Written by Michael Stokes Paulsen
“Informed choice” legislation does not impede a woman’s ability to choose abortion. Such laws enlighten the abortion choice by making clear exactly what it is that is being chosen.
Last month, the US Supreme Court declined to hear the appeal of the Oklahoma Supreme Court’s decision to strike down a state law requiring that a pregnant woman have an ultrasound of her unborn child before having an abortion. Oklahoma’s state law had required that the pregnant mother be shown and told about the ultrasound and given information about the state of development of the fetal child gestating in her womb. The woman remained free to look away from the image, and she remained free to have an abortion, notwithstanding the information about the child’s state of development. Nonetheless, in Pruitt v. Nova Health Systems, the Oklahoma Supreme Court held that the law was an unconstitutional interference with the constitutional right to choose abortion.
As a legal matter, the Oklahoma court’s decision was utterly indefensible. Even by the remarkably pro-abortion standards of the US Supreme Court’s jurisprudence, a right to choose abortion is not abridged by requirements designed to inform that choice.
The US Supreme Court made all this rather plain in its (otherwise horrible) 1992 decision in Planned Parenthood v. Casey, which reaffirmed the right to abortion created in Roe v. Wade (1973). The court ruled that informed-choice requirements properly can include “truthful, non-misleading information” about the gestational age and developmental status of the unborn child, in order to ensure “that a woman apprehend the full consequences of her decision,” including the (literally life-and-death) “consequences to the fetus.”
Oklahoma’s ultrasound requirement plainly fits into this category. The Oklahoma Supreme Court’s decision to the contrary, which claimed to rest on the Casey precedent, is almost inexplicable. At the level of mere technical legal skill and reasoning, the opinion is simply incompetent.
The US Supreme Court’s decision not to review the Oklahoma decision is disappointing. To be sure, it does not endorse the Oklahoma Supreme Court’s decision. A decision to decline review technically says nothing about the merits of the earlier decision. It simply leaves the lower court's decision alone, making it a precedent applicable in Oklahoma state courts only and invalidating only this particular Oklahoma statute.
Nonetheless, Nova Health Systems may be the proverbial “One That Got Away”—a lost opportunity to have repudiated a deeply misguided decision and, further, to have upheld an important category of legislation that even those who consider themselves pro-choice should support.
Mandatory ultrasound requirements before obtaining abortion are potentially very important and useful, and they are fully constitutional. They serve to enlighten the abortion choice by making clear exactly what it is that is being chosen. That can, and should, change many women’s minds about aborting the life they are carrying. And changing minds—persuasion—is fully consistent with the notion of choice, and thus constitutional even under Casey.
In 1988, when ultrasound use was still fairly new, a young colleague of mine, Kim, was pregnant with her second child. At one of her doctor visits, Kim had the opportunity to see her unborn baby boy on the ultrasound screen and received the now-familiar picture for the refrigerator door.
“That’s the way to stop abortion,” Kim told me. Just show the pregnant woman her living unborn baby, moving in her womb. “No one could see that and have an abortion. You don’t need to ban abortion or overrule Roe. You just need to show the woman her baby.” No pregnant woman, she believed, could see what she had seen and conclude that this was just an inanimate, inconsequential mass of tissue. The implication was that no woman with a trace of moral sense and natural empathy could then choose to kill her child.
To be sure, that might not be true in every case. Some women, shown ultrasounds of their pregnancy, abort anyway. But my friend Kim’s intuition was, and remains, a powerful one: seeing is believing. Facts, verbal descriptions, and logic lack the same persuasive, emotional force of seeing what abortion is, and what exactly—who exactly—it is that is being killed.
Most people, I believe, have basically good moral sense. But moral intuitions misfire, given insufficient information, insufficient reflection on such information, pervasive social pressure and cultural bias, or corrupting personal interests that can overpower natural moral sense.
I am convinced that the reason many otherwise thoughtful, morally aware people consider themselves “pro-choice” on abortion—and why at least some women are emotionally able to abort their babies—is some combination of ignorance about the basic facts of life, illogic in processing the moral implications of such facts, acceptance of false representations made by others, self-interest resulting in nearly willful blindness to facts, and simple cowardice. The proportions may vary in each case.
But I suspect that there are precious few who support legal abortion (outside of the most compelling, tragic situations of true self-defense), or who engage in abortion, who both fully understand the facts of what abortion is and can reason through those facts to a moral conclusion in a clear-headed fashion un-swayed by social pressure or personal interest. For many, I believe, elective abortion is at some level an act of ignorance.
Start with the facts of abortion. The belief that the living, unborn human child, gestating in his or her mother’s womb, is not a distinct living human being is, as a matter of objective fact, almost incomprehensibly ignorant. Abortion kills a distinct human being with a biological identity separate from the pregnant woman.
This is not a matter of opinion. It is not a matter upon which reasonable people can disagree. It is a scientific fact.
There may be some room, I suppose, for people to argue about the moral implications of this unavoidable fact. One could argue that killing a distinct human life is a matter of moral indifference; or that some human beings are subhuman and may be killed for the benefit of others; or that a pregnant woman’s interest in not being pregnant or becoming a parent justifies, in some or all circumstances, of which she is the sole judge, killing the unborn human life. Those are moral, philosophical, or religious questions. But the facts are just facts.
My friend’s intuition was that, for most people, these moral and philosophical questions are rather easy ones. It is wrong to kill human beings. It is no less wrong to do so because they are young, weak, vulnerable, or dependent upon another. It is wrong in principle, not to mention horrible in practice, for some human beings to treat other human beings as subhuman—to define them away, as entitled to no moral status or respect and therefore entitled to no consideration. And it is wrong, outside of exceptional circumstances, to kill another person simply because it benefits you.
