Laws that mandate ultrasound viewing and parental consent seem innocuous, but they buttress a punitive political strategy. Illustration by Harry Campbell

At a town-hall meeting in Green Bay, Wisconsin, last March, Donald Trump was prompted for his views about abortion. He’d been pro-choice once, but as a Presidential candidate he was an eager, if ill-informed, pro-lifer. Much of his answer took the form of free-floating clauses, like dialogue from a bad experimental play, which made his actual positions challenging to parse. But Trump did manage to make one point clearly, and to repeat it. When the interviewer, Chris Matthews, of MSNBC, asked whether women who’d had abortions should be punished, Trump answered in the affirmative.

Politically speaking, this was not good. In recent years, the anti-abortion movement has tried hard to show that it cares as much about women as it does about fetuses. Right-to-life groups criticized Trump’s wayward messaging, and, later that day, his campaign issued a statement explaining that it was actually doctors who ought to be punished if abortion were made illegal again: “The woman is a victim in this case as is the life in her womb.”

Trump kept more or less to that script for the rest of the campaign; his choice of Mike Pence, a flawlessly anti-abortion evangelical Christian, as his running mate surely helped. But Trump’s off-the-cuff comment had briefly exposed a truth at the core of anti-abortion politics. Since the nineteen-nineties, states have enacted hundreds of new restrictions on the constitutional right to abortion, from obligatory waiting periods and mandated state counselling to limits on public and even private insurance funding. The cumulative effect has been to transform the experience and the reputation of a safe, legal medical procedure into something shady and disgraceful that women pursue only because they don’t know enough about it or because they are easily manipulated emotional time bombs.

In a clear and persuasive new book, “About Abortion” (Harvard), Carol Sanger, a professor of law at Columbia, explores the roots and the ramifications of this chastening regime. “Much of current abortion regulation operates to punish women for their decision to terminate a pregnancy,” Sanger writes. “This is so even though abortion has not been a crime since 1973, and even then, women themselves were rarely included within criminal abortion statutes.” When you cannot ban something outright, it’s possible to make the process of obtaining it so onerous as to be a kind of punishment, Sanger argues, drawing on the ideas of the legal scholar Malcolm Feeley.

Consider the rise of Women’s Right to Know laws, a cornerstone of Sanger’s argument. Since the mid-nineties, such laws have been enacted in twenty-six states. They require that a pregnant woman seeking an abortion have an ultrasound of the fetus. In all but one of those states, she must be asked if she wants to look at the image. Some state laws require that her decision to look or not to look be noted and retained in her medical record. Six states—North Carolina, Oklahoma, Kentucky, Louisiana, Texas, and Wisconsin—go further: the monitor must be turned so the patient can see it, and the physician must narrate in detail, and in real time, what he or she is seeing. (The laws in North Carolina and Oklahoma are currently enjoined.)

At first glance, this approach might be mistaken for some sort of helpful, modern interpretation of informed consent. Sonograms are a nearly ubiquitous ritual of wanted pregnancies now, and in that context most people think they’re swell. Even those of us who could never quite make out what we were supposed to be seeing in the fuzzy, gray-scale images on the screen got teary-eyed, took the resulting printout home, maybe passed it around the office. These days, people might post their sonograms on Facebook, show them off at a baby shower or a “gender reveal” party, paste them on the first page of the baby book. Moreover, many doctors who perform abortions will do an ultrasound for legitimate medical reasons—to check how far along a pregnancy is, or to pinpoint where the embryo is situated.

But mandatory ultrasound laws are insidious. They proceed, first of all, from the notion that women don’t realize that in choosing an abortion they will be ending some form of life, however they think of that life. Considering that nearly sixty per cent of women who have abortions have already given birth at least once, and so know something both visceral and emotional about pregnancy, fetal development, and childbirth, this is quite an assumption. Framed as a “right to know,” the ultrasound obligation becomes even more disingenuous—“the right,” as Sanger neatly puts it, “to be persuaded against exercising the right you came in with.”

Another premise of the ultrasound laws is that women can be saved from their lack of knowledge and spared a lifetime of crippling regret. The idea that in undergoing abortion women experience something tragic and specific called “post-abortion syndrome” has been a linchpin of the anti-abortion movement in recent years. Like the claim that there is a link between abortion and breast cancer, this has been effectively refuted. A meta-analysis by the American Psychological Association found no evidence to “support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors,” such as a prior history of mental illness. A 2011 review of scholarly evidence by the Academy of Medical Royal Colleges, in the U.K., found that “rates of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth.” Yet eight of the seventeen states that require counselling for women before an abortion stipulate that the counselling must include information on the procedure’s long-term mental-health consequences; five states say that it must cover the discredited link between breast cancer and abortion. This is not informed consent but ill-informed consent, with a side of coercion.

Evidence of regret is not refutable in the same way. Some women will regret having had an abortion, just as some will regret having a baby, getting married, dropping out of school, or a thousand other life choices that people make. Second thoughts are the lot of all decision-making adults; choosing one path closes off others. But, as Sanger writes, the Women’s Right to Know laws “draw upon a deep reserve of sentiment about what mothers are like and what causes them harm,” and the assumptions in both cases may well be wrong.

The laws’ clear intent is to discourage women from terminating their pregnancies, but they appear to be failing to do that. Only a few studies have examined the effects that viewing an ultrasound has on women seeking abortions, but they suggest that it rarely changes their minds. In a 2014 study of more than fifteen thousand women who visited Planned Parenthood clinics in Los Angeles, around forty-two per cent of those who were offered the option of seeing the sonograms chose to; more than ninety-eight per cent of them decided to proceed with the abortion anyway. This confirmed the results of two smaller studies, in Canada and South Africa. The authors of the Canadian study observed that some women looking at the image had felt relief: “We have been aware that women tend to imagine something more like a miniature baby and this may be partly due to the images spread by antiabortion organisations. Since most abortions are carried out in the first trimester, often no more than a gestational sac is seen and many women find this reassuring.” In a setting where women could not refuse to view the ultrasound or where counsellors were bent on persuading them not to have an abortion, perhaps the results would be different. But let’s say the pattern of those studies holds, and viewing the fetal images doesn’t make much of a difference. Should we care about these laws anyway?