Monday, June 01, 2009

LTG 05-27-09: Mr. Shuc/u?

From the Omaha CityWeekly, May 27-June 03, 2009.

It’s been said that a picture is worth a thousand words. In this case, it might be worth a thousand billable hours of legal work.

Last week, the Nebraska Legislature advanced to final reading a bill that would require doctors performing abortions to have an ultrasound image of the fetus available and easily viewable by the woman getting an abortion.

Supporters of the bill claim their intent is to ensure that a woman has as much information as possible before undergoing an abortion, to make sure she “thinks it through” before having the procedure. They have called it the Mother's Right to See Her Unborn Child/Ultrasound bill.

Doesn’t exactly roll of the tongue, does it? I tried the acronym to see if they were doing something clever, but the MRSHUC/U bill doesn’t work either, unless you know someone named Mr. Schuc/u.

In addition to being a mouthful, though, the bill’s name is disingenuous. Even without passage of the bill, there’s nothing preventing a mother from seeing an ultrasound image of her unborn child prior to an abortion. So if that “right” doesn’t need protection, then there must be another reason for dressing the bill up in the language of rights.

And, there is, of course. The intent of the bill is to make it harder for a woman to get an abortion. Pro-life proponents are hoping that a woman will see the image of the fetus and, as a result, decide against the abortion.

It should be noted that the bill is very clear that there is no requirement that the woman actually view the ultrasound image. However, the bill is also clear that if an ultrasound is performed and the woman has not yet seen the image, that the image must be available for her to view if she chooses to.

The legislature defeated an amendment which would grant an exception to the requirement for women who were getting abortions as a result of rape or incest. They get bonus points for philosophical consistency, but it definitely puts the bill on the edge of ultrasound requirement laws around the country. Whether that is the “strongest” edge or “most radical” edge depends on which side of the abortion debate you’re on.

If the bill passes – and it does seem very likely to pass and be signed into law – you can be sure it will be challenged in court. As those of you not from Jupiter are aware, the Supreme Court held in Roe v. Wade that a constitutional right to privacy included a right for a woman to have an abortion if she chose to. That right is not absolute, however, and the closer the fetus gets to viability the more the state has the authority to restrict abortions.

Under current law, as interpreted from Roe, before viability a state may only regulate the right to an abortion if it doesn’t place an “undue burden” on the mother’s right to choose abortion, meaning a regulation cannot place a “substantial obstacle” in the way of her choice. After viability, the state can go so far as to outlaw abortion, so long as the procedure is still available when a doctor feels it is necessary to protect the mother’s life or health.

Given that state of the law, any challenge to MRSHUC/U will depend on when the abortion is being performed. If the abortion is before the fetus is viable, then the law’s challengers will have to prove it places an “undue burden” on a woman’s right to have the abortion.

Any challenge of the law for an abortion performed after viability seems unlikely. And I suspect that even in a pre-viability case, it is unlikely that MRSHUC/U will be found to rise to the level of an undue burden.

So I think we’d better get used to the idea of MRSHUC/U becoming law in short order. And while I am torn both morally and legally on the larger question of abortion, I am very bothered by this bill. I understand the passion of abortion opponents, and their strategy of small steps to make abortions as difficult to get as possible.

But the fact of the matter is that abortion is legal. Pro-life senators can’t just come out and tell the truth about what they’re trying to do – place burdens on the ability of a woman to get an abortion – so they have to dress their “death by a thousand cuts” strategy up in disingenuous arguments like providing “greater informed consent” and “protecting the right to see an ultrasound.”

And that’s where the patronizing comes in. The decision about an abortion is an intensely difficult and intensely personal decision between a woman, her family, and her doctor. Any woman who may be affected by seeing the ultrasound image has already “thought it through” plenty without the Unicameral’s help. And any woman who might have gotten that far in the process without “thinking it through” isn’t likely to be swayed by an ultrasound image.

If abortion opponents want to work to outlaw abortion, they should do so. But to disingenuously pick at the edges of a constitutional right does very little except stoke the flames of the culture war – and keep lawyers on both sides fully employed.

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