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Effective Life-Saving Ultrasound Legislation

October 2010
By: Thomas Glessner

The use of limited ultrasound by medical pregnancy resource centers (PRCs) to confirm the presence of a viable intrauterine pregnancy in abortion-minded and abortion-vulnerable clientele has a powerful impact upon women contemplating abortion. Because of this, efforts have been made in various state legislatures in the last few years to pass laws that would mandate that information about the availability of ultrasound be given to a woman before she can obtain an abortion.

Americans United for Life (AUL), a pro-life law firm in Chicago, has compiled information regarding attempts by various states to pass ultrasound legislation. AUL reports that at the close of 2009:

• Eighteen states now require that women receive information about the availability of ultrasound services prior to abortion or require the performance of an ultrasound prior to abortion: AL, AR, FL, GA, ID, IN, KS, LA, MI, MS, NE, ND, OH, OK (2006 law), SC, SD, UT, and WI.

• Four states require verbal counseling and/or written materials to include information on ultrasound services: IN, OK, UT, and WI.

• Four states require verbal counseling and/or written materials to include information on ultrasound services and require the abortionist to offer the opportunity to see an ultrasound image if ultrasound is used in preparation for the abortion: GA, KS, MI, and NE.

• Four states require the abortionist to offer the opportunity to see an ultrasound image if ultrasound is used in the preparation for the abortion: AR, ID, OH, and SC.

• Two states require an ultrasound for each abortion and require the abortionist to offer the opportunity to view the image: AL and MS.

• One state requires an ultrasound after the first trimester and requires the abortionist to offer the opportunity to view the image: FL.

• One state requires an ultrasound at 20 weeks gestation and beyond to determine viability, and requires that the abortionist offer the opportunity to view the image: LA.

• Two states require the abortionist to offer the opportunity to view an ultrasound image: ND and SD.

• One state requires ultrasounds after 12 weeks gestation but this requirement has been enjoined by a court of law: AZ.

NIFLA applauds these legislative efforts to ensure that women who are contemplating abortion be given the opportunity to see an ultrasound image of their unborn children. However, we believe that most of these well-intended laws are deficient in major areas and are not the most effective means to insure that an abortion-minded mother benefits from the powerful impact of ultrasound.

Specifically, all of these laws require that certain ultrasound information be given to the woman, by the abortionist doctor — the one who is going to financially benefit from the decision to abort! How objective and credible is such a person going to be? The abortionist doctor clearly wants the mother to choose abortion because he is paid for that service. It is likely that any requirement that this person provide ultrasound information will be skewed and distorted by the abortionist to actually encourage the mother to abort her baby.

A second criticism of the laws passed is that they compel a mother to receive information that she may not desire to have. This creates difficult public relations problems. Of course, we believe that such information is necessary for a mother to make an informed choice and thus, compelling her to receive it is in the best interests of both her and her baby. However, this element of coercion provides political fodder for pro-abortion opponents who argue that such coercion is forcing a woman to do something she does not want to do and amounts to harassment. A sympathetic media easily buys into this argument and accordingly spins the story to the public in a manner negative to the pro-life position. Hence, in the media the pro-abortion side is portrayed as compassionate to a mother in an emotionally difficult time while the pro-life side is depicted as mean spirited forcing an emotionally stressed mother to view information she does not want receive.

Finally, an examination of many of the laws actually passed show that they are inadequate in ensuring that a woman contemplating abortion will actually see an ultrasound image of her child. Some of these laws simply require that she be told of the availability of an ultrasound or be given written materials on ultrasound services. Some states make an ultrasound requirement in the later stages of pregnancy — 12-20 weeks gestational age — which is far beyond the stage of pregnancy when most abortions are performed. The abortionist doctor who financially profits from an abortion decision can easily manipulate even these weak requirements.

An Effective and Life-Saving Approach to Ultrasound Legislation

NIFLA again applauds the well-meaning efforts of those who have promoted and passed the ultrasound legislation mentioned herein. However, we believe that a more effective approach can and should be taken. The approach that we propose deals with the medical purpose of a limited ultrasound for a mother who is abortion-minded or abortion-vulnerable.

