One of the most profound pro-life moments of 2014 came at the hands of an unborn child whose “thumbs-up” bore a striking resemblance to the trademark gesture of Arthur “Fonzie” Fonzarelli. A photo of the ultrasound went viral and inspired mothers to share images of their own unborn children. Millions of people were exposed to a strong pro-life message, even if many of them did not realize it at the time. Even the major news networks, normally reliable shills for “reproductive justice,” admitted that they were indeed seeing pictures of babies.
When a matter is as hotly charged as the abortion debate, the mechanism for sharing a message can prove as important as the message itself. Ultrasounds, and other improving technologies, can help the pro-life movement persuade previously unreachable individuals. Despite their public denials, pro-choice organizations understand this, and in fact have conceded the point in lawsuits challenging mandatory ultrasound laws.
Recognizing the power of these images, states are adopting laws requiring doctors to perform an ultrasound before an abortion. This has sparked legal challenges, including to laws adopted by North Carolina and Texas. The laws generally require abortionists to perform an ultrasound and to show and explain the image to the mother. No one asserts that the images are misleading or that the laws require additional explicit pro-life commentary.
Abortion providers challenged these statutes, claiming that they violate doctors’ First Amendment rights by forcing them to deliver a pro-life message. The arguments made by opponents of those laws, as well as by judges hearing those cases, reveal a remarkable unanimity of opinion. Everyone agrees that ultrasound images, and undisputedly truthful explanations of those images, can further the pro-life cause.
The plaintiffs challenging the Texas law categorize a requirement that doctors give “a verbal description of the ultrasound of the embryo or fetus” as making doctors into “the mouth piece for the State’s views” in an “an effort to convince [a mother] to carry the pregnancy to term.” They also describe the image and explanation as “political messages.”
In their appellate brief, the plaintiffs in the North Carolina case describe the law as coercing doctors into promoting the state’s “ideological interest” in promoting childbirth over abortion. They claim that the law “commandeers unwilling physicians . . . to communicate the state’s message against abortion.” They describe showing and explaining an ultrasound image as an inherently ideological act that “conveys more than purely factual information.”
Courts have divided over the merits of such First Amendment challenges, but they agree about the pro-life impact of the images and explanations.
The Fifth Circuit upheld the Texas law as a valid “part of the state’s reasonable regulation of the medical practice” and stated that “discouraging abortion is an acceptable effect of mandated disclosure.” The court was not concerned by “the possibility that such information might cause the woman to choose childbirth over abortion.” It noted that “if the sonogram changes a woman’s mind about whether to have an abortion . . . that is a function of the combination of her new knowledge and her own ‘ideology’ . . . ” A concurring judge stressed that precedent indicated that “the fact that such truthful, accurate information may cause a woman to choose not to abort her pregnancy only reinforces its relevance to an informed decision.”
The Fourth Circuit struck down North Carolina’s similar law, characterizing the showing of an ultrasound picture as an attempt to “dissuade the patient from continuing with the planned procedure.” It noted that showing a mother an ultrasound and explaining the image “explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate.”
All these sources agree that the more a mother knows about her child, the less likely she is to abort him. This is not because ultrasound images are misleading or politicized; it is because they supply a mother with truthful information necessary for making an informed choice. As the Fifth Circuit noted, even though the images do not inherently convey any ideological message, they contain information that may combine with a mother’s own “ideology” or “values” to influence her judgment in favor of life. In other words, once a mother sees her child, she may understand the barbarism of what she is about to do. It is no wonder that pro-choice organizations are suing to make it harder for mothers to learn the truth. Facts about human development are not neutral observers in the abortion debate; they are pro-life partisans.
There is no one so firmly in the pro-abortion camp that they cannot be persuaded. Norma McCorvey, a.k.a. Jane Roe of Roe v. Wade, became a pro-life advocate. Bernard Nathanson, the founder of the pro-abortion organization NARAL, transformed into a pro-lifer. Abby Johnson, the director of a Planned Parenthood clinic in Texas, also decided to advocate for life.
In 1996, Gallup found that 56 percent of Americans considered themselves pro-choice and 33 percent considered themselves pro-life. In 2014, the numbers are virtually even. Improvements in science and technology will help ensure that this trend continues. Many people may see pictures of the “Fonzie baby” and others like him as cute distractions, but hopefully those pictures can help save millions of lives and bring us closer to the day when Americans look back on the era of abortion on demand as an abomination similar to the institution of slavery.
— Howard Slugh is an attorney practicing in Washington, D.C.