Feminist Philosophers

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On requiring unnecessary, invasive exams January 31, 2012

Filed under: politics,reproductive rights — jennysaul @ 5:37 pm

I think I have a new hero.

To protest a bill that would require women to undergo an ultrasound before having an abortion, Virginia State Sen. Janet Howell (D-Fairfax) on Monday attached an amendment that would require men to have a rectal exam and a cardiac stress test before obtaining a prescription for erectile dysfunction medication.

“We need some gender equity here,” she told HuffPost. “The Virginia senate is about to pass a bill that will require a woman to have totally unnecessary medical procedure at their cost and inconvenience. If we’re going to do that to women, why not do that to men?”

 

17 Responses to “On requiring unnecessary, invasive exams”

  1. Rebecca Kukla Says:

    This is totally awesome.

  2. j Says:

    Yes indeed!!!

  3. Matt Says:

    The funny thing is that the heart part, while probably (almost certainly?) over-kill, is at least not completely unrelated to an actual medical concern, and so this is actually _more_ plausible as a “required” exam.

  4. Michel X. Says:

    Epic win.

  5. Nemo Says:

    Granted that the basis of laws like Virginia’s ultrasound bill (or Texas’ ultrasound law, which was just upheld as constitutional by the Fifth Circuit Court of Appeals) is not that the ultrasounds are medically necessary, at least not in any strict sense. On the other hand, something that is strictly medically unnecessary could be necessary or at least desirable from another policy perspective. (For example, informed consent requirements are not based on medical necessity.) So I’m not sure it makes sense to focus arguments against the bill on medical non-necessity. The gender inequity argument also seems problematic to me.

    At any rate, once the initial ha-ha moment wore off, Sen. Howell’s approach to the issue doesn’t strike me as particularly coherent.

  6. Alan Says:

    About time for male comeuppance!

    And seriously, since the commercials always talk about making sure that one’s heart is up to what one’s other organ’s may be up to, the medical assurances needed here surely are as serious as the moral ones “needed” in women’s cases.

    The Senator not only has the floor–she owns it.

  7. Bijan Parsia Says:

    Hi Nemo,

    Of course, the actual intent of the ultrasound is to harass women seeking abortions and make them less likely or able to undergo the procedure. The proposed regulations seem well within that spirit.

    Look at the key bit of the law:

    Requires that, as a component of informed consent to an abortion, to determine gestation age, every pregnant female shall undergo ultrasound imaging and be given an opportunity to view the ultrasound image of her fetus prior to the abortion.

    Informing generally isn’t a medical procedure and, in itself, generally doesn’t require any (placebo’s might be an interesting case, though my impression is that they’ve become less so). What possible reasonable rationale could there be that informed consent to an abortion requires seeing an ultrasound of one’s own fetus? What possibly justifies the expense and hassle and, well, physical assault. (The law imposes a non-voluntary elective procedure on women as a precondition of receiving care. This may, perhaps, be weakly justifiable if the care is purely elective, but it’s hard to argue that abortions are purely elective in the sense that, say, a botox injection would be.)

    I should think that the standard should be quite high for imposing a procedure of any kind. I think the big “scary lecture with photos” crap is also bunk, but that is at least cheap and non-invasive. So, what’s the magical difference in level of informativeness of seeing an ultrasound and seeing your ultrasound? Sexist reason: Ooo, it’s YOUR BABY so magic bonding moment!! Sexister reason: Jack up the price and go through Yet Another Procedure.

    I don’t see why either rationale is incoherent, or at least any more incoherent than the rationale (and requirement) that the amendment is critiquing. She’s not proposing it as good policy, but as as reductio.

  8. philfemgal Says:

    When are they going to start requiring happy intentionally pregnant women looking for prenatal care to be listen to a lecture about how dangerous pregnancy and childbirth is compared to early abortion at their first OB appointment?

    Or what about those seeking fertility treatment–shouldn’t they be vividly informed of what they are getting into with videos of births that lead to 4th degree vaginal tearing required before any medical professional will help them conceive.

