Let’s stipulate the following case:
- A women seeks an abortion.
- There is a law in force which requires an ultrasound+24 hour waiting period for “informed consent”.
- The women does not need to see the ultrasound, but must endure it (and perhaps pay for it; the law does not provide funding).
- The women will not look at the results, even if she undergoes the ultrasound.
- The women’s pregnancy is early enough than a transvag ultrasound is required to comply with the law.
- In the absence of this law, the women would not request this ultrasound.
- In the absence of this law, a competent doctor acting according to best evidence and science based practice would not order the ultrasound in this case.
(WordPress is working overtime to piss me off, fwiw.)
2-3 are roughly the provisions of the VA law that rightly sparked so much furor.
2 entails that there is no legitimate state interest in play. This makes the scenario disanalogous to forensic treatment, executions, when competence is lowered, public health, etc. More to the point, let’s stipulate that there is no such interest in play in this case.
4 entails that there is no informing going on. I’d go further and say this sort of thing just cannot be part of a general informed consent procedure as we understand it. Even if it gives “more information”, even if it that information in that form would change some women’s minds, it’s just not remotely the kind of thing we consider necessary for informed consent. I’ve no interest in defending this proposition.
If the women is indifferent to the ultrasound requirement, then I think the moral tension is less sharp for some people, so we won’t consider that case. 7 rules out it being useful for that women’s care (which I’ll concede can happen in some cases, but that’s not a case of interest).
Question 1: Is there any prima facia problem with complying with the law and refusing to perform the abortion without performing the ultrasound?
I think so. There are lots of cases where abortion is, I believe, the right choice. Being not pregnant is a reasonable health state to desire in all sorts of circumstances and abortion is the way to achieve it when one is pregnant. The strong preponderance of medical and social evidence supports fairly extensive family planning.
There is no medical or informed consent reason for an transvag ultra in this case (4,6,7). So, the doctor is being required to perform an unnecessary procedure which is invasive and typically fairly distressing. Performing transvag ultras on a nonconsenting women would be rape. (Consider a case where a doctor lies to women and tells them that they are required, medically or legally, to undergo the ultrasound when they are not so required. It would be a battery, plain and simple.)
By 6, the women does not want the ultrasound. Let’s go further and suppose that she finds it distressing.
Even if we consider, contra 5, a case where an abdominal ultrasound would suffice for compliance, I think it would easily fall under battery. The touch does not have to be great.
Question 2: Has the women consented to the ultrasound if she consents (i.e., requests) the abortion?
I don’t think so. While “In some instances, consent to a particular treatment may also imply consent to all procedures necessary for achieving the agreed-upon end“, this procedure is not anything but legally necessary. The legal imposition is not connected with any legitimate state end nor is it there to achieve informed consent. So, the acquiescence to the ultrasound is, in this case, coerced. (Or, if she continues the pregnancy or delays the abortion etc. these are all things she would not have done, save for the law, thus are not freely chosen.)
Question 3: Is the doctor coercing the women?
Nope. The doctor would not order the unwanted procedure except for the law. The doctor is under threat of various sanctions if they fail to comply. The doctor is being compelled to perform the what-would-in-most-circumstances be a battery.
Question 4: Is the doctor required to perform abortions without complying with the ultrasound law?
Tricky. Consider a case where a person is condemned to undergo a medically non-indicated, “patient” refused amputation as part of a criminal punishment for a minor drug offense. It seems like doctors are obliged to refuse to do this. I’m sure the literature on the chemical castration of sex offenders is extensive, and it provides some relevant situations. Indeed, there’s a really nice discussion by Charles Foster, which covers a lot of what I’m after.
However, I don’t think the doctor is required to defy (even for suitably weakened notions of requirement). The Marcotte point is strong. Let me put it in two parts:
- A large group of women have a strong interest in being able to obtain legal abortions.
- Secretly defying the law has a substantial risk of detection and will shut down the doctor or clinic.
Absent a general movement to defy the law, the main result of resisting is to risk deprive a number of women access to legal abortion. Given that an abortion providing doctor generally has it as a project to provide such access, I don’t think they are required to defy.
Additionally, it is a shared coercion. The doctor is not, themselves, freely requiring this as a condition of treatment. They don’t have a duty toward the woman to break this law. (They do, of course, have normal duties to minimize the negative impact.) They patient requests of the doctor to perform the legal abortion, and, unfortunately, the law requires something odd, invasive, and nasty.
Question 5: Does this mean there’s no dilemma?
Nope. Foster puts it nicely:
There is enough in these…points for the doctor to be able to say intelligently: ‘My queasiness is analytically explicable’. And that might be a comfort.
This is all very well, but what should the doctor do? Doctors sometimes have a duty to overcome their queasiness and opt for the lesser of two evils.
I think outrage is more appropriate than queasiness. I made some analogies to Williams‘ execution dilemma: There’s definitely a clean hands problem here.
I think that the transvag is clearly much worse than the abdominal, because the transvag is very rape-like (at best), which heightens the tension.
I hope this explicates things sufficiently.