion.

Just like the PhotoShopped pictures of dime-sized "aborted fetuses" with fully-formed digits and facial features and the "help" campaigns led by pro-life organizations for young pregnant women, this procedure is meant to manipulate women into the "reality" of their choice and hopes, as you say, to deter women from having the abortion.

Apparently I don't know what I feel yet.

While I abhor the idea of government mandating any medical procedure for any reason, calling this rape is disingenuous.

The procedure only takes place if the woman consents. While I recognize that women wishing to obtain an abortion will be consenting because they wish to have an abortion, they are still consenting.

In order to claim a vaginal ultrasound in order to get an abortion is rape, a case would need to be made that the option of not getting an abortion is legally a form of unlawful duress.

The procedure only takes place if the woman consents. While I recognize that women wishing to obtain an abortion will be consenting because they wish to have an abortion, they are still consenting.

The "consent" to the ultrasound is required by law in order to obtain an abortion when the two separate procedures are not related and the former is not medically necessary or even recommended to receive the latter. Like a law that turns a blind eye to spousal rape, de facto consent isn't consent, it's coercion at best and, in my estimation, blackmail.

The procedure only takes place if the woman consents. While I recognize that women wishing to obtain an abortion will be consenting because they wish to have an abortion, they are still consenting.

You could use the same logic to state that the woman that "consents" to sex in hopes the intruder won't harm her kids wasn't really raped.

I'm assuming that you mean an abortion is legal, not that it is a judicial procedure.

Yes, it is legal to have an abortion; it is also legal to have a vaginal ultrasound. No, you should not be required by law to undergo a medical procedure.

However, you can say no.

Yes, it is bull@!$%#, and probably a violation of personal rights. However, without unlawful duress it is not rape.

You could use the same logic to state that the woman that "consents" to sex in hopes the intruder won't harm her kids wasn't really raped.

No. That would be consider unlawful duress.

Okay, let's prosecute your imaginary rape. Who is the perpetrator?

However, you can say no.

However, without unlawful duress it is not rape.

The thing is, women can't say no if they want an abortion. And you can focus on that if, but the entire thing is no different from extortion. The government is forcing the unwanted procedure through coercion and intimidation. Though only reason there is no "unlawful duress" is because the government writes the laws and made the duress legal.

The "consent" to the ultrasound is required by law in order to obtain an abortion when the two separate procedures are not related and the former is not medically necessary or even recommended to receive the latter. Like a law that turns a blind eye to spousal rape, de facto consent isn't consent, it's coercion at best and, in my estimation, blackmail.

It is still consent that would be given freely, and not under unlawful duress.

No one has shown has how the option of not getting an abortion is legally a form of unlawful duress

The thing is, women can't say no if they want an abortion.

Yes, I agree.

The government is forcing the unwanted procedure through coercion and intimidation.

No, they are forcing it through the laws. Which is worse in my opinion.

Though only reason there is no "unlawful duress" is because the government writes the laws and made the duress legal.

To a point. It is not duress, it is the law. Hence it cannot be unlawful duress.

Duress is the use of wrongful force or coercion to force someone to do something against their will, Roan. I fail to see how denying women abortions if they don't consent to vaginal ultrasounds would not fall under this.

Call it whatever you want. I feel no need to dance around what is actually going on for the sake of sophistry.

Having a child you don't want isn't duress?

Not to mention a woman that is going to be harmed by her parents or her partner because she is pregnant.

Homicide (usually spousal) is the leading cause of death for pregnant women.

Stacy:
He's speaking in purely legal terms. If the Oklahoma legislature worked this around so it's not considered duress then it is not duress. This has "federal case" written all over it because you're not to be made to jump through hoops before you can have procedures the state doesn't particularly like.

Scott, I can buy that through legal terms. But I'm fairly certain the initial use of "rape" was not meant to be in legal terms but in emotional, physical and reality.

No, they are forcing it through the laws. Which is worse in my opinion.

What are laws but coercion and intimidation by the government? All laws are enforced through the threat of violence and ultimately death at the hands of the government. But that is a conversation for another time.

extortion

Yes.