    Ya know, informed consent and all.

  9. Nemo Says:

    Hello Bijan,

    –“Of course, the actual intent of the ultrasound is to harass women seeking abortions and make them less likely or able to undergo the procedure.”

    I agree that there’s a background expectation that, of the pregnant mothers who avail themselves of the opportunity to view the ultrasound (which is not required), some number of them (probably especially later on, e.g. second trimester) will subsequently opt not to have an abortion who *would* otherwise done so. I see nothing that indicates an intent to harass (in the sense in which I understand “harass”), but perhaps the legislators are inwardly harboring such an intent.

    –“What possible reasonable rationale could there be that informed consent to an abortion requires seeing an ultrasound of one’s own fetus?”

    The bill doesn’t require seeing it, does it?

    –“I should think that the standard should be quite high for imposing a procedure of any kind.”

    I suspect that bill’s sponsors are of the view that the standard to which a person’s conscience should be fully informed is particularly high in this case.

    –“So, what’s the magical difference in level of informativeness of seeing an ultrasound and seeing your ultrasound? Sexist reason: Ooo, it’s YOUR BABY so magic bonding moment!!”

    The quantitative or qualitative differences in information (for the patient, anyway) between seeing your own ultrasound, X-ray, MRI or CAT scan and seeing a stock picture that is very similar is an interesting question. But whatever the answer is, it would arguably apply not just to images of developing babies but to anything else that doctors take pictures of, no? Also, it’s not obvious why the answer would be grounded in sexism.

    –“I don’t see why either rationale is incoherent, or at least any more incoherent than the rationale (and requirement) that the amendment is critiquing. She’s not proposing it as good policy, but as as reductio.”

    I understand that the amendment was not being proposed as good policy but as a reductio. The basis for the reductio is a bit muddled; I see more than one possibly implied form of the reductio, but I think the one Sen. Howell is getting at is something like: If X is required, then (gender) equity demands that Y be required, which is absurd. X should not be required.

    The reason I think the reductio is logically incoherent it is that it is not at all clear why the equity would require Y, if by equity we mean at least in part that similarly situated individuals ought to be subjected to similar treatment in relevant respects. The people in X and Y do not seem similarly situated, nor do the treatments in X and Y seem more than superficially similar (if that).

    I hasten to add that none of this is a commentary on the wisdom, as public policy, of the unamended bill.

  10. s. wallerstein Says:

    Hello Nemo:

    I have not investigated this issue at all, but it seems that in theory at least the rationale of the ultrasound is to force women undergoing abortions to “see” what they are doing.

    The rationale of making men get a rectal and a cardiac exam is to force males to “see”
    that they (and society in general) are harassing women by making them undergo an ultrasound test. If men are sufficiently inconvenienced by these exams, they will presumably demand that society stop requiring that women undergo ultrasound procedures before abortion.

    Bothersome measures are often used in international relations as bargaining procedures. For example, the U.S. charges about a hundred dollars for a tourist visa application (whether the application is accepted or not) to Chileans, so Chile obliges U.S. tourists to pay an approximately equal sum of money when they enter Chile. (The U.S. visa policy toward Chile is about to change, I think, as result of negotiations between the two nations.)

    That is, I harass you until you stop harassing me or until you realize that you are harassing me, if you don’t realize it.

    It does not seem that if you harass me, I have to harass you back in exactly the same way, as long as the harassment is roughly proportional in terms of its harassment-quotient.

    What’s important is that my retaliative harassment forces or convinces you to stop harassing me.

