Hoist With Their Own Ultrasound Probe…

This is a story about abortion politics, political correctness, and principle, or the lack thereof…

The Virginia legislature recently passed a bill. As with most legislation, the actual history is somewhat complicated. In the House, Republican delegate Mark Cole introduced HB 261. It was subsequently amended by HB 462. Sister legislation in the Senate, SB 484, was simultaneously introduced by Republican Jill Holtzman Vogel. These bills sought to mandate that every woman, prior to undergoing an elective abortion, obtain an ultrasound (US) to determine fetal age.

This kind of Nanny State tinkering, the micromanaging of health care provision, could be opposed on many grounds. For example, it could be opposed by traditional conservatives for involving the State in physician/patient relationships; it could be opposed by fiscal hawks for unnecessarily adding to the cost of medical care. It could be opposed by libertarians on the grounds the State has no role in women’s choices about their own body, to say nothing about doctors’ choices in how they offer services.

But the political Left got their marching orders, it seems, because the widest opposition came from liberals screaming that evil conservative legislators were forcing women to have their intimate parts probed prior to being allowed their right to an abortion.

For example, Democratic Virginia delegate David Englin released the following statement in response the same day the House of Delegates gave preliminary approval to House Bill 462:

“This bill will require many women in Virginia to undergo vaginal penetration with an ultrasound probe against their consent in order to exercise their constitutional right to an abortion...only an invasive transvaginal probe ultrasound can effectively determine gestation age during much of the first trimester, which is when most abortions occur.” It turns out the claim that ONLY a transvaginal US “can effectively determine gestation age during MUCH of the first trimester” is simply false.

This allegation was picked up by both Lizz Winstead of The Guardian and Slate.com’s legal analyst Dahlia Lithwick:

The Guardian: “When this story broke, I had so many questions. The immediate ones seemed so basic. I wondered why [VA GOP Governor] Bob McDonnell is so cruel. I wondered why Bob McDonnell felt he had the legal authority to force doctors to rape their patients.”

Slate.com: “This week, the Virginia state Legislature passed a bill that would require women to have an ultrasound before they may have an abortion. Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced.” For the whole piece, go here.

So you get the picture, if not the actual US image: ”require vaginal penetration...with an ultrasound probe,” “forced to have a transvaginal procedure,” “legal authority to force doctors to rape their patients.” The Left is never accused of subtlety.

Here’s the actual pertinent excerpt of HB 261:

§ 18.2-76B:  Except in the case of a medical emergency, at least 48 hours before the performance of an abortion, a licensed physician or a qualified medical professional working under the direct supervision of a licensed physician shall perform a limited ultrasound examination on the patient undergoing the abortion to confirm the presence of a viable intrauterine pregnancy. 

HB 462 amended the above, to add in relevant part: The ultrasound image shall be made pursuant to standard medical practice in the community, contain the dimensions of the fetus, and accurately portray the presence of external members and internal organs of the fetus, if present or viewable. Determination of gestational age shall be based upon measurement of the fetus in a manner consistent with standard medical practice in the community in determining gestational age. When only the gestational sac is visible during ultrasound imaging, gestational age may be based upon measurement of the gestational sac.

Note the word “transvaginal” does not appear. No detail is mandated on how the US must be performed, beyond saying it must be consistent with standard medical practice, something any doctor not wishing malpractice suits does as a matter of course. Meanwhile the legislation DOES use the word “limited” to describe the US procedure. That would tend to speak against including TVS, since fetal US begins with TAS, adding TVS only as needed.

A medical imaging aside: there are two ways to perform a fetal US. 

•By slapping “jelly” and the probe on the patient’s pregnant belly, called a transabdominal sonogram (TAS), or..

•By placing a specially designed condom-covered US probe into the vaginal canal and imaging from the cervix into the uterus--called a transvaginal sonogram (TVS). 

