Tag Archives: SB15

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.