To a point. It is not duress, it is the law. Hence it cannot be unlawful duress.

I refuse to accept an argument for an act against my body and my rights on the basis of semantics, legal or otherwise. Writing an illegal procedure into code does not make it legal: it makes it official.

An abortion is a legal procedure. You should not have to consent to a separate, medically unnecessary procedure to obtain a procedure that is legal. Legally, you cannot say no. This does not equal consent.

Having your leg amputated is a legal procedure, but should I be able to walk into a doctor's office and demand they amputate my leg?

Getting oxycontin prescribed for you is legal, but should I be able to walk into a doctor's office and demand they prescribe me oxycontin?

Just because something is legal doesn't mean you get instant, automatic access to it in our society.

Just because something is legal doesn't mean you get instant, automatic access to it in our society.

Amputation and prescriptions require diagnosis, and so does abortion, but an ultrasound is not the only diagnostic tool at a doctor's disposal in detecting pregnancy: urology is standard, reliable and non-invasive. There is no medical or judicial (read: safety concern) justification for an ultrasound as part of the abortion procedure. This measure legislates emotional blackmail on behalf of a pro-life agenda.

This has "federal case" written all over it because you're not to be made to jump through hoops before you can have procedures the state doesn't particularly like.

I have this little fear that Oklahoma attorneys will just yell states' rights until they're blue in the face.

Amputation and prescription do not actually require diagnosis. They could be given on demand. Instead there are rules and laws governing how they're granted.

According to the Supreme Court:

The majority opinion held that "ethical and moral concerns", including an interest in fetal life, represented "substantial" state interests which (assuming they do not impose an "undue" burden) could be a basis for legislation at all times during pregnancy, not just after viability.

There is a legitimate legislative interest in advancing pro-life issues from my reading of that, and SCOTUS seems to be saying that as long as you can eventually persevere and get an abortion then they are fine with a variety of restrictions. As far as I can tell, only a complete and total ban on abortions would now be held to be unconstitutional, and everything else would be fine with them.

I used to be an ultrasound technologist and I can confirm that the type that will give the best 'picture' of the fetus is the vaginal one.

That is tantamount to rape if the woman doesn't want the procedure.

Sophistry? Please Stacy, the inflammatory claim of rape is the only sophistry here.

There is no force, and there is no unlawful duress, and there is no rape. If you think that there is rape, please attempt to explain how the charge would be prosecuted.

Such odious and purposely inflammatory claims are counter-productive, as then tend to distract from the real issue at hand.

Roan, how about unconstitutional, state-sponsored rape?

Does that description satisfy you?

I'm glad you've taken this approach to it, indecent. When I read about the bill a few days ago it was the first thing which came to mind, but I didn't seed it because from another country and another gender I thought I was going to far out on a limb to say it like that.

What's with the crazy evangelical right in the US? Compassion failure?

Roan, how about unconstitutional, state-sponsored rape?

Does that description satisfy you?

Nearing, how about inhumane, sexist torture?

If we are not going to be accurate in our descriptions, the least we can do is be as inflammatory as possible.

If we are not going to be accurate in our descriptions

Roan, you don't see unconstitutional, as in against the 4th amendment, as accurate.

State-sponsored, as in the state is making it a law and paying for the test.

Rape, as in entering a woman's vagina without her permission.

They seem accurate enough to me.

(inhumane, sexist, torture are all pretty subjective)

No, nearing, I don't

The only part of you statement that is accurate is the fact that it is state sponsored. Unconstitutional is your opinion, and rape is simply inaccurate.

gotta disagree with there Roan.

No problem nearing.

While I certainly share you disagreement with the law, I just feel that sometimes these comparisons are made to provoke a visceral response rather than because they are accurate.

Actually, having thought about it, I believe that Oklahoma has legalized rape with a foreign object, which is different from rape itself but still a crime. The ultrasound probe is still an unwanted foreign object.

Scott Isaacs,

They legalized it?

Well, insomuch as they make someone that wants an abortion get one, then I would say that they have legalized it. You disagree?

I thought you were speaking of another law or bill. Sorry.

