Humiliation, degradation, penetration: what legislatively required pre-abortion transvaginal ultrasounds and rape have in common.

• Author: Green, Kelsey Anne

TABLE OF CONTENTS I. INTRODUCTION II. MANDATORY ULTRASOUND LEGISLATION A. What is a Transvaginal Ultrasound? B. Types of Mandatory Ultrasound Legislation C. Why This Legislation Exists (According to Supporters) D. A Final Clarification & Summary of Mandatory Ultrasound Legislation III. RAPE LAW A. Types of Rape Statutes 1. Combined Legal Structures 2. All-Encompassing Sexual Assault Statute 3. Broad Rape Statute IV. RAPE THEORY A. Historic Purposes and Understandings of Rape Law B. Modern Rape Theory Applied to Mandatory Transvaginal Ultrasounds 1. Person-to-Person Power Exertion 2. Violence 3. Oppression of Women 4. Individual Psychological Attack 5. Denial of Autonomy V. PRACTICALITIES OF A "RAPE" DESIGNATION A. The Consent Question 1. Consent Theory 2. Consent in Rape Law B. The Actor Question C. Implications of Including Required Transvaginal Ultrasound Legislation in the "Rape" Umbrella 1. Negative and Positive Impacts of "Rape" Designation VI. CONCLUSION I. INTRODUCTION

In recent years, legislation has been proposed and enacted to require a woman seeking an abortion to submit to an ultrasound. While performing an ultrasound before an abortion is not an uncommon medical practice, it is also not medically necessary in every circumstance. However, these laws leave no room for medical opinion. Most require an ultrasound in every situation, including cases where the woman was a victim of rape or incest, as well as those cases where abortion is recommended due to fetal abnormalities or a risk to the woman's health and the woman already submitted to at least one prior ultrasound. Some of this legislation has gone a step further, including standards of imaging that require transvaginal ultrasounds in early pregnancies (which account for more than half of the abortions in the United States). It has been suggested that requiring this medical procedure amounts to rape. This Comment seeks to investigate whether legal and theoretical bases exist for this argument.

Reactions to mandatory ultrasound legislation requiring transvaginal ultrasounds have been strong. A doctor reacted to this kind of legislation by saying, "I do not feel that it is reactionary or even inaccurate to describe an unwanted, non-indicated transvaginal ultrasound as 'rape.' If I insert ANY object into ANY orifice without informed consent, it is rape. And coercion of any kind negates consent, informed or otherwise." (1) A Virginia state legislator considering such a bill said, "What's before us is akin to rape." (2) A rape victim expressed her thoughts in a recent blog post, The State of Virginia About to Rape Women, Legally: "I have been a victim of rape, so I don't use the word lightly, but there's no other way to put it." (3) Political commentator Rachel Maddow characterized the 2012 Virginia law as "a physical penetration of the body ... by state order, without your consent. That would be forced on you as a condition of your being allowed to have an abortion.... " (4) An Alabama state senator said: "If you look up the term rape, that's what it is: the penetration of the vagina without the woman's consent." (5)

In order to answer this question, Part II of this Comment discusses the practicalities of a transvaginal ultrasound and analyzes the mandatory ultrasound laws that call for them. It further explores the motivation behind these laws from the perspective of both its proponents and its critics to better understand the expected role of the ultrasound in the abortion procedure. Parts III and IV study a variety of rape and sexual assault statutes as well as theories on the harms of rape that have informed rape statutes in America. This leads to a study of how those theories interact with the state-mandated transvaginal ultrasound, as well as the arguments for and against designating these ultrasounds as rape. Finally, Part V seeks to address the practical roadblocks to the doctrinal issues involved in designating these ultrasounds as rape, such as consent, prosecution, and the effects on victims of violent rape when it is used in that context.

2. MANDATORY ULTRASOUND LEGISLATION

   At least fifteen states have proposed mandatory pre-abortion ultrasound legislation in recent years, and eight of them enacted the laws. (6) This Comment studies the legislation (both enacted and merely proposed) that requires women seeking abortions to submit to transvaginal ultrasounds before the abortions can be performed. (7) This Part will first explain the procedure involved in a transvaginal ultrasound and its medical uses to clarify the personal impacts of these laws. It then analyzes the legislation that would require a transvaginal ultrasound, splitting legislation into three categories to demonstrate the different ways the requirement is written: (1) those specifically referring to transvaginal ultrasounds; (2) those acknowledging multiple ultrasound techniques; and (3) those simply referring to ultrasounds while including requirements that would, in many cases, necessitate a transvaginal ultrasound. Finally, this Part examines the motivations behind these mandatory ultrasound requirements according to both supporters and opponents.

