Forced Ultrasound, “Informed Consent,” and Women’s Health in Texas: The Sad State of the State

Last month, when news spread that Virginia legislators were considering a forced trans-vaginal ultrasound bill, the uproar was loud, clear and immediate: women would never stand for this invasive and unnecessary law. Politicos and pop-culture icons alike spoke out against the Republican-led legislation. What kind of world are we living in, reasonable people wondered, when “informed consent” is tantamount to state-sanctioned rape?

Here's what kind of world: the kind wherein a mandatory ultrasound law scads worse than the proposed Virginia bill has already been in place for five months. In Texas.

“Texas has the most extreme law that's being enforced right now,” says the Center For Reproductive Rights' Julie Rikelman, the lead attorney on the CRR's lawsuit filed against the Texas legislation. Despite the sympathetic leanings of a federal district judge who initially ruled on the case, the suit has more or less been stalled by a vehemently anti-choice Fifth Circuit Court of Appeals, which denied the CRR's requested injunction against enforcement last month. Now, that means that all aspects of the law—mandated ultrasounds, 24-hour waiting periods, and forced speech—are now in full force in Texas.

Intially the CRR was able to gain an injunction against enforcing the parts of the law they argued in court violated doctors' First Amendment rights. But twenty-five days ago, they lost that injunction and doctors began being legally required to verbally describe the sonogram image, make heartbeat audio available if possible, and offer women the opportunity to view the image.

And while the mandatory trans-vaginal ultrasound requirement has garnered a great deal of interest and outrage, Texas providers tell RHRealityCheck that the “most onerous” part of the law, for both providers and abortion-seeking women, has been the mandatory 24-hour wait period between the required ultrasound and the abortion itself.

“The 24-hour waiting period with two face-to-face visits required, that was just incredible,” says Amy Hagstrom Miller, the founder of Whole Women's Health, a Texas-based health care center with five locations providing abortion care, STI treatment and basic women's health exams. Now, women must take two days off of work and invest three to four hours each day to get the safe, legal procedure they're entitled to by law.

“Women have just been absolutely furious about having to come twice,” says Hagstrom Miller, who adds that 65 percent of abortion-seeking clients at Whole Women's Health are already mothers. It's not just two days off work that creates an unnecessary hassle for most of these women—it's also finding two days of child care.

“Because they're already moms, there's nothing in the ultrasound that is surprising to them,” says Hagstrom Miller. “It's not like they say, 'Oh, I didn't know i was pregnant.'”

Despite passionate claims otherwise from anti-choice individuals, transvaginal ultrasounds and 24-hour wait periods do not, in fact, appear to induce women to opt out of abortion.

No women have changed their minds, says Hagstrom Miller, out of the hundreds who've come to Whole Women's Health since the mandatory ultrasound law went into action. Two or three times, she says, women have elected to hear a heartbeat.

“I know of no patients, and I'm talking hundreds, who've changed their minds because they saw the ultrasound,” says Hagstrom Miller.

Because her clinics have always provided ultrasounds to women to look at and even take home, “It's not some mystery.” Indeed, it's standard practice.

The Texas law stipulates that providers—and the ultrasound must be conducted by the abortion provider her- or himself, not a technician—must use the technology that provides the best image of the embryo or fetus, which means trans-vaginal ultrasounds for women seeking abortions before about seven weeks into their pregnancy, regardless of whether they're opting for a medical abortion (i.e., the abortion pill) or a surgical abortion.

Ultrasounds themselves are not the problem—again, says Hagstrom Miller, they're part of standard medical practice and most providers have used them when they and their patients feel it's appropriate to confirm and date pregnancy.

“Ultrasound is a simple way to do that, but it's not the only way to do it,” explains Hagstrom Miller. The mandatory ultrasound “sidesteps the medical profession” and takes the decision out of the hands of medical professionals and puts it into the hands of the government.

And according to the CRR's Julie Rikelman, the State of Texas is also putting words in the mouths of doctors.

“There are serious constitutional issues here,” she says, adding that she believes the Fifth Circuit Court's denial of the injunction—intended to be in place while the lawsuit winds its way through the justice system—was “absolutely legally the wrong decision.”

Because the Fifth Circuit—”a very conservative court of appeals,” according to Rikelman—has, unusually, reserved the right to rule on all further appeals in the case, there is little cause to be optimistic about the CRR's case falling on anything but deaf, anti-choice ears. To that end, says Rikelman, they're reevaluating their strategy in Texas and looking at challenges to the laws in other states.

“Since we do have challenges going in other courts and other jurisdictions, we do have to think about how can we make the best case for doctors and women around the country.”

But just because the CRR has run up against a judicial roadblock in Texas doesn't mean that Texans are giving up. Especially online, the fight continues with activists taking to social media, wherein the popular and cheeky Keep Your Boehner Out Of My Uterus Tumblr has been posting an ongoing day-by-day reminder that Texas' ultrasound law isn't going away, and the #TXreprohealth hashtag continues to gain in popularity.

And while the Texas legislature doesn't meet this year, Texas voters can look forward to elections in November, when they'll have a chance to replace anti-choice representatives who have already moved on from the ultrasound issue and are now openly attacking women's access to basic reproductive health care and contraception in Texas.

Late last month, conservative lawmakers officially signed a rule turning down federal funding for the Medicaid's Women's Health Program. Rather than allow Planned Parenthood to receive WHP funds, Texas legislators want to deny 130,000 low-income and uninsured women access to contraceptives, cancer screenings and basic reproductive health care at clinics that do not provide abortions.

Whether that will happen for a certainty remains to be seen—the Centers for Medicare and Medicaid Services have the ultimate say, and the Obama administration has said that excluding Planned Parenthood is a violation of the Social Security Act (which guarantees patients can get care from the qualified agency of their choosing) and thereby illegal.

If the WHP falters in Texas, as it may do as soon as March 14, that will leave the aforementioned 130,000 women without access to care on top of the 180,000 women per year who lost access to care last fall when Texas slashed its family planning budget. That brings the total to 310,000 women in Texas stranded with no reproductive health care in sight.

As Amy Hagstrom Miller points out, that's a less than effective way to prevent the number one cause of abortion: unwanted pregnancy.

“I think it's a tragedy that the very people that say they are interested in preventing abortion are cutting out the best way we've found in Texas to do so.”