Well, I thought this was bad. But I learned of another national bill that has passed and was just signed into law by Bush that makes this one look pretty tame.

Wait til you see what our elected officials have in store for our children.

Someone said something earlier about a legislative interest in fetal life. In the wake of a plummeting economy and cost inflation of necessities like gas and food, and in an age where a huge swath of citizens and most presiding officials oppose the institution and proper maintenance of social programs like welfare, health care and child services, what in god's name does it mean to say that the United States government has an interest in preserving fetal life?

We can rationalize the law all we like, but there is no pragmatic justification for this bill. It protects no one.

Rape, as in entering a woman's vagina without her permission.

How exactly do you think the abortion is going to be performed? The legislature is mandating that one extra test be done as part of a procedure that already involved foreign objects being inserted in the vagina. Is consent granted to the entire procedure, or must each instrument be individually approved?

Someone said something earlier about a legislative interest in fetal life.

That someone would be the Supreme Court, not me. I was merely relaying their words:

The majority opinion held that "ethical and moral concerns", including an interest in fetal life, represented "substantial" state interests which (assuming they do not impose an "undue" burden) could be a basis for legislation at all times during pregnancy, not just after viability.

They swung the door wide open for this type of legislation with that ruling. Similar restrictions are appearing in more and more states.

There are many, many steps in medical care that are unnecessary. Are they all invalid? We constantly allow legislators to make decisions about medical care and give those decisions the force of law.

stolte-sawa:
That's Republicans for you: fight tooth and nail to bring you into this world and then fight tooth and nail to not take responsibility for you afterwards. ;-)

Brian, not all "medical procedures" are equal, and neither is every medical case. And in this case, the "procedure" in question is invasive and is performed with malicious intent. For these reasons, it is not, for these purposes, a "medical procedure", but a political one.

Do you just come here to quote code?

What do you mean by quote code?

Saying that some other procedures may be unnecessary is a pretty poor argument when this procedure has been mandated by law, clearly for no other reason than to discourage women from having abortions. So it's not like other procedures, is it? It can't be questioned or refused in the way other procedures can. It's also known to have no medical purpose - that's not a matter of conjecture or testing like other procedures.

clearly for no other reason than to discourage women from having abortions

So? If it's not unconstitutional then the legislature can legislate on it to advance the "substantial" state interests in fetal life, as long as they don't present an "undue burden". SCOTUS will object to an outlawing of abortion, but is wide open to limitations on abortion of the time, place, and medical process type, all of which are designed to discourage abortions.

Sucks living under a regime of judicial fiat doesn't it? Where the constitution says whatever the latest appointees to the court say it does... just ridiculous. But that is the current system.

No Brian you're switching back and forth between arguments - a fallacy of equivocation. The procedure is medically unnecessary, and arguing that it's legally necessary has nothing to do with that. The state can legislate that women have to climb mount Kilimanjaro before they have an abortion (so as to get a good perspective on life), if they want to.

This whole debate is about the idea that having the government make the procedure a legal necessity is unjust. So arguments that it's legally permissible are simply moot. But yes the way SCOTUS are willing to stretch legal intention to fit their political views is a shame.

The reason medical necessity, or otherwise, is relevant is that Ryan correctly pointed out that an unnecessary medical procedure is in fact a political rather than a medical act. If you were required to undergo a colonic irrigation before having eye surgery, because the court mandated it, then you would consider that an assault. Even if you agreed to it because the alternative was to be blind, it would still be an assault. The fact that it was, in other circumstances, a recognised medical procedure, does not make it one when it has no purpose other than to dissuade you from the eye surgery.

This whole debate is about the idea that having the government make the procedure a legal necessity is unjust.

Of course, it is completely unjust and an absolute travesty.

So arguments that it's legally permissible are simply moot

No, I was objecting to the statement that this law is unconstitutional. While I believe it is actually unconstitutional, I do not believe the federal courts will find it so. Clarifying that is rather important.

Everyone seems to think that because I was defending the constitutionality of this law under the current court that I am a defender of the law... not so at all.

Precisely what aspect of this is unconstitutional?

