Doubling Down: Supreme Court refuses to hear Oklahoma’s anti-abortion arguments for transvaginal ultrasounds

Doonesbury 3-14

Part of Trudeau’s 2012 comic series on the transvaginal ultrasound legislation in Texas (but equally applicable in the context of this Oklahoma case) – Universal Uclick (c) 2012 G.B. Trudeau

For the second time in as many weeks, the US Supreme Court has rejected Oklahoma’s request that the court review an Oklahoma Supreme Court’s decision invalidating anti-abortion laws.

This time, the law in question required women to undergo a “narrated ultrasound” before being allowed to proceed with an abortion. The original law (the “Oklahoma Ultrasound Act”, or HB 2780) patronisingly determined that

“[i]n order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced… the physician [performing the abortion] shall

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable”

When read like this, it is clear that the experience intended by Oklahoma was to be a traumatic one; an experience aimed at manipulating or shaming a woman out of making decisions about her own health and body. From a statutory interpretation perspective, the first clause is particularly interesting – making a decision between a standard ultrasound or transvaginal ultrasound (an ultrasound on a stick inserted up the vaginal canal to the cervix) is based on clarity of viewing the embryo or fetus. There is no space in the Act’s provisions for a physician to take into account the necessity of the procedure, nor in deciding which ultrasound to go for, the wellbeing, comfort or desires of the woman (probably even less so if you take a purposive, rather than purely constructional interpretation approach). As transvaginal ultrasounds tend to provide higher quality resolutions in early stage pregnancies, the result is clear: you want an abortion in Oklahoma, you’ll have to have a physician stick an ultrasound up your vagina, while they narrate to you a story of the gestating embryo or fetus. Now, there’s nothing inherently wrong with transvaginal ultrasounds – they are an incredibly useful tool in women’s reproductive health, including in the abortion setting. However, having a law dictate that a woman must go through with what is an invasive procedure under the patronising guise of enabling them to make an “informed choice” is a completely different matter, and warrants fierce opposition. This is even more so given that abortion and reproductive health procedures are constitutionally protected rights.

In December 2012, the Oklahoma Supreme Court upheld a lower court’s ruling that this patronising law was invalid as it violated women’s constitutional rights. The Oklahoma Supreme Court ruling is delightfully short, stating simply that the law is “facially unconstitutional”. In particular, the Oklahoma Supreme Court upheld the lower court’s finding that the law was in violation of:

  • Article V-59 of the Oklahoma Constitution, which fundamentally is about upholding the Rule of Law. This Article prohibits a legislature from creating a “special law”; that is, a law just for one particular subset of the population. Oklahoma therefore exceeded the powers given to it by the Constitution by passing a law that targeted only female patients, doctors and sonographers where women were seeking an abortion, not all patients, all doctors, and all sonographers in any medical situation.
  • Article V-46, which in a similar vein, provides that the legislature may not create a special law that grants a right to take a civil action (ie take a matter to court) only to a particular class of people. In this case, this related to the rights of a woman’s family, doctors, and the Attorney-General to seek an injunction against abortion providers who violate the law, and to seek damages from an abortion provider knowingly or recklessly violating the requirement to conduct a narrated ultrasound.

So after being struck down as unconstitutional by the Oklahoma District Court, then the Oklahoma Supreme Court, Oklahoma sought to appeal these decision at the US Supreme Court. Tuesday’s denial however means that the last door has closed on this law. With two decisions in the last two weeks, Oklahoma women can breathe a sigh of relief that these laws, putting women’s physical and mental health at risk, have been relegated back to the dark ages from which they came.

Key Legal Docs

US Supreme Court ruling

Here’s a link to the US Supreme Court’s refusal to hear the case by elegantly listing simply the case name under “Certiorari Denied” at the bottom of page 1.

State Supreme Court ruling

Here’s a link to the short and sweet Oklahoma Supreme Court ruling (Nova Health Systems v Pruitt 2012 OK 103 (292 P.3d 29)).

State District Court ruling

Here’s a link to the original Oklahoma District Court ruling (Nova Health Systems et al v Pruitt et al Case No. CV-2010-533) granting the permanent injunction (this was tricky to find!).

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