By Scott W. Gaylord and Thomas J. Molony
The next wave of abortion regulation has arrived. With the Virginia governor’s approval of a controversial ultrasound bill last week, twenty-three States now have laws regulating—and in some cases requiring—the use of ultrasounds in connection with abortion procedures. Ten other States are considering similar ultrasound legislation, and the trend shows no sign of stopping.
In recent weeks, national attention has focused on the ultrasound laws in Texas, North Carolina, and Oklahoma, which require physicians to conduct an ultrasound, display the fetal images to the woman, and explain those images before performing an abortion. Last week, USAToday ran an op-ed condemning mandatory ultrasound laws, and this week, the nationally syndicated comic Doonesbury is running a storyline that is critical of Texas’s speech-and-display law. Yet, despite all the criticism, Alabama, Kentucky, Mississippi, Pennsylvania, and Rhode Island have similar speech-and-display legislation pending.
Much of the criticism of speech-and-display regulations reflects a passionate disagreement with the legislative policy underlying such legislation. In its editorial, the USAToday asserted that the purpose of “such laws has nothing to do with good medicine” but “is to dissuade women from having an abortion.” Moreover, drawing on a University of California-San Francisco study, the editors suggested that these laws are ineffective because, in the study, “[n]ot one [woman] changed her mind and decided against an abortion” after viewing an ultrasound.
Whether ultrasound laws represent good policy or are effective, though, is a separate question from whether such laws are constitutional. Under the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, States have a right “to ensure that a woman apprehend the full consequences of her decision” and can require physicians to provide “truthful and not misleading” information about the abortion procedure and the development of the fetus. As the Fifth Circuit noted in upholding the Texas speech-and-display statute, ultrasound images and descriptions of those images “are the epitome of truthful, non-misleading information.”
Those criticizing the growing number of ultrasound laws frequently ignore the fact that the Constitution permits States to try to dissuade women from having an abortion. In Casey, the Court expressly acknowledged that a State may “further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion.”
Moreover, recent empirical evidence indicates that speech-and-display laws are effective. According to a 2011 Quinnipiac study, “ultrasound requirement laws reduce the odds of a woman having an abortion quite substantially,” which is probably why speech-and-display regulations have elicited such powerful reactions on both sides of the abortion debate.
Under Casey, States have broad authority to pass abortion regulations that are reasonable and do not impose an undue burden on a “woman’s right to make the ultimate decision.” Given that ultrasounds routinely are used prior to an abortion (and, therefore, do not impose an undue burden on a woman’s decision), the recent court challenges to the Texas and North Carolina speech-and-display requirements have focused on the First Amendment rights of physicians. In particular, the physicians have argued that requiring them to display and describe ultrasound images violates their right to be free from compelled speech.
The Supreme Court already has considered—and rejected—this argument. In Casey, providers of abortion services claimed that physicians had a First Amendment right “not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State.” While acknowledging that mandatory disclosures “implicate” physicians’ First Amendment rights, the Court held that, in the context of “the practice of medicine,” physicians were “subject to reasonable licensing and regulation by the State” and consequently could be compelled to provide disclosures about childbirth and abortion.
The criticisms of speech-and-display requirements, therefore, must be understood for what they are—critiques of the policy choices made by state legislatures in Texas, North Carolina, and Oklahoma. To the extent those critical of these policy choices seek a constitutional prohibition on mandatory ultrasounds, they actually are advocating for a return to the standard set forth in Roe v. Wade, under which virtually all abortion regulations were struck down.
But Roe is not the law. Casey is. And under Casey, States have substantial latitude to regulate abortion by requiring the disclosure of truthful, non-misleading information, such as ultrasound images of the fetus within.
(Professors Gaylord and Molony teach at the Elon University School of Law in Greensboro, North Carolina. After receiving his MA and PhD in philosophy from the University of North Carolina at Chapel Hill, Professor Gaylord graduated summa cum laude from Notre Dame Law School, where he received the Dean Joseph O’Meara Award, and clerked on the Fifth Circuit Court of Appeals. Professor Molony joined the Elon law faculty after practicing law with the Charlotte, North Carolina firm of Robinson, Bradshaw & Hinson. He is a summa cum laude graduate of the Washington & Lee University School of Law and member of Phi Beta Kappa and Order of the Coif.)