Tag Archives: abortion

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.

Burn Down Joan’s Abortions in Mad Men

On the most recent episode of Mad Men, (Season 4, episode 3: The Good News) we receive a short hint about Joan’s past. After all, how could a woman as beautiful and suave as Joan Holloway, erm, Harris, go this long without getting knocked up. Spoiler alert: She couldn’t.

Apparently, Joan has had two abortions: One from a doctor and the other via a “midwife.” This raises the question of whether either, or both, of her abortions were illegal.

Roe v. Wade was not decided until 1973. However, that does not guarantee that her abortion was illegal. Roe merely limited states’ abilities to restrict abortions. From the second season episode “The Mountain King,” we know that Joan has lived in New York City at least since 1953, given that in 1962 she told her husband that she had worked for Roger Sterling for 9 years.

During this time, abortion was considered homicide in New York State, unless the procedure was to save a woman’s life. Only in 1970 did New York expand rights to an abortion, and even then abortions after 24 weeks were still considered homicide if the woman’s life was not at risk. Given this timeline, it is not likely that Joan’s reference to an abortion from a physician means that she got one legally in New York. However, there are two ways in which one could hypothesize an abortion from a doctor to be a legal abortion.

1. Medical Justification

Joan could have gotten a legal abortion if she could have proved that it was medically necessary. She could have demonstrated that her life was physically put at risk by the pregnancy, allowing an abortion under New York State law. She also could have checked herself into a psychiatric ward and had two psychiatrists certify that she might commit suicide if she had to continue the pregnancy. This justification gives slight flashbacks to Peggy Olson’s own adventures in childbirth, not to be confused with quarantine for tuberculosis.

According to a hauntingly timely December 25, 1964 Time Magazine article titled “Medicine: Abortion, Legal & Illegal”: “some 8,000 [abortions]  are done by physicians in hospitals, with a semblance of legality.” 8,000 out of millions is not good odds. However, the article does explain that some hospitals hold the idea of medically necessity in much broader terms than others: “In some hospitals, doctors construe [saving the mother's life] liberally and do an abortion if the woman threatens suicide, especially if she is unmarried or has been raped.”

Given Joan and her doctor’s nonchalant attitude towards an abortion from a physician, perhaps she was one of the lucky 8,000.

2. Joan went to a different state

It is not very likely that Joan received a legal abortion in another state. After all, according to that Time Magazine article: “The law in virtually all 50 states declares that a therapeutic abortion is permissible only to save the mother’s life.” However, some places were still easier than others to acquire abortion services. For example. in Chicago between 1969 and 1973 there was a floating abortion clinic known as “Jane.” Women could call a number and be told where and when they could meet with “Jane.” While this time period does not match perfectly with the events in Mad Men, the contemplation of matching timelines does raise the question of why Mad Men’s creators would bring up abortion specifically in this episode. Perhaps that Time Magazine article is not coincidently timely with the show after all. Maybe the creators know their history all too well.

Time Magazine wrote an article in that last week of 1964 because, only the week before, the New York Academy Medicine had issued a report encouraging the legalization of therapeutic abortion.

“Last week the prestigious, 3,000-member New York Academy of Medicine reported in effect that New York State’s—and most of the nation’s—abortion laws are hypocritical, and would be a farce if they did not prove fatal to so many women. Most doctors, said the academy’s committee on public health, are so afraid of prosecution that safe abortions in hospitals have become fewer and fewer, while dangerous, illegal abortions have become ever more common.

The academy’s prescription: amend the law to permit “therapeutic abortion where there is a substantial risk that the continuance of pregnancy would gravely impair the physical or mental health of the mother, or that the child would be born with grave physical or mental defects.” As safeguards, the academy would require prior approval of an operation by a committee of hospital doctors, and the abortion would have to be done by a licensed physician under the usual safe, sterile conditions in a hospital.”

Read more: http://www.time.com/time/magazine/article/0,9171,830977,00.html#ixzz0w55eq9J9

Perhaps while doing research for the show, the various historians on call, art directors, and whomever’s job it is to make sure that Mad Men reeks appropriately of vinyl and cigarettes came upon this article. After all, what a better way to do research than flip through the magazines of the era. “Hmm,” he said, looking at the date of the article. “Perhaps we should throw in an abortion reference to this episode. It would be timely and certainly add a little zazz to the plot.”

Furthermore, 1964 marked the death of Gerri Santoro. Santoro died during an attempted self-induced abortion. The resulting police photograph became a rallying call for the pro-choice movement. Published in the April 1973 issue of Ms. magazine, the the one simple image forced the United States to face the horrors unsafe abortions.

Could this have been Joan?

Given that Joan admittedly received an abortion from someone she describes as “claimed to be a midwife” — a description that is not exactly a vote of confidence — one must think about how much distance there really is between Joan’s character and the fate that befell Santoro. Mad Men can’t exactly hit the viewer over the head with such blunt, liberal feel-good moralizing, while maintaining its status as a good how, but it is difficult to see these timely yet short plot points as mere coincidences.

Mad Men skipped much of 1964, and so we didn’t get to see the reactions to the big events of that year. However, the shockwaves are apparent in nearly every scene of the show, from Don smoking grass with some college girl, to ignoring the metaphorical cancer, to Joan’s appointment with her ob/gyn. Mad Men weaves a delicate web, and it does so most beautifully when the real message slips in with a subtle knife, rather than sticking its thumb in the viewer’s face, trying to hitch a ride.