For most people, these are agreed moral tenets. Thus, given the facts of abortion, my friend believed, most pregnant women would do the right thing, because they possess right moral instincts. They would not kill their children.
Of course, people are capable of great feats of self-deception when it comes to basic facts, especially when it seems to be in their interest to deceive themselves. People are capable of stunning fact-defying flights of imagination. We can be sheep-like at times, readily misled by disinformation. We are often eager to believe what it is convenient to believe.
More than that, people often don’t think straight: we don’t always evaluate information properly or reason clearly from premise to conclusion. We “think” in shortcuts, clichés, summaries, experiences, emotional reactions, and bumper sticker slogans. We don’t always use our heads.
It is often essential to show people facts that they may be disposed to slight, ignore, or distort. It is helpful to confront people who are facing a moral decision with core information in a form that enables them to truly apprehend the facts and consider their implications. Thus, a requirement that a pregnant woman contemplating abortion view an ultrasound of her unborn baby, in real time, and be told and shown that her baby is living, could potentially have an enormous impact. If a pregnant woman actually sees her baby, she may rethink her decision to have an abortion.
That is the driving force behind state laws mandating ultrasounds and pre-abortion information. These laws are designed to inform and persuade, based on the premise that vivid, visual information and verbal explanation will make a difference in the woman’s choice.
Abortion advocates realize this, which accounts for the vehemence of their opposition to ultrasound requirements. Such requirements are designed to show and tell. The pro-abortion argument against them is, in a nutshell, that it is an unconstitutional impairment of the freedom to choose abortion to be shown and told, in words and in living, real-time moving pictures, what abortion is. Knowledge is bad. And, at a certain level, the pro-abortion side is right: if more women knew what abortion is, and does, and could see their contemplated victims, going forward with such killing likely would more greatly burden their hearts and minds.
Pro-abortion critics also deride such laws on the ground that they are condescending or paternalistic, arguing that women know exactly what they are doing when they are choosing abortion. But do they always? Do all women seeking abortions fully understand abortion? Have they all given careful consideration to the morality of killing their unborn child based on full information about that child?
Frankly, I doubt that this is the case. I believe that many women having abortions, and the men and women who often press this choice upon the pregnant woman, do not know—do not really, fully, apprehend—the reality of abortion. And doubtless many others would prefer not to think about it too intently.
If some pregnant women would be influenced by fuller information and understanding into choosing not to have an abortion, there is much to be gained by ultrasound requirements. And if other women do fully understand what abortion is, and who it is that is being aborted, there is little to be lost by such requirements. It may make the choice a little more uncomfortable, even anguished—as it should. But it does not prevent the abortion choice itself, if the pregnant mother remains determined to kill her unborn child.
As I have written elsewhere, the Court’s decisions in Roe and Casey permit abortion on demand, throughout pregnancy, for essentially any reason that the woman and the abortionist think appropriate. But Casey and subsequent cases do permit the state to weigh in on the abortion choice—by favoring childbirth over abortion, by legislation establishing “informed consent” requirements concerning the nature of abortion and the life of the child in the womb, by imposing waiting periods for reflection before abortion, and even by expressing the state’s view as to the moral wrongness of abortion—as long as such actions do not present a “substantial obstacle” to choosing abortion, and the pregnant woman retains the ultimate power to decide whether or not to abort her child.
As the Court put it in Casey, “States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.” They may require that abortionists provide “truthful non-misleading information” to ensure that the pregnant woman will “apprehend the full consequences” of abortion, including information making clear “the consequences to the fetus” of abortion.
Under these standards, the constitutionality of ultrasound requirements is absolutely clear. They provide truthful information about the status of the unborn child. They show the woman that there is a separate human life developing within her. They introduce her to that life, showing her who it is that the contemplated abortion will kill. They make plain “the consequences to the fetus.”
Why, then, did the Supreme Court decline to review the Oklahoma Supreme Court’s plain error in Nova Health Systems?
One answer might be that there was no direct “conflict” on the issue in lower court decisions, a standard the Court often uses for deciding what cases to review. This is not fully convincing, however, as the Fifth Circuit has upheld Texas’s ultrasound law, in an only slightly different legal challenge. Another answer might be that the Oklahoma state court decision was so thinly and badly reasoned as to not count much as a harmful precedent.
Or it simply might be that not enough Supreme Court justices had the stomach for yet another 5-4 fight over the deeply divisive social issue of abortion. Perhaps neither the more conservative bloc of justices nor the more liberal bloc was confident that the outcome would be 5-4 in their favor rather than 5-4 against them. The swing vote, Justice Anthony Kennedy, has been unpredictable on abortion and other social issues. While ultrasound requirements would seem to be an easy case for him—he wrote or co-wrote the decisions embracing a broad power of the state to insist on informed consent before abortion—there is always reason to be nervous if your case for a sound and important constitutional principle depends on the vote of Anthony Kennedy.
Still, the issue is destined to return to the Court. Pro-life legislators around the country are rightly realizing the importance and persuasive impact—the literally life-saving potential—of ultrasound requirements.
A picture is worth a thousand words. And a picture of a living, moving baby, growing in his or her mother’s womb, may be worth several thousand lives.
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (“PLACE”).
A Picture Is Worth a Thousand Words: The Constitutional Soundness of Ultrasound Requirements appeared in Public Discourse: Ethics, Law, and the Common Good, the online journal of the Witherspoon Institute of Princeton, NJ"; and is reprinted with permission.