Meanwhile, Back in Texas

The Filing Season has begun for bills to be considered in the next session of the Texas Ledge and, no surprise, Sen. Dan Patrick and Rep. Frank Corte have filed bills attempting to add requirements that physicians and patients must meet before the patient may get an abortion (Flurry of Bill Filings Hint at Texas Lawmaker's Priorities).  If the first bills filed shows legislators priorities, it's clear that Patrick and Corte are more about scoring political points than passing legislation:

A similar proposal passed the Senate last year but stalled in the House.

With Democrats gaining more seats in the House, the ultrasound bill's chances might be even worse this time, said Sherri Greenberg , a fellow at the Center for Politics and Governance at the LBJ School of Public Affairs.

But what would be the effect if such a bill actually did become law?

Despite popular misconceptions, abortion law isn't completely controlled by Roe v. Wade.  There was a secondary abortion case, Planned Parenthood v. Casey that over-ruled certain portions of Roe and opened things up for more state regulation of abortion than Roe would have allowed. 

Roe v. Wade based its holding on the idea that the ability of states to regulate abortion would be limited by how advanced the pregnancy was.  During the first trimester, any state regulation would be looked at via the lens of "strict scrutiny," the harshest constitutional standard by which hardly any state limitations are tolerated and the woman's right to terminate the pregnancy would be very difficult for the state to limit.  During the second trimester, more regulation would be allowed and then after viability (Justice Blackmun tied this roughly to the third trimester)  abortion would only be allowed if the woman's health or life were in danger.

PP v. Casey changed this calculus.  Instead of "strcit scrutiny" controlling, the Court accepted an intermediate standard of "undue burden" as the controlling standard for regulations related to abortion rights.  The undue burden standard said that even in the first trimester, regulations would be allowed as long as they didn't create an undue burden on the woman exercising her right to privacy.  In Casey, this meant that certain "informed consent" requirements (similar to those found in the Corte/Patrick bill) passed constitutional muster--essentially, it meant that the State of Pennsylvania could require doctors make certain information available to women before they got an abortion and impose a 24 hour waiting period.

Requiring ultrasounds has become the next big thing in opposing choice and the Corte/Patrick filing is on the strictest fringe of these laws.  It requires doctors to not only perform an ultrasound (whether or not it's medically recommended), but also to describe the stage of fetal development, the specific risks (and some fictitious risks, such as a greater chance of breast cancer) involved, provide a list of counseling services available, describe the father's responsibilities to provide child support, force the woman to listen to the fetal heartbeat and the woman must sign documentation that all of this information was provided forced upon her.  The law does indicate the woman has the option of averting her eyes fromt he ultrasound, though I don't think it says she can stick her fingers in her ears.  The law would also require a 24-hour waiting period between the ultrasound and other requirements and the abortion procedure.

The closest analogue to this law is one that has passed in Oklahoma and a court case was just filed in October challenging the law's constitutionality.  As far as I can tell, the ultrasound question will be determined by the "undue burden" standard found in Casey.  The big difference between ultrasound requirements and other informed consent requirements that have been allowed in the past is the added expense.  Corte/Patrick require the doctor to provide information about how the patient can get free ultrasounds, but I'm not sure that this is enough to get the legislation over the hump.  Either the ultrasound will impose an additional $200-$1000 financial burden (I've seen this range of costs for ultrasounds, depending upon the quality, etc.  I think the legislation would allow for the lower cost versions) on the woman, which in some cases would be a significant burden.  Even if alternatives are provided for free ultrasounds, this would require additional doctor visits, time off from work, lengthening of the 24-hour waiting period because of scheduling delays.  I think this sort of burden is exactly what the Court had in mind when it said that regulations could not impose an undue burden on women seeking an abortion in the first trimester.

This sort of legislation rests on the premise that women who seek abortion do so without considering what it is they are doing.  It assumes that women are not capable or responsible enough to think through this important decision without the state stepping in and choreographing the process.  It assumes that women don't reflect long and hard over this decision, often prayerfully and in consultation with their personal and spiritual advisers.  It presumes that doctors giddily abandon their Hippocratic Oath the moment a woman enters their offices seeking an abortion and that the relatively small amount of money they would make from an abortion outweighs the money they would get from the repeated visits and consultations required for a live birth. 

Fortunately, this legislation will probably not pass in Texas and I think it's highly likely that the law in Oklahoma and other states will be found unconstitutional.  I'm so glad that the Democrats have included a plank in their party platform stating that they will seek to make abortion a rare (though safe and legal) procedure by teaching quality sex education in the schools, making sure that contraceptives are affordable and available and by providing comprehensive universal health care that helps take financial considerations out of the process.  But the right to choose is part of the rights afforded by our constitution and it's a right that must be protected from limitations designed to take that right away.

Comments

[Cindy]

Christ. These guys are SUCH a PAIN in my uterus. Frank "the fetus" Corte as he's known to some of us, is such a nutjob. And that Patrick guy...how is he still making laws after the attempt at pushing through last sessions baby buying bill? 500 bucks is lowballing it, mister. I want at least 1000. And a lifetime supply of Kit Kats.

[Robin]

i'm with cindy.
especially on the kit kats!!