E-Net News

Elon Law scholars engage national debate on ultrasound laws

Professors Scott Gaylord and Tom Molony recently published articles in the Philadelphia Inquirer and Birmingham News examining the constitutionality of proposed and existing state laws regulating - and in some cases requiring - the use of ultrasounds in connection with abortion procedures.

Elon Law Professors Scott Gaylord, left, and Tom Molony

Several states, including Alabama and Pennsylvania, have either enacted or are considering laws in this area.

In both of their articles, Gaylord and Molony write that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey details current law about the authority of states to pass abortion regulations.

“Under the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, states have a right ‘to ensure that a woman apprehend the full consequences of her decision’ and can require physicians to provide ‘truthful and not misleading’ information about the abortion procedure and the development of the fetus,” they write. “As the 5th Circuit noted in upholding the Texas speech-and-display statute, ultrasound images and descriptions of those images ‘are the epitome of truthful, non-misleading information.’”

Gaylord and Molony also respond to concerns expressed by some physicians that requiring them to display and describe ultrasound images violates their right to be free from compelled speech.

“The Supreme Court already has considered -- and rejected -- this argument,” they write. “In Casey, providers of abortion services claimed that physicians had a First Amendment right ‘not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State.’ While acknowledging that mandatory disclosures ‘implicate’ physicians' First Amendment rights, the court held that, in the context of ‘the practice of medicine,’ physicians were ‘subject to reasonable licensing and regulation by the State’ and consequently could be compelled to provide disclosures about childbirth and abortion.”

Click here to read the Sunday, April 1, 2012 article by Professors Gaylord and Molony in the Birmingham News.

Click here for their article in the Sunday, March 25, 2012 edition of the Philadelphia Inquirer.

Click here for more information about Scott Gaylord.

Click here for more information about Tom Molony.

Philip Craft,
2/8/2013 8:20 AM