Virginia’s Ultrasound Law

English: The state seal of Virginia. Српски / ...

Is that an ultrasound probe?

The Virginia state legislature is on track to pass a law requiring women to have a transvaginal ultrasound before being permitted to have an abortion. As might be imagined, there is considerable opposition to this law. Some critics have  even argued that forcing women to undergo an invasive procedure could actually be a sex crime under Virginia law. As might be imagined, this matter raises numerous moral concerns.

One point of concern is that, as presented in comedic fashion on the 2/21/2012 Daily Show, some of the folks supporting the bill seem to be directly violating their own professed principles regarding the appropriate role of the state. For example, the woman who put forth the bill previously argued against “Obamacare” on the grounds that the state should not make such an imposition on liberty. As another example, the governor of the state was critical of the TSA “pat downs” as being too invasive. He has, however, expressed his intent to sign the bill into law.

As might be imagined, forcing women to undergo such an invasive procedure seems to be rather inconsistent with the past arguments by these folks regarding individual liberty and the appropriate role of the state. After all, if it is unacceptable for the state to force people to buy health insurance because it violates their liberty, forcing a woman to undergo penetration against her will seems to be even more unacceptable.

Naturally, I am not claiming that these people are wrong now because their current view seems to be inconsistent with their past views. After all, doing this would be a fallacy (ad hominem tu quoque). However, it is fair to simply take the reasons they presented against forcing people to buy health insurance and apply them to their own view on the forced ultrasounds. As such, if they were right then, then they would seem to be rather wrong now. Naturally, people tend to not be very big on consistency-as Mill noted in his discussion of liberty, people generally take the view that the state should do what they want and do not base this on a consistent principle regarding what is fit and unfit for the state to do (or not do).

The most important point of concern is, obviously enough, whether or not it is right for the state to mandate such a procedure. While, as noted above, proponents of this bill seem to have railed against state imposition in other matters,I will accept that  there are cases in which the state can justly impose. The question then is whether or not this is such a case.

The most common basis for justifying state imposition is the prevention of harm. To use an obvious example, the state justly forbids people from stealing. In the case of the ultrasound, the assumption seems to be that this law will help reduce the number of abortions and this will, as some folks see it, combat a harm. However, the evidence seems to be that this will not be the case. Dr. Jen Gunter has a rather thoughtful analysis of this matter that addresses this point. As she notes, sex education,access to medical care and  contraception have the greatest impact on reducing abortion rates. These are, oddly enough, often opposed by the same folks who are vehemently opposed to abortion. As such, the law makes no sense as an abortion reducer even if it is assumed that the state has the right to make impositions with the goal of reducing abortions. In light of this, it would seem clear that the law is morally unjustified.

Even if the law would, contrary to fact, reduce the number of abortions, there is still the question of whether or not the state has the right to make such an imposition. After all, there are appealing arguments for individual liberty and keeping the government out of peoples’ business-often made by the very same people who back this particular intrusion into liberty (as noted above). My general principle is that the burden of proof rests on those who would make such impositions into law. That is, they have to provide a sufficient reason to warrant impinging on personal liberty and choice. As its stands, the proponents of this law have not made such a case. After all, it will not even achieve its apparent goal of reducing the number of abortions. There are also no legitimate medical reasons for making such an imposition and, as such, it seems to be an unwarranted and  needless attempt to legalize the violation of the rights and bodies of women.

 

 

 

 

 

 

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22 Comments.

  1. “…supporting the bill seem to be directly violating their own professed principles”

    Politicians often offer public positions on issues, and then sign bills contrary to their previous positions. The ad hominem tu quoque fallacy is one way of looking at the situation. However, politicians are usually required to support party policies. Unless there is a free vote on an issue, then it would be disastrous for a politician to vote against political party lines. The party can make it uncomfortable for the politician to remain as a representative. For example, the party could control future campaign contribution expenditures and squeeze out the dissenting incumbent.

    An important factor not acknowledged is that the issue is not solely of national health cost, but of local Virginia State medical requirements (that means I do not get the connection with Obamacare). If Virginia is going to pay the bill, then Virginia should have a say in the procedure. The invasion of privacy issue can be avoided by simply going to another State that does not require this medical examination.

