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.

Many believe that 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 April 2, 2014)

According to the Guttmacher Institute, 12 states have forced ultrasound laws. Three of those states—Louisiana, Texas, and Virginia—require the abortion provider to display and describe the ultrasound image. The remaining nine states—Alabama, Arizona, Florida, Indiana, Kansas, Mississippi, North Carolina, Ohio, and Virginia—require that the abortion provider offer an opportunity to view the image.

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’ sonogram law, the Fifth Circuit Court of Appeals reversed that decision and ruled that the law is constitutional. Texas’ law is currently in effect.

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

In January 2014, a federal district court judge permanently blocked North Carolina’s forced ultrasound law, which required abortion providers to display and describe an ultrasound image to a woman at least four hours before she obtains an abortion. The court ruled that the law violates the First Amendment because it compels “providers to speak the state’s message to women who refuse to hear it or who would be harmed by it.”

Whether or not North Carolina will appeal that ruling to the Fourth Circuit Court of Appeals is an open question: Gov. Pat McCrory does not support appealing the district court’s ruling, but Republicans in North Carolina do. Should the Fourth Circuit rule that North Carolina’s law is constitutional, the resulting circuit split between the Fourth and Fifth Circuit Courts of Appeal would make the issue appropriate for Supreme Court review.

This summary was last updated April 8, 2014.

Laws