Please see the link above where I responded to Adam. In light of the Gonzales v. Carhart Supreme Court decision, what aspect of this is unconstitutional? Ginsburg's dissent in that case was the ONLY mention of privacy, the rest of the case was decided on due process and the interest of the state in preserving fetal life and the ability of legislatures to issue "findings of fact" as to what is, or is not, medically necessary that cannot be disproven by actual medical testimony.

Bear in mind, I think that decision was a travesty. It is, however, how SCOTUS is ruling right now.

Precisely what aspect of this is unconstitutional?

How about being 'secure in our persons'?

Nobody is making you insecure in your person. That right is against unreasonable search and seizure

One could argue that a vaginal ultrasound is an unreasonable search.

Scott: Creepy. But unless they're searching your uterus for evidence, I don't think it's quite the same.

One could argue that a vaginal ultrasound is an unreasonable search.

Hear, hear!

Steve:
One might make the argument that the vaginal ultrasound is a search for life so that it may be shared with the person carrying that life. Whether I agree that it is a life or not (and I think it is), I still think that it is an unreasonable search in an area where a person has an expectation of privacy. In fact, I would say this is the one place that a woman has the highest expectation of privacy.

that the vaginal ultrasound is a search for life

Uterus: The Final Frontier.

Interesting.

The bill contains a number of pro-life initiatives and expands on anti-abortion legislation passed in 2006 that required abortion doctors to tell a woman she had a right to a free ultrasound exam at an offsite location.

Guess that addresses the cost issue.

Sounds to me like they are using the law to try and convince women not to have an abortion. Why else would they require a description of the unborn cells? I am not for laws that are out to terrorize women, or make them feel ashamed for their choice to abort a pregnancy. Juno was a great movie and all, but not every teenager is as well adjusted as she was.

Sounds to me like they are using the law to try and convince women not to have an abortion.

They are. They are starting from the flawed basis of thinking that if every woman was fully informed, then none of them would choose abortion. It's a fundamental misreading of the situation.

or make them feel ashamed for their choice to abort a pregnancy.

But in the legislators mind, the effects will be instead a lot of women deciding to keep the baby and lots of happy fuzzy Hallmark moments after than.

Of course; everyone is able to raise a baby!

I can't believe this. The more discussion I read, the less I can believe this. That's like giving a kid a cake, but if he eats the cake he'll get extremely unhealthy, have to pay probably over $200000 over the next 18 years (money he doesn't have), and then telling him "well, you could give the cake back!" So the kid goes "OK" and you go "Hold on @!$%#er. Before you do, here's a pamphlet about exactly how amazing that cake tastes. Here--have a little tiny piece before you make up your mind."

Maybe the legislature should mandate cake instead :)

They are starting from the flawed basis of thinking that if every woman was fully informed,

So the premise is that women don't know what a positive pregnancy test means? They have to see the fetus with their own eyes on an ultrasound machine screen in order to be 'fully informed'?

What a travesty.

Having an ultrasound of a collection of cells described to a woman seeking an abortion is not informative at all. It is at a minimum disrespectful but more likely cruel and unusual for the woman.

If you both seem to think that seeing the picture of the fetus will actually change the mind of the woman - then that seems to show that the woman wasn't fully informed earlier and validate this law. When you get more information and that changes your mind, you are making a better informed decision, the supposed reason for this law.

Brian, I am saying making a woman look at cells that she intends to abort is cruel and unusual punishment, or at least disrespectful of her decision. Don't tell me this is about giving women a better informed decision, it is about bullying women into thinking that they are killing a child when they have made up their mind that all they are doing is removing a collection of cells. That is disrespectful.

It is not a "cruel and unusual punishment" because it is not a punishment.

Don't tell me this is about giving women a better informed decision

it is about bullying women into thinking that they are killing a child when they have made up their mind that all they are doing is removing a collection of cells.

If the person making this decision is that wishy-washy on the issue that they can be swayed so easily, do you think they might later regret the abortion decision? Nobody is stopping them from having the abortion after seeing the ultrasound. If they find they no longer want one after seeing this picture, then how can you say they haven't gotten more information and then used that to change their decision? That is what making a better informed decisions is, and that is the reason this law was supposedly passed.

