Academics Break Ranks

Two law school professors recently broke with prevailing academic orthodoxies to declare that states requiring doctor’s to share information from ultrasounds with patients contemplating abortions were acting legally. “To the extent those critical of these policy choices seek a constitutional prohibition on mandatory ultrasounds, they actually are advocating a return to the standard set forth in Roe v. Wade, under which virtually all abortion regulations were struck down,” Scott W. Gaylord and Thomas J. Molony wrote on Philly.com. “But Roe is not the law.”

“Casey is.” Gaylord and Molony are both professors at the Elon University School of Law in Greensboro, N.C.

“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 explain.  “As the Fifth Circuit noted in upholding the Texas speech-and-display statute this year, ultrasound images and descriptions of those images ‘are the epitome of truthful, nonmisleading information.’”

So far so good, perhaps, but they go on to conflate the landmark Supreme Court decision with the Constitution. “Those criticizing the growing number of ultrasound laws frequently ignore the fact that the Constitution permits states to try to dissuade women from having an abortion,” they claim.  “In Casey, the Supreme Court expressly acknowledged that a state may ‘further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the state expresses a preference for childbirth over abortion.’”

Malcolm A. Kline is the Executive Director of Accuracy in Academia.

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