Unfortunately, most commentators on both sides treat the ultrasound statute simply as a proxy for abortion itself. Pro-choice advocates treat the statute as if it is a de facto ban on abortions (which it clearly is not, from a legal standpoint), and some pro-lifers talk about this as if this is the pro-life movement's last stand (which it also clearly is not - the pro-life movement is making progress on many fronts right now). So the public debate right now is largely ignoring the law itself and just hollering about women's bodies etc. My thoughts on the statute continue below the line break - click "read more."
As for the statutes themselves, which are all very similar, borrowing heavily from one another - the opponents have the more awkward argument here, revealing how clever this was strategically for the pro-lifers who sponsored the bill. Opponents must base their argument mostly on First Amendment/free speech grounds, pointing to the medical staff being "forced" to inform abortion patients of something (the ultrasound image of the unborn child), and then slide from that into the argument that this constitutes a restriction on women's rights to control their pregnancies. The problem is that they must argue that women have greater protection of their rights by being LESS INFORMED about their choice. Nothing in the statutes requires the women to look at the ultrasound screen, or to refrain from having an abortion; nor does it forbid doctors from saying things to persuade the girl to have the abortion anyway (maybe something like, "But your social life is more important!") so that the doctor can still get his fee for doing the abortion. Of course, pro-abortion litigators will claim that the information traumatizes a woman who has already made a painful decision - but if there is nothing wrong with it and the fetus is not a person, why should she feel traumatized? And if the ultrasound reveals something that might make her feel guilty about having an abortion, isn't that a point worth considering before making the decision, rather than afterward? The arguments against the statute cannot avoid sounding paternalistic and aggressively pro-abortion - they don't want women to have full awareness of what they're doing or fully-informed consent, precisely because this might convince them to forego the abortion. Even though that would appear to most people to be the woman's choice, it's not the choice that pro-choice advocates want.
Admittedly, the "compelled speech" argument has some superficial appeal - nobody should be forced, for example, to declare their love for some President or other political leader, or to recite another religion's creed. Legally, however, we have a special situation with medical procedures. We do, in fact, require all sorts of disclosures to patients in order to have "informed consent." We require drug manufacturers to warn consumers of potential side effects of their drug - even very rare side effects that are unlikely to affect the patients receiving the warnings. The medical malpractice tort arena functionally requires doctors to warn patients about risks and possible consequences, to advise them of all alternatives, and so forth - or to face massive lawsuits if they don't. So requiring abortion doctors to fully inform patients about what the procedure involves (i.e., exactly what will be terminated) simply treats them the same as doctors in every other field. It's a little hard to see why abortion patients need to be shielded from certain information about their condition and the procedure, unlike patients having anything else surgically removed or excised.
Equal treatment for abortion doctors in other areas seems long overdue. Unlike other ob-gyn doctors, abortion docs often get a free ride from medmal lawsuits - even when they do something wrong and puncture a uterus or negligently allow septicemia to enter - because women who have abortions are so unlikely to come forward and sue their doctors over a botched abortion. So they do not get sued in proportion to the harms that occur in comparable measure to other medical professionals, and abortionists' medmal insurance does not reflect the risks to the patients involved in these procedures. Apart from the issue of whether abortion is murder, it seems to me that women's rights advocates should be pressing for more accountability for the doctors who perform abortions, to ensure women's safety and to provide them with adequate recourse when a doctor negligently injures them.
We also have to consider the fact that abortions are heavily subsidized by taxpayers - and it is fairly common to have public funds come with strings attached, mandatory disclosures. If abortion were an enntirely private matter, it would be a little different - but not different enough, I think, to change the outcome of the case. But abortion is not a private matter. It's something that taxpayers are asked to subsidize, that the government is supposed to help make available - which means, in a representative democracy, that the disbursement of funds is likely to come with some conditions, like providing certain warnings or information about alternatives.
Back to what the Supreme Court will do if they get this case: it's truly hard to say, because they will also probably treat this as a proxy for abortion itself (and, for some of them, abortion in turn is a proxy for other issues, like sexual freedom for women). If the statute were about anything but abortion, I think they would uphold it - it's just another informed consent requirement for a health care system replete with informed consent mandates and obligations. But I fear that most of the Justices, like most pundits, will see the statute for what it symbolizes, not for what it actually says. With the current makeup of the Court, it would probably be a 5-4 decision with Kennedy as the swing vote - and he could go either way on this. Given that the case will not go up until after the presidential election, we could have a change on the Court - a disruption of the current partisan equilibrium there. If Obama wins reelection, he will almost surely get to replace one of the older conservative justices with a pro-choice liberal; if Romney wins, he will almost surely get to replace Ginsburg with a pro-life conservative.
Perhaps they will suprise us, though, with what abortion itself symbolizes for them. The underlying context for abortion rights has changed significantly since 1973, when the Court decided Roe v. Wade - basically, abortion is far less necessary now. Contraceptives are readily available to minors at every grocery store, pharmacy, and gas station - and are free in most high schools. It is a little hard to sympathize with someone who gets pregnant today "accidentally," when it is so preventable with the minimum level of responsibility - it's hard to justify legal protections for something as controversial as abortion (which nearly half the population considers murder) merely as a backup contraceptive for particularly irresponsible women. I remember Obama talking about "what if my own daughter made a mistake?" - but mistakes are not all created equal. There are understandable, hard-to-avoid mistakes, and then there are irresponsible, entirely preventable, somewhat-unforgivable mistakes. Anticipating at this point an objection about women who are raped, statistically pregnancies from rapes are extraordinarily rare - and if we allowed states to decide for themselves what to do about abortion, I believe most or all would allow for exceptions in documented cases of rape or serious endangerment to the physical life of the mother, and this would be rather uncontroversial for most conservatives. In addition, the social stigma of having a child out of wedlock has almost completely disappeared in the last 40 years - in some communities, ALL the children are born out of wedlock now. Unwed mothers today attend college and law school, have successful careers, find marriage partners, etc. It is hard to imagine that we would see a return of the abortion black market that we had in the 1960s when the culture was different - most unmarried pregnant women today would not be as desperate for abortion as they were in the pre-Roe era. Society now has embraced single motherhood and made it fairly normal.
As a result, the pro-choice rhetoric has shifted in recent years toward the "bodily integrity" arguments - rather than talking about how the woman cannot afford to have a child, they focus on the fundamental right to control your own physical body. Justice Stevens recently published a memoir in which he says he wishes Roe v. Wade had been based on this rationale instead of the more fanciful "penumbras" of a "privacy right" that does not appear in the text of the Constitution - the penumbra argument used in Roe. The problem with the bodily-integrity argument is that it makes abortion sound like a cosmetic procedure, as if we're arguing about a woman's right to get a face lift or a tattoo. And perhaps that is exactly how some patients are using abortion today - a way to prolong their carefree sexual adolescence, to put off the perceived frumpiness of motherhood, just as they would view nip & tuck procedures as a way to be forever 21. I hope not, but given the state of our society today, I worry that people are treating abortion as a type of cosmetic surgery, and the newish "bodily integrity" legal arguments nurse my fears in this regard. To that extent, introducing an ultrasound into the decision seems very wise and appropriate.
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