Guidelines adopted by the medical profession through The American Institute in Ultrasound Medicine (AIUM) and The American College of Obstetricians and Gynecologists (ACOG) set forth the medical requirements that must be met to legally provide ultrasound. (See http://www.aium.org/publications/guidelines/obstetric.pdf)

Under these guidelines a limited ultrasound is medically indicated and "is performed to find the answer to a specific question that needs investigation" - Pg.1, Sec II (C). Further, the limited ultrasound is indicated and performed in the first trimester of pregnancy "to confirm the presence of an intrauterine pregnancy," and "to confirm cardiac activity" -- Pg. 2, Sec. V (A) (a)(g).

The importance of these medical indications is paramount to the work of medical PRCs. The first and foremost question that a woman contemplating abortion has is simply, "Am I pregnant?" A urine test does not give the answer to this question because the urine test is not 100 percent accurate. Thus, only a limited ultrasound performed to confirm the presence of an intrauterine pregnancy could answer this question for the abortion-minded woman.

A limited ultrasound also provides one additional piece of information that is extremely important. By locating a fetal sac within the woman's uterus the limited ultrasound confirms fetal cardiac activity and thus, determines that the pregnancy is a viable pregnancy. This is very important information because if the pregnancy is not a viable pregnancy the mother will miscarry and needs to be so advised. Medical literature indicates that 20-30 percent of first-time pregnancies are not viable and thus, will result in miscarriage over a matter of time. (See http://emedicine.medscape.com/article/266317-overview)

While we do not have data to answer this inquiry, it would be interesting to find out how many millions of abortions have been performed upon mothers who did not have viable pregnancies and would have miscarried if they had let nature take its course. Certainly, the best interests of a woman's reproductive health should require that she be given this information before agreeing to have an abortion. Meaningful and effective ultrasound legislation should reflect this medical reality and promote the best interests of a woman's reproductive health.

The NIFLA Approach to Ultrasound Legislation

NIFLA strongly recommends that proposed ultrasound legislation include the concerns that a mother be informed of whether she has a viable pregnancy. The law should require that before a woman undergoes an abortion she receive a medical opinion that her pregnancy is a viable pregnancy. This, of course, can only be done by an ultrasound exam. The importance of this information lies in the fact that if the pregnancy is not viable then she will miscarry and need not succumb to the brutal abortion procedure.

Second, the law should specifically state that the physician providing the medical opinion regarding the viability of the pregnancy be a physician who does not have a vested financial interest in the abortion decision. This would mean that the woman, before having an abortion, would have to be referred to another medical facility to undergo the ultrasound to determine the viability of the pregnancy. In practical terms, she would be able go to a prolife PRC medical clinic that provides free ultrasound exams to get this information.

The following is suggested language that should be contained in any ultrasound legislation passed:

An ultrasound or sonogram examination shall be performed upon any woman seeking an abortion before an abortion being performed or a referral for an abortion is made. Said examination shall be undertaken for the purpose of determining whether the pregnant woman has a "viable pregnancy." A "viable pregnancy" is a pregnancy in which a fetal sac is located inside the uterus and fetal cardiac activity is found within said fetal sac. Such ultrasound examination shall be performed only by a physician or a sonographer under a physician's direction who does not have a financial interest in the abortion decision of the pregnant woman.

Objections to this suggested approach have been made stating that a court prohibited such a law under the ruling of Planned Parenthood v. Casey, 505 U.S. 833 (1992), the United States Supreme Court case that sets forth the legal standard from which to scrutinize abortion legislative restrictions. According to Casey, if an abortion restriction is "unduly burdensome" on a woman's right to choose it is unconstitutional.

NIFLA believes that the limits of the Casey decision should be tested and that this ultrasound approach is a way to do so. We will not know if this approach is "unduly burdensome" until a court tells us so. And, in fact, a lower federal court will most likely make such a ruling. However, the current makeup of the Supreme Court makes it likely that this will be upheld in the high court. We need to be bold and push the limits of Casey.

NIFLA encourages all of its members to copy this article and distribute it to your state legislators for serious consideration. State legislators may call this office to discuss this proposal and the matters contained herein with us.

Thomas A. Glessner is President of NIFLA (www.nifla.org) and can be contacted at 540-372-3930 or NIFLA@aol.com.



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