Legal remedies against the Texas Sonogram Bill?

[Warning: This entry has medical drawings of vaginas]

Ah Republicans, the party of small government except for vaginas. At the rate they want to regulate those things, you would think that vaginas work by trading synthetic derivatives made out of radioactive mercury. After all, what do you think that red dot in the Kotex commercials stands for?

Cap and trade?

The biggest recent issue is Texas HB15, which would require a sonogram before a woman gets an abortion. To quote the Austin-American Statesman:

House Bill 15 requires a woman seeking an abortion to allow a medical professional to perform a sonogram, display live images of the fetus, provide an explanation of the images and play audio of a heartbeat, if there is one. All that is supposed to happen at least 24 hours before the procedure.

But beyond the generic government intrusion into the doctor-patient relationship, the intrusion extends literally into the vagina. You see, the bill doesn’t just require a sonogram, but a transvaginal sonogram.

Usually when people think of sonogram, they think of the jelly on the belly sort of thing, which is known as an abdominal sonogram.

Aww, it looks just like its incredibly blurry, black and white mother!

However, for women who are 8-12 weeks pregnant, a abdominal sonogram won’t show up anything. As Politifact Texas writes, the bill requires that the sonogram “display the live, real-time obstetric sonogram images in a quality consistent with current medical practice in a manner that the pregnant women may view them” and “make audible the live, real-time” heart beat. And in many circumstances, a abdominal sonogram simply won’t cut it. Therefore, to comply with the proposed law, doctors would have to perform a transvaginal sonogram.

That is exactly what it sounds like.

To cite the medical encyclopedia on the University of Maryland Medical Center website, the transvaginal ultrasound looks at a woman’s reproductive organs by placing a probe into the vagina.

The Masonic Cancer Center provides a great picture of what this involves.

Texas Republicans want to force doctors to do this to women.

This is a rather invasive procedure that is not necessarily medically necessary. It is being forced upon women and their doctors by Texas Republicans not for medical ends, but for political desires.

Women have a Constitutional right to control their bodies, and this means abortions. But do women also have a right to control their bodies to the extent that they can opt out of this government-mandated procedure?

Now, I’m not the world’s best law student. Heck, maybe not even fifth best. But I have taken a Criminal Procedure class. This situation reminds me of the class section on Invasive and Bodily Searches, notably the contrast between Schmerber v. California and Winston v. Lee.

In the first case, Schmerber was hospitalized following a car accident. A police officer smelled alcohol on him and thought he was drunk, and thus ordered a physician to take a blood sample despite Schmerber’s refusal to consent to the search. In that case, the Supreme Court held that, despite suspect’s protest, a physician may take a blood sample from someone suspected of drunk driving. If I recall correctly, the court did not directly address whether such a search violated the 4th Amendment protection of privacy. However, the court did recognize that it was a clean slate issue, and that blood sample searches were justified if the means and procedures were reasonable, especially given that the key evidence (alcohol in the bloodstream) was slowly being destroyed by the liver.

The Winston  case also addressed a body-invasive search. In that case, a shopkeeper shot a robber who was later found and taken to the hospital. The robber was charged with the crime, and the state moved for an order to remove the bullet lodged in his collarbone, asserting that it would provide necessary evidence. While the the surgery was originally thought only to require local anesthetic, x-rays revealed that a general anesthetic and invasive procedure would be necessary.

In that case, the court held that a compelled surgical intrusion into a person’s body for evidence implicates expectations of privacy and security of such magnitude that the intrusion would be unreasonable under the 4th Amendment.

Admittedly, that case relied on the specific facts of the situation. The court held that the reasonableness of surgical intrusion depended on a case by case approach, balancing individual interest in privacy and security against society’s interest. Notably, in this case the bullet was not the only evidence in the case and was not absolutely necessary to prove the robber’s guilt.

Now, I am not the best law student and I don’t know if this sort of criminal law precedent will apply to a civil law. However, it seems like there is an argument to be made here that the courts have differentiated between external and internal bodily searches. If the bill requires internal sonograms, then this should be treated differently than external ones.

This argument is a bit of a stretch, I know. And there are other arguments to be made along the lines of the government forcing speech upon the doctors, for which I’m sure there are rebuttals.

But to get down to the real brass tacks, without realizing what they were doing, Texas Republicans are forcing doctors to perform transvaginal sonograms on women when they are not necessary, and when women are at their most vulnerable.

Because Republicans want small government. In fact, government should be so small that it can fit inside a vagina.

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8 responses to “Legal remedies against the Texas Sonogram Bill?

  1. AMAZING, Evan. Your first paragraph is clutch. Ohh haha derivatives jokes.

  2. So, wait, if a woman is the victim of forcible rape, and wants an abortion because her assailant impregnated her, she has to get penetrated by the government before that can happen? Man, it’s a good thing Republicans are against socialized medicine, because I can only imagine the size of the psychology bills they would have to foot otherwise.

    • There is an exception for rape.
      According to the Houston Chronicle: “State Rep. Sid Miller, R-Stephenville, said he and state Sen. Dan Patrick, R-Houston, had agreed on “the cutout” exempting victims of rape and incest from undergoing the sonogram procedure and on an exemption requested by state Sen. Carlos Uresti, D-San Antonio, for women living more than 100 miles from the nearest abortion provider. The bill would require them to have the sonogram at least two hours before the abortion instead of 24.”

      • Oh, well how considerate of them. Obviously they’re really putting women’s concerns first.

        p.s. In case it was not clear, I think this is a very good post you wrote.

      • Thanks. As Shane points out, though, there is a problem with my argument. I address the first issue of transvaginal sonograms. However, if women don’t want those, then can’t they wait until the fetus is developed enough to get an abdominal sonogram? This leads to the second question: Can the government essentially force a multi-week waiting period if a woman does not want a transvaginal sonogram?

  3. I too appreciate this article. It’s so refreshing to read an article free of emotionally charged opinions-just straight facts.

    Waiting to have an abortion, reason being the trans-vaginal sonogram, does introduce a whole new set of questions. Being forced to remain pregnant, experiencing all the physical, hormonal and emotional changes associated, because a person objects to an unnecessary but legally enforced procedure does indicate a government regulation/medical boundary has been crossed. In my non-law student opinion at least.

    • Thanks! Emotional response or glib cynicism are important in areas devoid of those factors, or in areas where the facts simply don’t matter anymore. As Nikki said concerning Andrea Dworkin, sometimes you need righteous fury, rather than facts, just to keep you going. But I thought this was an angle that hadn’t necessarily been taken yet, and was prone for some dry analysis.

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