But what if a woman doesn't want an ultrasound, and there's no pressing clinical reason for her to have it? Four states—Alabama, Louisiana, Mississippi, and Oklahoma—have taken the galling step of requiring her to have one regardless of need. They recently passed laws that go beyond offering ultrasounds to mandating them. Oklahoma's new statute dictates that either the doctor performing the abortion or a "certified technician working in conjunction" with that doctor do the ultrasound, "provide a simultaneous explanation of what the ultrasound is depicting," and also "display the ultrasound images so that the pregnant woman may view them." The law goes so far as to specify the doctor's script: The physician must describe the heartbeat and the presence of internal organs, fingers, and toes. The patient then has to certify in writing that the doctor or technician duly did all of this before the abortion. She can avert her eyes from the screen, the statute allows. Maybe the legislators should have also thought to mention putting her hands over her ears.Bazelon notes that:
The Center for Reproductive Rights is worried enough about an outcome like the one in the 8th Circuit [which allowed South Dakota to force doctor's to say that abortion terminates a human life] that it based its challenge to the Oklahoma ultrasound statute entirely on state constitutional law. That means no federal court can review the state courts' decisions (because those courts get to interpret their own constitutions). This was a tough decision, Toti says, but Oklahoma's Constitution has been interpreted in the past to give stronger free-speech and due-process protections than the federal Constitution.My article in the Columbia Journal of Gender and Law on informed consent laws, which discussed the 8th Circuit case, is now available on SSRN.