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IN THE COURTS | Oklahoma Judge Strikes Down State Ultrasound Law

IN THE COURTS | Oklahoma Judge Strikes Down State Ultrasound Law
[Aug. 19, 2009]

Oklahoma County District Judge Vicki Robertson on Tuesday struck down a state law (SB 1878) that required doctors to perform ultrasounds and provide women with detailed information about the image before performing abortions, the Washington Post reports. Robertson ruled that the law, which also included other abortion-related measures, violated a state constitutional provision that laws address only one subject.

Although 13 states have ultrasound laws, Oklahoma's was the strictest in the country, according to the Post. It required any woman seeking an abortion to have an ultrasound and listen to a description of the image in detail, including organs and extremities, even if she objected (Lydersen, Washington Post, 8/19). The law was passed in 2008 but never went into effect because of legal action (AP/Google News, 8/18).

A clinic in Tulsa, Okla., run by Nova Health System, represented by the Center for Reproductive Rights, filed the lawsuit, which claimed that the law violated the state constitution's "single-subject" rule and infringed on women's privacy rights, violated their dignity and endangered their health (Washington Post, 8/19). The suit also said that the law was unconstitutionally vague and was not clear about what doctors should tell women (AP/Google News, 8/18).

CRR attorney Stephanie Toti said that the law could have forced the Nova clinic and two others in the state to close. "We hope this sends a message to legislatures around the country that the constitution matters," Toti said, adding, "They can't trample on anybody's constitutional rights when passing these restrictive laws" (Washington Post, 8/19). According to Toti, the ultrasound requirement "takes away a patient's choice about whether or not to view an ultrasound, and it requires physicians to provide information to their patients that the physicians do not believe is medically necessary. It's an affront to women's autonomy and decision-making power, and it's also an intrusion to the physician-patient relationship" (AP/Google News, 8/18).

Other provisions in the law would have required doctors to follow FDA labeling when administering medical abortion drugs. According to Toti, doctors usually have the power to prescribe the drugs off-label, and placing such limits would counter recommendations from the American College of Obstetricians and Gynecologists. It also would have required signs in clinics telling women that they cannot be coerced into abortions, as well as protection for employees who oppose abortion (Washington Post, 8/19). In addition, the law would have prohibited wrongful life lawsuits in certain circumstances (AP/Google News, 8/18).

State Sen. Todd Lamb (R), who sponsored the bill, said that he likely will ask Oklahoma's attorney general to appeal Robertson's ruling. Mike Jestes, executive director of the Oklahoma Family Policy Council, said that if the courts uphold Robertson's ruling, the various parts of the bill would be introduced as separate pieces of legislation (Washington Post, 8/19).

Teresa Collett, special assistant attorney general for Oklahoma, said that she will meet with state officials to discuss a possible appeal. She added that the law clearly states what doctors are required to tell women about the ultrasound, including the dimensions of the fetus, and the presence of any cardiac activity, arms, legs or internal organs. "Common medical practice is to require doctors to provide patients with information that's necessary for them to make informed decisions," Collett said, adding, "We don't think abortion should be any exception" (AP/Google News, 8/18).

Elizabeth Nash, public policy associate for the Guttmacher Institute, said that antiabortion-rights groups began advocating for ultrasound laws in the 1990s, when seven such laws were passed. Antiabortion-rights groups have increased such efforts in recent years, Nash said, adding, "They really have come back and tried to use the issue of ultrasound to deter women from getting an abortion. We're really seeing a trend now." According to Guttmacher, because ultrasounds are considered medically unnecessary during the first trimester, when almost 90% of abortions take place, such laws are a "veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion" (Washington Post, 8/19).