  11. Nemo Says:

    SW, I take your point, but not every burden evinces an intent to harass. You are also quite right that imposing exams on men might cause some of them who do not already understand that the ultrasound is in some sense burden to “see” that it is. Yet many (most?) men would already grant that that is, strictly speaking, true. Whether a burden is an undue, excessive or inappropriate burden depends (among other things, I stress) on its context and the goal in service of which it is imposed. And the real issue here, as I see it, is not whether the ultrasound is a burden (as almost any requirement *is* a burden), but whether it is an undue one, which someone could not really deduced or infer from being made to bear some *other* burden, in some other medical context, for some other goal. Accordingly, even though I understand that the bill amendment was not being proposed seriously, I think the joke doesn’t hang together well because it doesn’t seem even theoretically possible that the amendment could have the contemplated effect or resolve any disputed point.

  12. Bijan Parsia Says:

    Hi Nemo,

    First, intent to harass is not necessary for a law to be harassing or for it to violate equity (equal protection).

    Second, it’s well known that the sponsors are crafting laws that skirt as close to an outright ban as possible in the post-Casey but still under Roe legal regime. All these laws have function primarily by harassment, i.e., in the same way that laws harassing immigrants are trying to get them to “self-deport”. I think any cursory examination of the effects of such laws will show that to the degree that they prevent (medical) abortions, they do so by increasing the cost and hassle and not by triggering an informed choice. E.g., they just make the abortion too difficult or expensive to obtain. (Consider 24 hour waiting periods…for poor women, this can mean two long trips to the one abortion clinic in the state and two missed work days.) The anti-abortion movement is quite upfront about all this.

    So, “intent to harass” is a red herring here. The sponsor can be innocent at heart, but their job is to know the actual effects. And I don’t believe for a second that the sponsors are innocent at heart.

    The quantitative or qualitative differences in information (for the patient, anyway) between seeing your own ultrasound, X-ray, MRI or CAT scan and seeing a stock picture that is very similar is an interesting question.

    It really isn’t, at least in current contexts.

    But whatever the answer is, it would arguably apply not just to images of developing babies but to anything else that doctors take pictures of, no?

    Obviously. Hence the sexism and inequity of only imposing it on women. And the transparent bad faith of the sponsors.

    At this point, I’m afraid I get very suspicious of your good faith. If you can make the connection that it’s weird to treat informed consent for abortions as radically different from every other sort of informed consent, you can make the obvious link to the intent of the law. So, I’m not sure what’s up, e.g., whether we’re being trolled. I do want to assume good faith, and there is the Be Nice rule, so I’ll just leave it that I’d appreciate some reassurance on this point, thanks.

    Also, it’s not obvious why the answer would be grounded in sexism.

    It’s very obvious, and I made it more so in my post. A nominal rationale of all these laws are that women don’t really understand the consequences of having an abortion, hence the differential extreme hoops they must go through. Hoops which are applied in a blanket way — equally to a tenured women who has said her entire life that she never wanted to have children and teaches the ethics of abortion every semester who evidences not the slightest doubt during the medical history to the woman who is suffering clinical depression but has always wanted kids but isn’t sure if she deserves to have them. Supportively suggesting that the latter seek some more help or waiting a day before going through with the procedure is reasonable, medically indicated, and helpful. Requiring the former wait a day is insulting. Writing a law that requires treating all women as if they were in the former situation (actually treating them worse than that!) is unjust and sexist.

    Similarly for maternal bonding (with your ultrasound) theories.

    Finally, the reason that it’s is harassment pure and simple is that there is a requirement to have the ultrasound (i.e., pay for and endure an unnecessary procedure) but no requirement to look at the results. Yes, the women can refuse to look at the results but cannot refuse the procedure. So, under this law women must pay and undergo an entirely pointless procedure by the rationale of the law itself.

    I think you’re wrong about the reductio as well, but I’ve burned enough space. Sorry!

  13. s. wallerstein Says:

    I probably should not involve myself in this, but Nemo is not a troll.

    He (or she) can be perverse, contrarian, and a sophist, but at times (although not always) being perverse, contrarian and a sophist are virtues.

  14. Bijan Parsia Says:

    Hi s. wallerstein,

    Thanks for the vouching! Nemo, I apologize for the suspicion, and will up my good faith presumption considerably.

