"Inherently Truthful and Non-Misleading": Ultrasound Images Before An Abortion

by Sherry F. Colb

In my Verdict column for this week, part 2 of a two-part series, I continue an analysis that I began last week of amendments to the Texas law that require abortion providers to perform an ultrasound on their patients twenty-four hours prior to an abortion, during which the provider must show the patient the embryo or fetus, play any fetal heart sounds audibly, and give a description to the patient of what is on the screen and what she is hearing.  In my column, I consider the burden of such "informed consent" procedures on a woman who will undergo an abortion.  In my blog post last week on the subject, I examine the potentially devastating impact of the procedure on the woman who decides against an abortion because of what she has seen and/or heard.

In this post, I want to consider a statement in the opinion for the U.S. Court of Appeals for the Fifth Circuit, in which it describes the process of showing a pregnant woman an ultrasound and giving her a detailed description of the image on the screen:  "these medically accurate depictions are inherently truthful and non-misleading."  This statement brings to my mind an argument that children characteristically have with each other when they are too young to be mindful of their own feelings and motivations and therefore, correspondingly unable to exercise much judgment in deciding what they will and will not say.

In the argument , one of the children feels anger or frustration triggered by something that the other child has done.  As a result of her feelings, the angry or frustrated child makes a negative observation about the other child, such as "you sweat more than anyone I know," "your arms, legs, and belly are fatter than other children's," "you have small eyes," "you're much shorter than other children your age," or "your drawings don't look anything like what you say you're drawing."  In response to such an observation, the second child might either begin to cry, insist that the first child "take it back," make some equally insensitive negative observation about the other child (such as "well you smell like garbage" or "your hair is so thin that you have a sunburn on your scalp"), or all of the above.

When an adult appears on the scene to intervene, the child (or both children) hurling insulting observations might shrug and say "Well, it's true.  I was just telling the truth.  Is there something wrong with that?"  In the words of Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, each child is simply making accurate, non-misleading observations about the other child.  The implicit underlying rhetorical question is this:  Do the adults in our lives demand that we be dishonest?  Have they not consistently instructed us to tell the truth?

It is not only children who make such arguments, of course.  Adults who "don't pull any punches" typically regard themselves as having the virtue of "honesty" when they casually level devastating and obnoxious remarks at other people.  Such "honest" individuals are the main characters in a book by Robert I. Sutton, The No A**hole Rule, a book that articulates a strong case for choosing not to hire  such people at your workplace, regardless of how individually productive or brilliant they might be, because of the deleterious impact they appear to have on group morale and productivity.  They do not, in crass terms, "pay their own way," despite their individual talent.

Does this mean that being considerate and respectful of others requires dishonesty?  I do not think so.  One need not be dishonest to refrain from making scathing comments to people whose suffering is precisely the purpose behind the "just being honest" commentary.  One can simply choose, as all of us regularly choose, how much of what is true to say and how much of what is true to leave unsaid (or to say at a later, more appropriate time).

If you and another person are very close friends, you might observe that the other person has seemingly put on a lot of weight lately and gently suggest that you are concerned about his health.  You would do this quietly, however, and in a manner that exposes your motivation as care rather than the desire to shame or humiliate the other person.  And you certainly would not approach strangers at a county fair and offer gratuitous observations about how they might want to skip the "fried dough" stand.  No one will interpret your silence in such a context as an assertion that the people around you are at a healthy weight.  Only characters like Larry David in Curb Your Enthusiasm feel compelled to make unpleasant but accurate observations to friends,  family, and strangers on a regular basis.

Why do "informed consent" ultrasounds in Texas remind me of such thoughtless and aggressive behavior among children and some adults?  Because the Texas sonogram requirements are intended to induce feelings of shame and discomfort in the pregnant woman planning to terminate her pregnancy.  In other words, like the "observations" about another child's height or weight in the context of a fight, the ultrasound picture is used as an emotional weapon rather than out of a desire to truly inform a patient about the course of conduct she has selected.  Unlike desired feedback, moreover, the listener is not first asked whether she is interested in hearing what the speaker has to say -- the speaker instead subjects her to what she may mistakenly believe is a necessary medical procedure (an ultrasound) and then she is shown and told things that she almost certainly would prefer not to hear.

There is another respect in which the Texas "informed consent" session resembles the fights of young children and poorly socialized adults.  In providing allegedly "accurate and non-misleading" information, the speaker does not actually tell the whole truth.  The speaker leaves out, for example, a statement of his own motivation.  For a child, such a statement might look like this:  "I am feeling frustrated and upset because I want to play with the playmobile set, and you are still playing with it, so I am going to say something nasty to you so that you will no longer be smiling and will also feel upset like I do."

If the ultrasound carried a corresponding introduction, it might be this:  "The State of Texas wants to prohibit you from having an abortion, but federal constitutional law prevents it from doing so.  Therefore, it instead aims to make you feel as uncomfortable as possible about having an abortion in the hopes that you will either (1) feel pressured into taking your pregnancy to term, or (2) have the abortion but feel haunted by the image of your unborn child.  In the interests of promoting this objective, the State requires me [the abortion provider] to insert a sonogram wand into your vagina and then show you the resulting image of the embryo or fetus in your body, while I also describe the image to you."

Though such an introduction as to motive would help reduce the misleading quality of an unadorned ultrasound, it would still be incomplete, in the way that the "I want you to be upset" introduction would be incomplete for the feuding children.  The child deliberately omits the other child's positive qualities and focuses exclusively on traits that cause his playmate shame or embarrassment.  To add completeness, the doctor might be required to outline for the pregnant woman the many things that can go wrong in a pregnancy and result in pain, distress or even tragedy.  The doctor might include, for example, photographs of babies suffering from various anomalies or abnormalities incapable of early diagnosis.  He might also include a description of the various physical ailments that commonly accompany pregnancy and the potentially life-threatening conditions which become a greater risk in the presence of an extant pregnancy (such as diabetes and hypertension).  He might also describe the pain of childbirth, the risk of post-partum depression, some of the misery that accompanies giving birth to a child that one will not keep, and the fact that along indices of happiness and satisfaction, most married couples with children appear to score lower than their childless counterparts.  He might, finally, tell the woman that the embryo or fetus that she sees on the ultrasound screen is not yet sentient and therefore cannot feel anything or experience the world in any way.

Finally, of course, the ultrasound image of the developing embryo or fetus is not really "accurate information."  It is a two-dimensional image that looks quite different from a real embryo or fetus.  This is why, for example, predictions of fetal weight (and fetal age) from ultrasounds are notoriously inaccurate.  To the extent that a patient looking at an ultrasound image believes she is seeing what is truly there, she is in fact mistaken.

Am I proposing that a doctor be compelled to go into great detail about all of the terrible things that can happen to a woman who remains pregnant?  No.  Such a disquisition might be almost as unwelcome   and oppressive as what Texas law already requires.  It is nonetheless useful to consider what it would truly look like to give a patient accurate and non-misleading information about her embryo or fetus or about abortion and pregnancy.  Offering one-sided information that she does not want in a context in which she is quite vulnerable and might incorrectly understand what is motivating the disclosures she is hearing, falls far short of the truth, as understood by anyone other than the immature child hurling insults at his playmate.  It is not the "whole truth" and therefore fails to earn the description of "inherently truthful and non-misleading" information.