    Dr. Jen Gunter makes it appear as if the ultrasound is for the purpose of indignity and has no useful medical basis. One possible reason for the procedure is to provide visible and independent evidence that a pregnancy does exist in the first trimester. The procedure is to prevent a surgeon from performing a fake abortion, and to address the moral issue of medical malpractice. Providing the ultrasound does no medical harm, this appears an appropriate step for the Virginia Board of Medicine.

    A recurring theme in the last few articles is the problem of conflicts in law; where state, federal, international and religious law conflict. The founding fathers of the American constitution allowed individual states to pass unique laws. This is an ingenious way to handle the difficulties of conflicts in law. Further, it allows the Federal appeal courts to have the heroic task of striking down law and declaring liberty.

  2. “Dr. Jen Gunter makes it appear as if the ultrasound is for the purpose of indignity and has no useful medical basis. One possible reason for the procedure is to provide visible and independent evidence that a pregnancy does exist in the first trimester. The procedure is to prevent a surgeon from performing a fake abortion, and to address the moral issue of medical malpractice. Providing the ultrasound does no medical harm, this appears an appropriate step for the Virginia Board of Medicine.”

    This is false information. If the mere fact of pregnancy was all that was involved, a non invasive ultrasound could accomplish the same thing (and in fact a non invasive ultrasound is what was required by the amended bill passed this morning). The stated purpose of this bill was to provide information dating the degree of the pregnancy’s progression, not information on whether a pregnancy exists. The choice of an invasive ultrasound was, at least officially, made because a non invasive ultrasound is less effective at providing precise information about first trimester pregnancy.

    Why precise dating of a pregnancy that is being aborted is medically necessary is unclear. The only useful information that could be gained would be that the pregnancy was not, in fact, a first trimester pregnancy… but if that is the concern, then there is no reason for a test that is only advantageous in evaluating first trimester pregnancies.

    And that brings us to the elephant in the room: It is unlikely that those advocating this bill are being honest about its purpose or its effects.

  3. Patrick,
    I never compared invasive versus non-invasive procedures. In any case, many people will be glad to hear that a non-invasive procedure has been proposed in the amendments. I am not an expert in the interpretation of ultrasound data. However, I agree that we should have further information as to the moral purpose of the test. In absence of any further information actually contained in the Bill other than “as a component of informed consent to an abortion, to determine gestation age”

    http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB462

    then some educated speculation in the blog commentaries should be tolerable (as you, Mike and Dr. Jen Gunter have done) without accusation of falsification.

  4. Dennis,

    Quite right-the bill was recently changed from requiring an invasive procedure to a non-invasive procedure. This might be due to the claim that compelling women to undergo penetration would violate Virginian law regarding sexual assault.

    While this change is relevant, the core issue of whether the state should be compelling this or not still remains. My position remains that because the law seems to serve no legitimate purpose and it is actually an infringement on freedom, then the law is immoral.

    While I try to avoid being paranoid, there does seem to be a general push against women’s liberties among certain political circles. I will not paint them with the broad brush of misogyny. After all, some might be motivated by good intentions.

  5. The fact that there are liberal and conservative hypocrites in the world is surely not a surprise to anyone. The only issue to debate is, “is this law legal, reasonable, and supported by the public?”

    I suspect it is legal because typically there are rules as to when an abortion is permitted and when it is not, and this “invasive” procedure may be technically needed to ensure that those rules are being honored.

    In the UK at the moment there is a bit of a rumpus over some Doctors agreeing to do abortions on the basis of the parent not wanting a particular sex of the unborn child. See… http://www.guardian.co.uk/world/2012/feb/23/sex-selection-abortions-investigated My point: rules are routinely broken and need to be able to be objectively checked. The question of abortion is of great ethical significance and must be taken seriously with full transparency so to speak.

    Then there is the question of if it is reasonable, and for me that is a question of if this procedure is overly invasive and a lesser one could be effectively used – that is a medical question I’m not qualified to answer, perhaps it is, perhaps it isn’t.

    As for public support – that is up to the Virginians surely.

  6. Mike,
    “…the law seems to serve no legitimate purpose and it is actually an infringement on freedom” is a redundant statement. The law is an infringement on freedom.

    Actually, I am surprised at the amount of moral skepticism throughout the blog site. Before I started to read the articles and commentaries here, I thought I was one of the few moral skeptics in philosophy. Occasionally now, I find myself supporting the moral view.

