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Law Requiring Ultrasounds for Abortions Is Struck Down
Oklahoma Judge Says Measure Violates State Constitution

By Kari Lydersen
Washington Post Staff Writer
Wednesday, August 19, 2009

An Oklahoma judge decided Tuesday that doctors do not need to perform ultrasounds and offer women detailed information about the tests before performing abortions, striking down the strictest such law in the country.

Oklahoma County District Judge Vicki L. Robertson ruled that the 2008 law, which included other abortion-related provisions, violated a state constitutional provision that requires laws to address only one subject.

Thirteen states regulate the provision of ultrasounds by abortion providers, according to the Guttmacher Institute, a reproductive-health think tank. The provisions have been pushed by abortion opponents as a means of deterring women from having the procedures.

The Oklahoma law, which was never enforced, was the first to mandate that any woman seeking an abortion must have an ultrasound and that doctors describe the image in detail, including organs and extremities, even if the woman objects.

A Tulsa clinic run by Nova Health Systems, represented by the New York-based Center for Reproductive Rights, filed a lawsuit charging that the law not only violated the state Constitution's "single-subject" rule but also infringed on a woman's right to privacy, violated her dignity and endangered her health.

The law could have forced Nova and Oklahoma's two other abortion clinics to close, said Stephanie Toti, staff attorney for the Center for Reproductive Rights, because doctors and employees would fear felony charges for violating vague components of the law.

"We hope this sends a message to legislatures around the country that the Constitution matters. They can't trample on anybody's constitutional rights when passing these restrictive laws," Toti said.

State Sen. Todd Lamb (R), the bill's principal sponsor, said he will probably ask the attorney general to appeal the ruling.

Mike Jestes, executive director of the Oklahoma Family Policy Council, said that he expects such an appeal and that, if courts uphold the judge's ruling, the various components of the law would be introduced as separate bills.

"It's a compilation of mini-bills; if this bill isn't upheld, those bills will need to come single-file through the same door," he said.

The law also could have forced doctors to follow FDA labeling in administering the medical abortion pill. Toti said this was of grave concern to clinic clients, because doctors normally have the power to prescribe drugs off-label. Such limits would run contrary to the American College of Obstetricians and Gynecologists' recommendations for the pill's use.

The law's other provisions included mandatory signage telling women they cannot be coerced into abortions and protection from employment discrimination for employees who oppose abortion.

Elizabeth Nash, public policy associate for the Guttmacher Institute, said that antiabortion groups began pushing ultrasounds in the 1980s. Several ultrasound laws were passed in the 1990s, and the groups increased their efforts in the past few years. "They really have come back and tried to use the issue of ultrasound to deter women from getting an abortion," she said. "We're really seeing a trend now."

Arizona and Florida require ultrasounds for abortions after the first trimester; Louisiana, Mississippi and Alabama mandate ultrasounds for first-trimester abortions. The Guttmacher Institute says that because an ultrasound is not considered medically necessary in the first trimester, when nearly 90 percent of abortions occur, it views such laws as "a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion."

Since 2004, the Christian nonprofit group Focus on the Family has placed 341 ultrasound machines in pregnancy crisis centers, where staff members typically discourage women from getting abortions. Carrie Gordon Earll, senior director of public policy for the group, said that women who have ultrasounds at the crisis centers are twice as likely to decide against abortion.

"With an unintended pregnancy, a woman is very much caught up in her own situation. You don't confront the humanity of the child you're carrying," she said. "Looking at an ultrasound before you make that decision can certainly reduce the regret and heartache later."

In North Dakota, providers at the state's lone abortion clinic applauded a state district court judge's decision Aug. 11 that said a law that took effect Aug. 1 does not mean doctors have to provide an ultrasound and let a woman listen to the fetal heartbeat at least 24 hours before providing an abortion. Instead, they must offer information about the existence of such services.

At least seven other states have laws covering fetal heartbeat monitoring before an abortion. An Oklahoma law (separate from the one ruled on by Robertson) mandates that women get information on how to access fetal heartbeat services.

In South Dakota, a federal judge is expected in coming months to issue summary judgment or proceed to trial in a battle over the state's 2005 "disclosure" law mandating that doctors tell women that abortion will sever their relationship with "a whole, separate, unique living human being" and increase their risk of suicide. Providers have had to comply with the law since July 2008, after the U.S. Court of Appeals for the 8th Circuit overturned a 2006 preliminary injunction from the federal district court.

A similar law took effect in North Dakota on Aug. 1.

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