Law Professors Explain Why Ultrasound Laws are Constitutional

By Dave Andrusko

Thomas Molony, assistant professor of law, Elon School of Law

Over the weekend, the Philadelphia Inquirer ran an important op-ed written by two law professors who eloquently made the case that the much-maligned (by pro-abortionists) ultrasound laws are constitutional. (See http://articles.philly.com/2012-03-25/news/31236850_1_ultrasound-images-abortion-fetal-images.)

In so doing, Scott W. Gaylord and Thomas J. Molony remind the lay reader of five truths that are often overlooked in the back-and-forth over abortion in general, laws that give women a chance to look at an image of their unborn child, in particular.

#1. “Those criticizing the growing number of ultrasound laws frequently ignore the fact that the Constitution permits states to try to dissuade women from having an abortion.” They cite, for example, the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision where the High Court expressly acknowledged that a state may “further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the state expresses a preference for childbirth over abortion.”

Scott Gaylord, associate professor of law, Elon School of Law

#2. These laws do have an impact, which, of course, is why pro-abortionists so loath them. Gaylord and Molony, who teach at the Elon University School of Law in Greensboro, North Carolina, cite a 2011 Quinnipiac University study, whose primary motivation (if you go to the study itself) “was to determine if the anecdotal evidence on ultrasound laws was true: did giving women the opportunity to view their unborn fetus reduce the probability that they would have an abortion.” The answer? “[U]ltrasound requirement laws reduce the odds of a woman having an abortion quite substantially.”

#3. “The Supreme Court already has considered –and rejected”– the argument made of late that requiring abortionists “to display and describe ultrasound images violates their right to be free from compelled speech.” The court  has “held that, in the context of ‘the practice of medicine,’ physicians were ‘subject to reasonable licensing and regulation by the state’ and consequently could be compelled to provide disclosures about childbirth and abortion,” Gaylord and Molony explain.

#4. “The criticisms of speech-and-display requirements, therefore, must be understood for what they are–critiques of the policy choices that state legislatures across the country are making,” they write. “To the extent those critical of these policy choices seek a constitutional prohibition on mandatory ultrasounds, they actually are advocating a return to the standard set forth in Roe v. Wade, under which virtually all abortion regulations were struck down. But Roe is not the law. Casey is. And under Casey, Pennsylvania has substantial latitude to regulate abortion by requiring the disclosure of truthful, nonmisleading information, such as ultrasound images of the fetus within.:

Finally, #5, Gaylord and Molony write, “Whether ultrasound laws represent good policy or are effective, though, is a separate question from whether such laws are constitutional. Under the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, states have a right ‘to ensure that a woman apprehend the full consequences of her decision’ and can require physicians to provide ‘truthful and not misleading’ information about the abortion procedure and the development of the fetus.

“As the Fifth Circuit noted in upholding the Texas speech-and-display statute this year, ultrasound images and descriptions of those images ‘are the epitome of truthful, nonmisleading information.’”

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