    Perhaps the Virginia Bill is unnecessary, but I think you require a thicker argument than law is not legitimate and freedom is moral.

  7. Dennis,

    I’m not a moral skeptic, since I subscribe to the view that morality is both objective and knowable.

    If the bill is not legitimate, that should suffice to show that it should not be made into law. I do admit that I have a presumption in favor of freedom. That is, the burden of proof rests on those who would reduce liberty rather than on those who would defend it. As such, since the proponents of the bill have not supplied sufficient warrant for the bill, it makes sense to reject it on the basis of said infringement.

  8. Who is saying “law is not legitimate”? Law can be very useful, and in fact we couldn’t have large societies without it. But law can also be oppressive.

    The question is whether this particular law is more useful than oppressive or more oppressive than useful. What does it accomplish other than make it more burdensome for women who want them to obtain abortions? And if that is all it does, why shouldn’t I side with the women concerned? It doesn’t make things safer for me if I find myself in Virginia for some reason, just makes life more difficult for some people.

  9. @Russell,
    It was Mike who said “the law seems to serve no legitimate purpose” which I agree makes no sense. It depends somewhat on the definition of law, which in this article has been confined to meaning the written statutes of the State of Virginia.

    In a broader sense, the law could be defined as written rules and not tacit assumptions. On your statement that “we couldn’t have large societies without” written law, note there have been anthropological arguments that large societies can exist peacefully without written law, as shown in both the native populations of pre-colonized Australia and the Americas. My point of view is that the increase in global population has nothing to do with legislation or law, but completely to do with technological advances in science in the 20th century.

  10. Ultrasound prior to a termination of pregnancy is recommended by medical bodies eg Australian RACOG, as there are possible complications of the procedure (eg if there are congenital abnormalities in the structure of the uterus). It is compulsory in Switzerland, Germany, and Oklahoma. Howver, the one review paper I have read suggested that the benefits, if any, would only be small, when compared to physical examinhation. Two papers (Canadian and South African) have addressed the question as to whether women undergoing US before TOP would prefer to see the images from the investigation, and a majority do. The transvaginal examination does gives a better quality image, but I get the impression is optional in the European countries.

  11. Dennis,

    I don’t mean that law, in general, serves no legitimate purpose. I mean that the specific law does not. After all, there is no medical reason to compel such a procedure and, as the doctor in question noted, the evidence is that such procedures have no impact on the number of abortions. It would be a bit like passing a law requiring that people who want a driver’s license must have a full rectal exam on the theory that it would reduce accidents.

    Out of curiosity, what legitimate purpose do you see the law fulfilling?

  12. Mike,
    I think what you are trying to say, if I am not mistaken, is that the Virginia Bill serves no useful purpose. If this is the meaning, then I agree. However, I may have other reasons for not supporting the bill. For one, it interferes with the confidentiality between patient and physician. Each medical case is unique and it is up to the attending physician to determine which procedures are best. The patient must trust in the integrity of the doctor-patient relationship and not in legalese passed in a legislator. Would Dr. Jen Gunter argue that my reasoning is paternalistic or chauvinistic?

    The wording of the phrase “the law seems to serve no legitimate purpose” is what I find confusing. In my opinion, the law serves itself. Therefore, the law or any law always serves a legitimate purpose. I mean this in a strict sense without judgement as to whether a law is right or wrong, or good or bad. It is like saying, “an apple seems to serve no apple purpose.” An apple always serves an apple purpose. The difference is not as trivial as it may first appear. It can form the basis of a difference in opinion as to what purpose any law can serve.

  13. Well, there are standards, often including constitutional ones, as to what is a “legitimate” purpose for a law to serve. The standards may not be justifiable all the way down, but there’s often a fair bit of agreement as to what they are. E.g. laws will often be criticised, and may even be struck down by constitutional courts in some jurisdictions, if they are not “useful” in some secular sense (as opposed, say, to being useful for saving souls or achieving righness with God).

  14. Another way of looking at the problem is with the fallacy of Begging the Question. Consider Bertrand Russell’s example of circularity

    This statement is false

    cannot be shown to be true because the answer is contained within the statement.

    Likewise, the legitimacy of a law cannot be shown in the statement “the law seems to serve no legitimate purpose” because the answer is contained in the statement.

