The Slate piece that prompted this controversy is a few days old, but the conservative backlash to it is just picking up steam. Thursday, Supreme Court reporter Dahlia Lithwick (whose name I’ve always envied!) penned a preposterous attack on a proposed law in Virginia that would require women to have an ultrasound before they would be allowed to have an abortion. Ms. Lithwick is convinced — convinced — that an ultrasound amounts to rape. She writes:
Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced. Since a proposed amendment to the bill—a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound—failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under state law.
Let’s suppose for a second that a transvaginal ultrasound to which women have not consented is rape. Unfortunately for Ms. Lithwick, she’s still flat-out wrong about the law. Why? She vastly overstates the probability that “most women will be forced to have a transvaginal procedure.” Dana Loesch links to a piece at Red State that sets the record straight:
So does Virginia’s law require some foreign object to be “inserted into the vagina, and then moved around”? The answer is obviously no. The law doesn’t specify what kind of ultrasound must be used, rather it clearly states that the sonogram “shall be made pursuant to standard medical practice in the community.” This, obviously, is going to be a function of whatever device Dr. Mengele has at his disposal in the abortion facility.
Abdominal and transvaginal ultrasounds are both effective at early stages of pregnancy. This fact is acknowledged in this “continuing medical education” module produced by the National Abortion Foundation (tag line: “A Provider’s Guide to Medical Abortion”):
“Transabdominal ultrasound cannot reliably diagnose pregnancies that are < 6 weeks’ gestation. Transvaginal ultrasound, by contrast, can detect pregnancies earlier, at approximately 4 ½ to 5 weeks’ gestation. Prompt diagnosis made possible by TVU can, therefore, result in earlier treatment.”
So, yes, transvaginal is more reliable for detecting pregnancies for a period of about seven days. Please note the Orwellian use of the word “treatment” for “killing of the baby.” How does this require a woman to have a transvaginal ultrasound? Short answer: it doesn’t.
OK, so Lithwick’s wrong about the law. Is she right about what constitutes rape? Would we say that when a women consents to it, an ultrasound is in any way sexual? I’m inclined to agree with Commentary’s Alana Goodman:
Comparing the ultrasound proposal to forcible rape is – to be kind – totally absurd. But [Slate’s] not the only outlet engaging in this. Feministe is calling it the “Virginia Rape Law,” and Washington Monthly described it as the “Ritual Humiliation Bill.”
Then there’s Joy Behar, who likened it to Taliban law on “The View”: “It’s like, what are we? What is this, the Taliban now? What are we, in Afghanistan? Where are we exactly in this country?”
The comparisons aren’t just needlessly inflammatory, they also dilute the seriousness of rape.
That last sentence is the linchpin: To equate a medical procedure that carries no real risk of negative consequences — like emotional trauma or STDs — with rape, which does carry such consequences, does an enormous injustice to true rape victims. Incidentally, the Virginia law aims to ensure women have as much information as possible before they decide to undergo another medical procedure that does carry an enormous risk of negative consequences — including emotional trauma.
As Goodman writes, sound reasons to oppose the Virginia law — or, at least, to think seriously about it — certainly exist, but the argument that an ultrasound is somehow rape is just not one of them.