Recently in Texas[1], the Texas House of Representatives passed a bill that requires women to undergo a sonogram prior to an abortion. This procedure must occur 1-3 days before the abortion. After viewing the image and hearing an explanation of it, she then could have her procedure after waiting at least 24 hours.
At first blush, this bill seems like a fairly innocuous invasion of privacy rights similar to many of the regulations found constitutional in the Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) case, although it is doubtful these same regulations would have passed muster under the trimester framework. Consideration of this bill reveals that while the majority did not overturn Roe v. Wade, 410 U.S. 113 (1973) in Casey, the newer precedent provides a great deal more leeway to the states to require various types of regulations including more stringent types of informed consent i.e. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, (1976). (Recall, this case upheld the “core” of Roe and adopted O’Connor’s undue burden test in lieu of Blackmun’s trimester framework.) After all, a sonogram provides a clinician with concrete information about the current level of embryonic growth. There is no guesswork required, so this procedure avoids the problem of speculation noted by Powell in Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416. Again, prima facie, this requirement seems to place no undue burden on the woman, as an early sonogram can be performed in a doctor’s office or a clinic.
However, early sonograms are not the typical sonogram as noted by Representative Carol Alvarado during floor debate on the bill.[2] An early ultrasound requires vaginal insertion of a medical probe. The procedure is more invasive and uncomfortable, although not medically risky. The larger question is whether this procedure would be an undue burden. Since the undue burden test as written is vague, and the Court has rarely utilized the new standard, how do the lower courts apply it to this situation? The context of this developing situation shows the wisdom of Scalia’s critique of the new standard, “I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Or if this bill passes, will it be challenged under a different variant of the right to privacy? Is the state requiring a woman to undergo a medical procedure? Does this violate the ancient right to refuse medical treatment?
Additionally, there is an issue of cost. Who will foot the bill for the procedure? If it is the woman or her insurance company, does this financial burden create an undue burden? This question can easily seep into issues of federalism regarding the ACA and the role of Texas requiring a test that will affect a federal program.[3]
[1] Reported by Reuters on 3/4/11. http://www.reuters.com/article/2011/03/04/us-texas-abortion-idUSTRE7230VK20110304 accessed on 3/17/11.
[2] Her exact words were this is not your typical “jelly on the belly”.
[3] In July of 2011, the law was challenged by the Center for Reproductive Rights. The CRR takes a different tack here and challenges based upon First Amendment rights of speech between a doctor and a patient. http://www.ama-assn.org/amednews/2011/07/18/gvsc0718.htm accessed on August 5, 2011.
Without Prejudice 
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