  15. Nemo Says:

    Bijan,

    –“First, intent to harass is not necessary for a law to be harassing or for it to violate equity (equal protection).”

    How do you get those cool indents for quoted text?

    Anyhow, I agree with you. I was simply making an observation prompted by your assertion that there was an intent to harass.

    –“So, ‘intent to harass’ is a red herring here. The sponsor can be innocent at heart, but their job is to know the actual effects. And I don’t believe for a second that the sponsors are innocent at heart.”

    Almost any regulation imposes a burden. I find it very unlikely that the primary goal of ultrasound requirements is to “increase hassle”, as you say. Hassle could be increased by interposing any number and manner of obstacles. I think we must allow that this particular requirement, on the other hand, seems rationally related to the intention of encouraging a change in the subject’s perception of the nature of abortion (regardless of whether it is an efficient or appropriate means of pursuing that goal). It is an obstacle in an incidental (albeit real) sense, not an obstacle for the sake of obstructing.

    –“Obviously. Hence the sexism and inequity of only imposing it on women. And the transparent bad faith of the sponsors.”

    Wait a second. By “Obviously”, I take you to be agreeing that whatever differences in information (for the patient) exist between seeing *an* ultrasound and seeing *your* ultrasound – a question you had raised, and suggested that there weren’t any significant differences – also apply to X-rays, MRIs and the like. It follows that if it’s *not* materially more informative for patients to view their own ultrasounds rather than any substantially similar ultrasound image, it also does not contribute to to a patients’ information that they be able to view their own X-rays and MRIs as opposed to similar stock photos. Does that seem right?

    “At this point, I’m afraid I get very suspicious of your good faith. If you can make the connection that it’s weird to treat informed consent for abortions as radically different from every other sort of informed consent, you can make the obvious link to the intent of the law.”

    Whether the bill treats informed consent for abortions as radically different from *every* other sort of informed consent, I couldn’t say. Clearly it treats it as different from some kinds of informed consent. However, assuming arguendo that the bill *does* treat it as different from every other sort of informed consent, that fact alone isn’t inherently weird if – as is widely held to be the case – abortion is unique in any meaningful respect. That doesn’t mean that the proposed way of treating informed consent for abortion isn’t inappropriate, merely that it is not necessarily inappropriate solely by virtue of the fact that it treats informed consent in a way different from other.

    With regard to the assertion about sexism, it does not seem to me that a law that applies solely to pregnant individuals seeking an abortion is necessarily sexist or reflects gender inequity notwithstanding that any individuals in the class will also be women. Possible, but not necessary. If, as I speculated earlier, equity consists substantially in treating similarly situated cases in similar ways, the counterargument that there are no similarly situated cases to those in the affected class strikes me as a problematic one to overcome in this case. Certainly it is relatively easy to argue that the class affected by Sen. Howell’s amendment (individuals seeking ED treatment) is not similarly situated to those affected by the original bill (individuals seeking to terminate their pregnancies), which is partly why I found that Sen. Howell’s point missed the mark.

    –“Yes, the women can refuse to look at the results but cannot refuse the procedure. So, under this law women must pay and undergo an entirely pointless procedure by the rationale of the law itself.”

    (Technically, they can also refuse the procedure, although it would mean that they can’t then proceed to abort.) However, even though the *procedure* is arguably pointless in specific cases where someone refuses to look at the results, it does not logically follow that the requirement is pointless – which is not to say that it is necessarily a good idea.

    Good discussion!

  16. profbigk Says:

    Hey, thanks for the self-management of your discussion, gang. I was really tied up at the paying job today, with no opportunity to come by and say, “Nemo’s not a troll.” He’s not, so special thanks to s.wallerstein for being willing to wade on in there. Thanks to all y’all for the civility and detailed discussion.

  17. [...] me and several others) to be problematic from some feminist points of view. In a prior thread, I asked whether Nemo was trolling and was assured the contrary. In this thread, other people felt that Nemo [...]


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