Forced Ultrasound

Forced ultrasound laws require that providers perform an ultrasound within a specified period of time before a woman obtains an abortion in order to fulfill state “informed consent” requirements for an abortion procedure. Many ultrasound laws also contain “speech and display” requirements, which require the provider to show and describe the ultrasound image to a woman seeking an abortion. Ultrasounds are medical procedures generally performed for various reasons at the advice and discretion of a doctor and her patient. Because legislation mandating such procedures circumvents professional medical guidance and discretion and the consent of the patient, we refer to these as “forced ultrasound” laws.

The purported purpose of these forced ultrasound laws, which are based on a model bill authored by Americans United for Life, is to ensure that women make an informed choice about whether or not to get an abortion, to promote the woman’s physical and psychological health, and to protect a state’s interest in protecting life. In reality, however, these laws compel doctors to perform medically unnecessary procedures, raising the costs of abortion care, and imposing additional burdens on the free exercise of women’s rights.

Mandatory ultrasound laws attempt to dissuade women from getting an abortion using emotional appeals and manipulation. However, the attempt is almost always unsuccessful: One study demonstrates that women who view an ultrasound image are not likely to change their mind about going through with the abortion. Another study shows that Texas’s law in particular is a burden on women and does not dissuade most women from getting an abortion.

Mandatory ultrasound laws undermine a key provision of Planned Parenthood v. Casey, which prohibits regulations that pose an “undue burden” on a woman’s constitutional right under Roe v. Wade to choose an abortion.

Forced ultrasound bills raise additional constitutional concerns. The “speech and display” requirements of the laws compel doctors to provide potentially unnecessary and medically irrelevant information, and may violate the First Amendment, which proscribes compelled speech in certain circumstances. Also, the laws may force women to undergo medical procedures to which they have not consented, thus violating their 14th Amendment due process rights.

In addition, forced ultrasound laws require doctors to violate medically established guidelines set forth by the American Congress of Obstetricians and Gynecologists (ACOG), which state that the use of ultrasonography without a medical indication is not only inappropriate, but also contrary to responsible medical practice.

Examples of Forced Ultrasound Laws (last updated September 12, 2018)

According to the Guttmacher Institute, twenty-six states regulate the provision of an ultrasound by abortion providers. Fourteen states have forced ultrasound laws. Three of those states–Louisiana, Texas, and Wisconsin—require the abortion provider to display and describe the ultrasound image. Nine states—Alabama, Arizona, Florida, Indiana, Iowa, Kansas, Mississippi, Ohio, and Virginia—require that the abortion provider offer an opportunity to view the image. None of these states expressly require the use of a transvaginal ultrasound. However, many of these states require that the ultrasound image depict the dimensions of the fetus and the presence of the fetus’s external members and internal organs. This sort of detail can only be achieved by using a transvaginal wand, because transvaginal ultrasounds produce higher quality images at earlier gestational stages than transabdominal ultrasounds do. For this reason, in practice, these laws force women to undergo a transvaginal ultrasound in order to obtain an abortion.

The U.S. Supreme Court has yet to address the constitutionality of forced ultrasound laws. Lower courts, however, have reached conflicting conclusions. In 2011, after a district court blocked Texas’s sonogram law, the Fifth Circuit Court of Appeals reversed that decision and ruled that the law is constitutional. Texas’s law is currently in effect.

In 2012, Oklahoma’s forced ultrasound law was permanently blocked by the Oklahoma Supreme Court on state constitutional grounds. The U.S. Supreme Court declined to review the decision.

In 2014, a federal district court judge permanently blocked North Carolina’s forced ultrasound law. In March 2015, North Carolina appealed the Fourth Circuit ruling to the U.S. Supreme Court. In June 2015, the Supreme Court declined to consider North Carolina’s appeal. The Fourth Circuit’s ruling is therefore final.

In January 2017, the ACLU filed a lawsuit challenging Kentucky’s forced ultrasound law. On September 27, 2017, a federal court struck down HB 2, stating that the law violated the First Amendment rights of physicians.

Mandatory ultrasound laws attempt to dissuade women from getting an abortion using emotional appeals and manipulation. One study demonstrates that women who view an ultrasound image are not likely to change their mind about going through with the abortion. Another study shows that Texas’s law in particular is a burden on women and does not dissuade most women from getting an abortion.

Nevertheless, state legislatures continue to introduce these laws, many of which are based on AUL’s model “Woman’s Right to Know Act.”

Laws