On Wednesday, Virginia’s legislature and governor unexpectedly withdrew support for a bill that would have required women to have a transvaginal ultrasound prior to an abortion. Governor McDonnell had promised to sign the bill if it came to his desk and it was on the fast track to making it there. Last minute protests on the capitol grounds and objections from moderate republicans changed the governor’s position. In an official press release, the McDonnell stated, “No person should be directed to undergo an invasive procedure by the state, without their consent, as a precondition.” A new bill making its way through the legislature would only require an external ultrasound. Several other states have introduced or passed similar legislation over the past year (e.g., Texas, Ohio, South Dakota, Oklahoma).
The constitutionality of the more aggressive of these bills doesn’t interest me much. I think the answers are straightforward for these bills. For me, the more interesting question is to assess the point at which state action to prevent birth is too intrusive. As a colleague asked me: would it be constitutional for the state to pay women on welfare to not have babies or to undergo sterilization?
The question was real. When norplant became available in the US in the early 1990s, a few state legislatures considered whether they could mandate or encourage it for welfare recipients. They erred on the side of caution and just made norplant available through Medicaid. From time to time, random legislators still raise the idea of financially incentivizing birth control for poor women as a long-term strategy for conserving state resources.
This issue focuses less on the morality of individuals' reproductive decisions and more on the appropriateness of the state’s involvement in those decisions, which should lead to a more reliable answer. Under current precedent, the general answer is that the government would be free to financially encourage women to have fewer children, but it cannot involuntarily sterilize women. Where is the line between the two? Money, at some point, surely becomes compulsion for poor women. And regardless of whether the constitutional currently prohibits it, there should be a limit to the seriousness of the consequences the government can attach to a woman’s or family’s decision to give birth. Would it be okay for the government to move me into a much higher tax bracket should I decide to have a second child? While the facts are clearly different, McDonnell’s explanation for withdrawing support for Virginia’s abortion bill is consistent with the notion that the government, regardless of its opinion, should refrain from becoming overly involved in the decision (i.e. the government is coming between the doctor and patient when it mandates this particular procedure).
The detached perspective on this question is simply that the government is only contracting for a desired end, which is not itself unconstitutional. Wait. Isn’t that the simplified argument progressives make for why the federal health care bill is constitutional and the very premise that conservative reject?