US images are better (have a higher spatial resolution) the closer the probe is to the area of interest, so TVS works better in some circumstances, TAS in others. In mid second-trimester pregnancy, when most women are imaged during routine OB evaluations (and therefore what the Virginia legislators likely, though incorrectly, had in mind), fetal parts are closer to the abdominal wall, and so TAS is often all that is needed. In early pregnancy, TVS is often better. For example, TVS can detect the gestational sac that will house the pregnancy by 4.5 weeks (measured from last menstrual period, or LMP) while TAS may take as long as 6 weeks, a 10 day difference. 

Here’s the intellectual error: In the context of a fetal US in early pregnancy desired by both patient and doctor, not coerced by the State, a vaginal probe is often helpful, and thus often (not always) used. From that medical fact Winstead, Lithwick, Englin and others leap unwarrantedly to the assumption that a doctor, attempting to comply with the law, with a patient who doesn’t desire a vaginal probe, has no other option than to force compliance on the patient. That’s simply false.

As a matter of routine US imaging protocol, in keeping with the laws against battery, women are of course free at any time to refuse a TVS, even when the doctor advises it may be helpful. For the sole purpose of assessing gestational age (the alleged point of the legislation), this might at most demand a 10 day wait and repeat US. On reading the proposed legislation, nothing is mentioned regarding HOW the US is performed. So the claim the legislation mandates an invasive US is clearly a stretch, albeit a politically savvy one. 

As a practical matter, this legislation doesn’t even require a repeat US in 10 days; for women who know their LMP, and schedule a visit to arrange an abortion, it simply means the first visit will be scheduled 10 days later than would otherwise be the case.

We can say even more. For there is a short period of a week or two in early gestation when TAS shows only the gestational sac, the fluid-containing structure in which the fetus will grow and develop, while the more sensitive TVS will show not only the gestational sac but also, within it, the smaller fetus. One measurement of gestational age is the sac diameter. Another is the fetal length. Note the legislation states: “When only the gestational sac is visible during ultrasound imaging, gestational age may be based upon measurement of the gestational sac.” It doesn’t say, “when only the gestational sac is visible, a more invasive US method is mandated to assess fetal length.” Thus it is clear this proposed legislation is being twisted for reasons of political rhetoric.

Some conservatives, apparently just back from watching a Mad Men marathon, have made the unfortunate claim they find it unusual for a woman to object to an US probe being placed in the same area she desires a suction device be placed in the near future. Englin alleges a “conversation with a GOP lawmaker who told him that women had already made the decision to be ‘vaginally penetrated when they got pregnant.’”  Of course, the Left is right that it is the preference of the woman, or the patient, that distinguishes rape from lovemaking, and battery from a simple and routine imaging procedure.

Nonetheless, there will be a price to pay for the Left’s insistence in painting this story as one of metaphorical Republican rape. Their vitriolic rhetoric makes it sound as if this was the INTENT of the Virginia legislature. A February 22nd Washington Post article quotes the female Senate author of SB 484 explaining “she did not realize that the ultrasound would not be external [and] was shocked to find TVS might be used.” According to the Post article, “McDonnell, Virginia Republicans back off mandatory invasive ultrasounds,” by Anita Kumar and Laura Vozzella, “Many lawmakers did not understand that at the young fetal age abortions usually occur, the invasive vaginal ultrasound would be needed to establish gestational age, as required by the bill.” This is technically wrong in the sense that there are other alternatives, like waiting a week, but, again, makes it clear the legislators were not intent on “raping” their constituents. This shows the lie in the claims on the Left that the legislation MANDATED TVS. And there’s the problem…

For the fact is, if you support abortion rights and oppose State intervention in the doctor-patient relationship, you should be equally opposed to TAS mandates. Laying an US probe on the patient’s abdomen is also battery if the patient doesn’t want it.

More importantly, the article notes the Republicans are now working to modify the legislation so that it will still mandate a fetal US prior to abortion, but will clarify that nothing in the legislation mandates it be done transvaginally. As Kumar and Vozzella put it, “Republican lawmakers on Wednesday in essence said that an abdominal — or ‘jelly-on-the-belly‘ — ultrasound before an abortion would still be required but that vaginal ultrasounds would be voluntary. “

And at that point, the Right will have won. The Left, having protested only the “intimate” nature of the mandate, will have no principled reason for continued opposition...they will have been hoist, so to speak, with their own US probe.