Mandatory Ultrasounds and the Adoption Alternative

by Sherry F. Colb

In my Verdict column for this week -- Part 1 of a 2-part series -- I discuss the set of Texas amendments to the state's Woman's Right to Know Act, a group of amendments that I call "the Sonogram Law."  The Sonogram Law, passed approximately one year ago, requires abortion providers to give women an ultrasound at least 24 hours prior to her abortion (or 2 hours prior, if she certifies that she lives at least 100 miles from a provider) and display the ultrasound image for the woman, explaining in detail the contents of the image, playing any audible fetal heart sounds, and explaining those sounds to the woman as well.  A group of Texas providers challenged the constitutionality of the Sonogram law as it affects physicians, but my column focuses on the constitutionality of the law as it affects women seeking an abortion.  I examine how the Sonogram law resembles and differs from abortion regulations that the Supreme Court has considered in the past.

In this post, I want to take up the related question of what happens to women who decide to remain pregnant after seeing an ultrasound, not because they want a baby, but because they feel pressured by their "informed consent" session into taking their pregnancies to term.

In discussing the burden of an unwanted pregnancy, I have generally focused on the intrusion of such a pregnancy on a woman's bodily integrity.  To force her (or pressure her with targeted emotional appeals) to remain pregnant against her will is to support a monumental invasion of her body that burdens her organ systems, her health, and even her ability to sleep and to breathe comfortably.  Regardless of what one believes about the moral status of an embryo or fetus, the physical imposition of pregnancy provides a compelling argument for protecting a woman's access to abortion.  I have described this basis for an abortion right as "The Bodily Integrity Interest" (or "Bii") in a symposium piece about the rights and interests of future generations.

In thinking about the Texas ultrasound law, however, I have given some more thought to another argument for  protecting a woman's right to have an abortion, particularly in the early stages of an unwanted pregnancy:  the  interest in avoiding the emotional pain involved in giving up a child for adoption.

For someone who truly believes that a fertilized egg is a "child," I recognize that my argument here will not be persuasive.  Unlike the bodily integrity interest, the interest in avoiding an emotional bond that will subsequently be severed cannot justify killing someone (as opposed to terminating something that will later become someone).  On the other hand, to the extent that we have doubts about when exactly a zygote or developing group of cells becomes "someone" who can meaningfully be considered a "child," it becomes legitimate to consider the impact of unwanted bonding on someone who will not be able to keep her baby once he or she is actually born.

In a book entitled The Girls Who Went Away, author Ann Fessler relates the stories of women (whom she interviewed) who gave birth in the decades before the Supreme Court decided Roe v. Wade, a period during which many single young women were treated as presumptively unfit parents who should be forced or pressured to surrender their babies for adoption by more suitable families (i.e., married couples).  With no legal abortion option, the women whose stories fill the book gave birth and then promptly lost their children.  Their tremendous suffering, grief, and disorientation comes through very clearly and poignantly in the book, and many of them never recover from the loss.  If a woman is not going to be able to keep her baby, it is a special sort of cruelty to force or strongly pressure her nonetheless to gestate and give birth to that baby, only to have to say goodbye.

I cannot avoid observing here that a grotesque version of what confronts women in these circumstances confronts every dairy cow within the industry, including on allegedly "humane" farms.  Like humans, other mammals form extremely strong emotional bonds to the babies to whom they give birth.  In dairying, we forcibly impregnate dairy cows on a "rape rack" and then, after they give birth and express no greater yearning than to nurse and to be near their new babies, we take away their babies, one after another, so that we can consume the mother cows' breast milk.  In thinking about the reproductive abuses that women unjustly confront, in Texas and elsewhere, it is worthwhile to think too about our nonhuman counterparts whom we daily condemn to similar reproductive anguish with our consumption choices.