    The proper use of the word illegitimacy can be shown by the example:

    The law requires a doctor to sign a prescription.
    Therefore, an unsigned prescription is illegitimate.

    In the specific instance, I cannot see the reasoning that one law makes another law illegitimate. Mike as tried to argue that the Virginia Ultrasonic Bill is illegitimate because it conflicts with Virginia Rape statutes. The main flaw in this reasoning is that the purpose of the Ultrasound Bill is to define a preliminary procedure to an abortion procedure. An abortion procedure is an invasive procedure. How could one say that an invasive procedure is illegitimate as a preliminary procedure to another invasive procedure?

    Digressing a little bit here, I think we are bordering on the verge of absurdity. When some people get the law on the mind, they cannot behave themselves. Medical malpractice lawsuits are well known in America. However, using one more law to try to prevent malpractice suits left vulnerable by another law seems an exercise in futility.

  15. @Russell,
    Interesting point on constitutional purposes to save souls or achieve rightness with God. However, I do not think Virginia enforces any such statutes.
    Could you give an example of a constitutional standard that says what is the “legitimate” purpose for a “law” to serve? (That is, that actually uses these words).

  16. Dennis,

    Another way of looking at the problem is with the fallacy of Begging the Question. Consider Bertrand Russell’s example of circularity

    This statement is false

    cannot be shown to be true because the answer is contained within the statement.

    Likewise, the legitimacy of a law cannot be shown in the statement “the law seems to serve no legitimate purpose” because the answer is contained in the statement.

    In the specific instance, I cannot see the reasoning that one law makes another law illegitimate. Mike as tried to argue that the Virginia Ultrasonic Bill is illegitimate because it conflicts with Virginia Rape statutes. The main flaw in this reasoning is that the purpose of the Ultrasound Bill is to define a preliminary procedure to an abortion procedure. An abortion procedure is an invasive procedure. How could one say that an invasive procedure is illegitimate as a preliminary procedure to another invasive procedure?

    Well, no. I noted that critics of the law pointed out that it required a woman to be penetrated by a foreign object without her consent, thus making it an apparent violation of an existing law. It is not that the invasive aspect is the problem-it is the lack of consent in the penetration. This is different from the question of whether or not the law serves a legitimate purpose.

  17. Dennis,

    I apologize for being unclear. What I mean (and I hope I am not clarifying with more confusion) is that the law does not seem to be adequately justified. Put another way, it does not do what a law should do (prevent harm, etc.). I do, of course, admit that this is a point of contention.. It could be argued that the law does do what a law should do. Perhaps it will actually prevent unwarranted harm without unduly imposing on the rights of women. If so, then I am wrong.

  18. The easiest way to make sure no woman will ask for an abortion is obviously to require all men about the moment their voice breaks to undergo a bilateral orchidectomy.

  19. My point is that it’s not a matter of “usefulness” simpliciter – it’s a matter of a kind of usefulness. The government cannot justify a law against any old standard of usefulness at all but must justify it against a certain (albeit somewhat vaguely defined) standards of usefulness acceptable to the courts. The modern-day courts will not countenance an argument such as, “It’s useful for spiritual salvation.”

    Something like that is presumably what Mike has in mind by a law being “legitimate” (as opposed to law in general being legitimate).

    And yes, the courts do strike laws down on this sort of basis, albeit rarely. E.g. the Canadian courts struck down the Lord’s Day Act, while allowing other laws on Sunday trading that were framed rather differently and more arguably with a secular purpose.

  20. @Russell,
    “…but must justify it against a certain (albeit somewhat vaguely defined) standards of usefulness acceptable to the courts.”

    There has been a trend in recent times for governments to create “advertising” type laws that are supposed to affect judicial thinking. The problem is that these new laws are no longer for the people and by the people, but are laws for the benefit of judges and lawyers. We have the same old problem of elite chauvinism appearing in a different contemporary form.

    After reading the Virginia Bill, it is not bad in its clarity of words, but fuzzy in its clarity of meaning. It tries to appeal to both groups at the same time — the ones that are pro-life, and the ones that are pro-choice on the abortion issue.

  21. Russell,

    Quite right. My view that the law in question is not legitimate is that it fails to serve the sort of standards of usefulness that would stand scrutiny in the courts. Naturally, I’d want to make a fuller account of this in terms of a theory of usefulness in a legal context.

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