   1. WHAT IS A TRANSVAGINAL ULTRASOUND?

      Before beginning the discussion of mandatory ultrasound legislation, it is necessary to develop a general understanding of the purposes, procedures, and practicalities of fetal ultrasounds.

      "A fetal ultrasound, or sonogram, is an imaging technique that uses high-frequency sound waves to produce images of a baby in the uterus." (8) An ultrasound is used in obstetrics to: determine gestational age; view fetal organs, tissues, and impairments; and, recently, promote prequickening, or early pregnancy, bonding. (9) There are two types of obstetric ultrasounds in common medical practice today: transabdominal ("jelly on the belly") and transvaginal. The transabdominal ultrasound is more familiar to most Americans, (10) but the subject of this Comment is the less familiar transvaginal ultrasound. This procedure uses a transducer wand that is five to ten inches long. The wand is inserted into the vagina to create sonar images of the cervix, ovary, and uterus. (11) The exam usually takes fifteen to twenty minutes. (12) A patient without health insurance or with insurance that does not cover fetal ultrasounds will pay between $300 and $1,000 for each transvaginal ultrasound, which can be more expensive than the transabdominal ultrasound, depending on the state and the type of machine used. (13)

      According to the National Abortion Federation, "The use of ultrasound is not a requirement for the provision of first trimester abortion care. However, over the years, especially in higher resource settings, it has become widely used." (14) Dr. Cassing Hammond, an associate professor of obstetrics and gynecology at Northwestern University's Feinberg School of Medicine, indicated that the medical purpose for performing a pre-abortion ultrasound is to determine whether the embryo is in the uterus (as opposed to being implanted in the fallopian tubes, which would require different procedures) and how large the embryo is (again, because the size of the fetus will impact the type of procedure and the amount of anesthesia the doctor will use). (15) Transvaginal ultrasounds definitely have a medically indicated and defined role in pre-abortion care, and a large number of patients do need the procedure, particularly if their pregnancies are in the early stages or the patients are obese. (16) According to Dr. Hammond, a transvaginal ultrasound is the most preferable option for a woman in the first trimester because it is much more accurate than an abdominal ultrasound at that point. (17) Dr. Hammond also pointed out that a transvaginal ultrasound would almost always be necessary to satisfy the requirements detailed in the mandatory ultrasound laws. (18) In an abortion setting, a transvaginal ultrasound will almost always display the fetus more clearly than would an abdominal ultrasound. (19) However, Dr. Hammond, who is familiar with abortion law policy generally and this kind of legislation in particular, indicated that "none of the regulations are written to make abortion more safe." (20)

   2. TYPES OF MANDATORY ULTRASOUND LEGISLATION

      Among the many mandatory ultrasound bills and laws that require a transvaginal ultrasound, there are four apparent degrees of specificity in the language used. First, and most explicit, a bill in Alabama specifically mentions transvaginal ultrasounds. Second, a 2013 bill in Indiana refers exclusively to medical abortions, like those performed through oral administration of termination medications such as RU-486. This bill would require both a pre-abortion ultrasound and a post-abortion ultrasound. (21) Third, Idaho's bill does not use the words "vagina," "vaginal," or "transvaginal," but does acknowledge that multiple ultrasound techniques exist. (22) And finally, the legislation from Pennsylvania, (23) Texas, (24) Kentucky, (25) Virginia, (26) and North Carolina (27) all refer generally to an ultrasound requirement and would, in practice, often require a transvaginal ultrasound in order to comply with the legislation, because according to the Guttmacher Institute, 88% of abortions occur in the first twelve weeks of pregnancy (the first trimester), and almost 62% occur in the first nine weeks. (28) During these weeks of a pregnancy, an abdominal ultrasound would likely be ineffective due to the position and small size of the embryo. Thus, this legislation essentially would require the majority of, if not all, women seeking abortions to submit to transvaginal ultrasounds. (29) As a result, legislation indicating that whichever type of ultrasound "would display the embryo or fetus more clearly" should be used translates into mandatory transvaginal ultrasounds for almost all patients. The different types of legislation are detailed below; while the language and construction varies...