Improving the Ultrasound Requirement

Cuccinelli backed failed bill to ease ultrasound rule

RICHMOND — When a Senate panel on Monday killed a bill to soften the state’s controversial ultrasound-before-abortion law, the move disappointed someone besides the usual Democratic suspects: Attorney General Ken Cuccinelli II.

One of the state’s most outspoken abortion foes, Cuccinelli (R) had dispatched his top deputy last week to a Democratic state senator’s office to say that he supported the senator’s legislation to make the ultrasound mandated by last year’s law optional.

Cuccinelli’s office confirmed that the attorney general supports lifting the mandate and that West had offered to help make some language fixes to Northam’s legislation. It also said that it approached “two legislators” at Northam’s request, but they were not interested in amending the bill.

It's worth pointing out that Ken Cuccinelli was interested in amending Northam's bill, not passing it outright.

Cuccinelli raised constitutional questions about the ultrasound bill last year. But his nuanced stance drew little notice amid a battle so pitched that it attracted the attention of late-night shows and “Saturday Night Live.”

That Cuccinelli would want to soften the ultrasound law also surprised some antiabortion activists. “I would find it very disturbing,” said Don Blake, of the Virginia Christian Alliance. “It would be a big letdown to his base.”

But Cuccinelli, in fact, raised constitutional questions about the bill last year. “It was a mandate, and Ken Cuccinelli is very consistent in his view on the role of government,” said Chris LaCivita, Cuccinelli’s top political consultant. “He was opposed to the mandate last year and is opposed to it this year.”

“His personal position is that government should not and does not need to mandate an ultrasound, as experts have indicated that ultrasound imaging is already the practice before performing an abortion,” Cuccinelli spokesman Brian J. Gottstein said in a March 2012 e-mail to a Washington Post reporter. “But government can and should require that the doctor offer to share the image with the patient, so she has the information she needs to make a fully informed decision.”

There are two key points here: (1) ultrasound imaging is already used before the procedure, and (2) the mandate would be better applied to the abortionist than the woman or requiring a separate procedure.

As initially proposed, last year’s bill would have required women to undergo a vaginal ultrasound before an abortion, and for the technician to offer a view of the fetus to the woman. It was later amended to require women to undergo an abdominal ultrasound and be offered a view of that image. That change made the law less physically invasive but probably rendered the test useless, since the fetus is too small to be seen via an abdominal test in the early stages of pregnancy, when most abortions take place.

When the controversy flared up last year, this would have been a better way to improve the bill because (1) it would not have been creating a legally separate requirement from the procedure itself, and (2) it would have made the existing internal ultrasound accessible to the woman instead of requiring a less effective external ultrasound.