Skip to main content

On The Front Lines

Rutherford Institute Denounces Va. Legislation Requiring Invasive Transvaginal Ultrasound Prior to Abortion as Unconstitutional

RICHMOND, Va. —John W. Whitehead, president of The Rutherford Institute, is calling on Virginia Governor Bob McDonnell to either amend or veto legislation which requires that doctors act as agents of the state and subject women seeking abortions to ultrasound procedures, which in many cases would mean an invasive transvaginal probe, without their consent. Noting that while this legislation may be a well-meaning attempt to ensure that women seeking abortions are fully cognizant of the ramifications of their life-changing decisions, Whitehead points out in a letter to McDonnell that it is a misguided attempt at bringing about a change of heart in these women in violation of the Fourth Amendment. Moreover, warns Whitehead, the ramifications of enacting such legislation will be far-reaching, opening the door to the government’s ability to mandate further invasions of the body, both male and female, for a variety of purportedly well-intentioned purposes.

The Rutherford Institute’s letter to Governor McDonnell is available here.

“Rapid advances in science and technology without corresponding constitutional limits on the government’s use of these emerging technologies have already resulted in a steady erosion of Americans’ Fourth Amendment rights. We have seen this on almost every front, from the use of whole-body scanners in airports and mobile body scanners on police cars to facial-recognition software on law enforcement smart phones and surveillance drones flying over American cities,” said Whitehead. “In order to preserve bodily integrity, we must draw the line somewhere, and that line is the U.S. Constitution.”

HB 462 and its companion in the Virginia Senate, SB 484, require that “as a component of informed consent to an abortion, to determine gestation age, every pregnant female shall undergo ultrasound imaging and be given an opportunity to view the ultrasound image of her fetus prior to the abortion.” Despite the fact that the legislation does not specify what kind of ultrasound procedure should be used, transvaginal ultrasounds are often the primary means of detecting gestational age in the early stages of pregnancy. However, whether or not a transvaginal ultrasound is widely used or is medically necessary in order for a doctor to carry out an early-stage abortion, Whitehead insists that it is completely inappropriate for the state to require that doctors carry out such invasive procedures on a woman. In doing so, physicians are reduced to no more than agents of the state and, as a result, this procedure constitutes a state-mandated violation of a woman’s body. Yet, as Whitehead makes clear, in order to violate an individual’s right to bodily integrity, the state has to show probable cause—that is, the state must have some evidence that the person who is subject to government scrutiny is engaged in criminal activity.

If enacted, SB 484 and HB 462 would ensure that women seeking to exercise their court-sanctioned right to an abortion would be treated as if they were suspects and forcefully subjected to an invasive technique in violation of the Fourth Amendment. “No medical actor, doctor or otherwise, should be coerced by the state into probing a woman’s body, especially not without informed consent,” said Whitehead. “While all of us who value the sanctity of life hope to see the day when life at all stages is protected, this is not the solution. Compelling women to undergo invasive and unconstitutional ultrasounds in order to have an abortion will only further politicize and polarize an issue that has little to do with politics and everything to do with human rights.”