WHAT INFORMATION ARE THEY GETTING?????

Besides, the issue is not informed consent, it is an undue burden test. This is an undue burden because it is intrusive, not because it is burdensome economically. The Burden is in having a wand shoved up your vagina before you get rid of some unwanted cells. That is a burden and IMO it is a punishment, cruel and unusual at that.

So a rape victim should be required to be raped again by an ultrasonic wand before she aborts the rapists chromosomes? That is disgusting, but if you want to stick up for that law be my guest.

This is NOT an undue burden for the simple reason that SCOTUS will not find it one, and we live under a system of judicial tyranny where what they say the Constitution means is what it means. Doctors testified in front of SCOTUS that there were real cases where so-called partial birth abortions were medically necessary, and SCOTUS dismissed this very real evidence in favor of Congress's bogus "finding of fact" that they were never necessary. Do you really believe that the Supreme Court we have is going to find this an undue burden, when they are completely willing to ignore actual medical necessity issues? IT DOESN'T MATTER WHAT YOU OR I THINK.

I am so tired of people making assumptions about me. Did you ask me what I thought of this law? No. I'm against it. BUT IT WILL NOT BE FOUND UNCONSTITUTIONAL! If the law is to be changed, the only way is through the state legislature, thinking that the federal court system is going to step in and save the day is naive and incorrect.

I can relate Brian. You attempt to give honest and factual information, and suddenly your are against their cause de jour.

I don't think that we should assume that the supreme court would not find this to be an undue burden. Most cases dealing with the undue burden issue are economic in nature. This is not a notification law or a cost issue, this is a woman's body being violated. They are very different issues. You may be right in the end, and the Supreme Court may uphold the law, but I think that given the precedents the Court has to deal with, this could very easily be found an undue burden.

I attacked your argument that the women are receiving information relevant to consent, I disagreed. Your argument was that it is not an undue burden (albeit under the law) and it is relevant for informed consent (which I disagree with, as the law stands today). I counter your argument and you get angry for me attacking YOUR argument?

That is disgusting, but if you want to stick up for that law be my guest.

I didn't stick up for the law, just said it won't be found unconstitutional. The majority here seemed to immediately assume that to mean I am an anti-choice supporter of the law. If you want the law changed, the way to do it is through the legislature, as the judicial route will likely prove to be unfruitful for the reasons I outlined above. You are free to disagree with any of my opinions on what the trends are with SCOTUS, just not free to assume my motivations - just ask.

Just out of curiosity, why would you argue for the Supreme Court upholding the law when a plausible argument could be made that it is an undue burden and does not serve informed consent? If you only wanted to suggest that the Supreme Court would uphold the law you could have done so by stating that the precedent should lead the Supreme Court to overturn the law but given the current make up of the court it would be upheld? Just curious why you chose the route you did.

you could have done so by stating that the precedent should lead the Supreme Court to overturn the law but given the current make up of the court it would be upheld

You mean like:

Ginsburg's dissent in that case was the ONLY mention of privacy, the rest of the case was decided on due process and the interest of the state in preserving fetal life and the ability of legislatures to issue "findings of fact" as to what is, or is not, medically necessary that cannot be disproven by actual medical testimony.

Bear in mind, I think that decision was a travesty. It is, however, how SCOTUS is ruling right now.

?

:)

Pennsylvania is a great state in which to live. Can't help with the kidnapping (another Newsvine thread on this topic), but if you need help with the U-Haul.............

San Francisco! We are the opposite of Oklahoma :)

I say, let's make men undergo a colonoscopy with no drugs before allowing them a Viagra prescription.

LOL, thanks JonesGirl, that was a good one.

Inbred? Scoff. It's now getting ininbred. I worked at a movie theater during high school, and you wouldn't believe the idiot junior high kids. That is, until you saw their parents. Then it all makes sense. Sometimes I wonder if the state legislature doesn't have it backwards--abortion needs to be compulsory for the next ten or so years. Then we can start the @!$%# over.