Is Virginia’s new pre-abortion ultrasound requirement constitutional?

March 9, 2012


Earlier this week, Virginia’s Governor Bob McDonnell signed a law that is sure to make the ultrasound machine lobby very happy.

The law requires every woman seeking an abortion to undergo transabdominal ultrasound imaging at least 24 hours before the abortion is to be performed.

The question on many legal minds is whether the new law is constitutional.

Though there have been several Supreme Court rulings on the constitutionality of abortion restrictions, the test on which restrictions are constitutional has remained the same ever since 1992’s Planned Parenthood v. Casey.

That test is the “undue burden” test, which finds a regulation restricting access to abortion is invalid if it has the purpose or effect of placing a substantial obstacle in path of woman who seeks an abortion.

It’s relevant to note here that Casey also held that a regulation’s incidental effect of making it more difficult or more expensive to procure abortion is not enough to invalidate it under the analysis.

So how does the “undue burden” test apply here?

Under the test, the question is whether the imposition of the new ultrasound requirement amounts to a “substantial obstacle.”

Unfortunately, we don’t get a much of a precise definition from the Supreme Court of “substantial obstacle.”

Luckily, though, the Casey ruling still provides some guidance here, since it analyzed several different kinds of abortion restrictions.

Upheld by the Casey ruling were the informed consent requirement, the 24-hour waiting period requirement, the parental consent provision, and the reporting and recordkeeping requirements.

The only restriction voided by Casey was the spousal notification requirement.

Now, back to Virginia’s new law.

Although the requirement of an ultrasound examination doesn’t seem to fit in any of the above categories from Casey at first glance, the law amended Virginia Code § 18.2-76 – titled “Informed written consent required; civil penalty.”

If the law’s statutory placement weren’t enough to convince you, the new regulation explicitly states that the purpose of the ultrasound is to determine the gestational age of the fetus and provide that information to the mother (so she is as informed as possible).

Of course, if the fetus is early enough along in its development, a transabdominal ultrasound (the kind where the scanning device is placed on the woman’s stomach) won’t be able to detect it, as required by the statute.

In such a scenario, a vaginal ultrasound is required.

Here is where the statute would almost certainly cross over into the “undue burden” territory…if it had actually mandated vaginal ultrasounds.

Governor McDonnell and other Republican lawmakers had supported such a mandate in prior versions of the bill, but backed away from it by the end, and this probably saved the law from being found as unconstitutional.

In fact, the rest of the law seems specifically tailored to sail through the courts without a hitch:

  • It exempts victims of rape or incest and in emergency situations.
  • It cuts the waiting period to two hours if the pregnant woman lives at least 100 miles from the facility where the abortion is to be performed.
  • The pregnant woman can refuse to view the ultrasound image or hear the “fetal heart tones” (though the doctor is still required to ask her if she would like to).
  • The pregnant woman is to be furnished a list of ultrasound providers that perform the procedure free of charge.

The only way the law would have a constitutional problem is if there were some scenario in which a pregnant woman believed that the ultrasound posed some health risk to her (and not just the fetus’s) health.

Even in such a circumstance, a court could well dismiss her concerns as unreasonable.

Accordingly, unless the Supreme Court unexpectedly moves away from the current “undue burden” standard to something not quite as deferential to the states, Virginia’s new law will likely survive any constitutional challenges against it.