ONE OF the most thrilling moments for many pregnant women is the sight of the first ultrasound scan: that blurry photo in which, with some help from a friendly technician, one might recognize something like a nose, and maybe even a nose that seems to have a family resemblance.
Thirty years ago, women knew they were really pregnant–“with child”–when they felt the baby move. Nowadays they know by sight, and so do their friends and family. Ultrasound scans are passed around at lunch among co-workers, printed on Christmas cards, and made into refrigerator magnets. The ultrasound scan now takes pride of place as the first picture in baby’s album, and the initial screening is typically experienced with excitement and anticipation.
At least that’s the story when a pregnancy comes as happy news. But what is ultrasound like when a pregnancy is not a welcome event? And should a woman who plans to have an abortion be required by law to look at the ultrasound image of her fetus first? Sixteen states have aleady enacted some form of mandatory ultrasound statutes.
What purpose does an ultrasound screening serve when a pregnant woman has decided for any of the reasons that regularly influence women’s decisions—finances, aspirations for the future, obligations to her existing children, and the woman’s health or the health of the fetus—that she will not continue her pregnancy? The answer to the last question has, until recently, been purely a medical matter. Doctors sometimes administer an ultrasound before performing an abortion in order to accurately date the pregnancy; this enables them to determine from a medical perspective which method of abortion is the most appropriate. However, in the last five years, ultrasound before abortion has moved from a matter of medicine to a matter of law, as legislatures have begun to require an ultrasound as a prerequisite to abortion consent from the physician.
The idea seems to be that unless women see for themselves what their own fetus looks like, they won’t understand what is at stake in an abortion. In the language of a South Dakota statute, women will not understand that abortion “terminates the life of a whole, separate, unique living human being.” Mandatory ultrasound is meant to prove this proposition by visually transforming an embryo or fetus from an abstraction into one’s own son or daughter.
For example, Alabama requires every woman to sign a written form before consenting to an abortion stating that “she either saw the ultrasound image of her unborn child or that she was offered the opportunity and rejected it.” The Oklahoma statute requires the physician (or technician) to not only show the woman the ultrasound but also describe to her, while she is on the table, exactly what is being shown: the size of the embryo or fetus, the heart, the limbs, and so on. But fetal images mean different things to different women. For some pregnant women, an ultrasound scan may be a cherished first portrait. For others, the image may represent a form of life or of developing life. For still others it may register more like an x-ray, a technological depiction of what’s inside, an image of what was once referred to as pregnancy.
Mandatory ultrasound is intended to convince pregnant women to take a pro-life view of abortion—and to accept that from the moment of conception, a fetus is the moral equivalent of a child. This is accomplished not only through the images of the sonograms but through the experience itself. Ultrasounds are an ordinary step in pre-natal care, but in the case of a woman who is seeking an abortion, the effect of a mandatory ultrasound is to force her to participate physically in what has become a rite of full-term pregnancy. The screening thrusts them into the social category of pregnant women, however brief they intend that status to be.
Moreover, there is something both invasive and unjust in requiring women to display their innards in the state’s effort to make its case against abortion. The process is an intrusion into a woman’s bodily privacy. She must lie down, partially disrobe, expose her abdomen, and be stroked with a scanning wand. The Oklahoma statute requires the doctor to use whatever sort of transducer (wand) that will produce the clearest image: either a tummy wand or, as the statute specifies, the newer vaginal probe for the very earliest states of pregnancy (when there is almost nothing to see).
All of this is framed by a new conception of informed consent—one that insists that a woman must look her fetus in the eye before she can truly grasp the significance of an abortion. The premise is that absent fetal imagery, pregnant women won’t take abortion seriously. But women understand very well what an abortion is. They know that by virtue of having an abortion, they will not have a baby. Women also understand what having and raising a baby entails. Consider that 60 percent of the million or so women who have abortions in the United States each year are already mothers.
Mandatory ultrasound isn’t really about improving the quality of consent. Almost everyone already knows what an embryo or a fetus looks like without having to be scanned and given pictures, and signing a statement about their unborn child. States already require women to look at brochures detailing fetal development.
So what is going on? Mandatory ultrasound combines a visual politics with visual technology in a legislative attempt to encourage women to choose against abortion. The statutes cleverly and cruelly capitalize on the socialized meaning of fetal imagery. But requiring a pregnant woman to undergo ultrasound blurs medically informed consent with what we might think of as morally informed consent, that realm of personal considerations that are women’s alone to array and assess. Of course, a woman may choose to look at an ultrasound before deciding about abortion. But deploying the image of her own fetus as a matter of law intrudes too deeply into the decision-making process.
Mandatory ultrasound is about punishing women who take motherhood seriously but who differ from pro-life legislators in their understanding of just what that means. By insisting that women take a particular and literal view of fetal existence, the legislation attempts to ensure that women who abort will feel as guilty as possible. In short, the statutes are about making abortion harder for women by imposing the view that abortion is murder.
Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School.