Monday, April 26, 2010

Is The Oklahoma Legislature Really Determined To Legalize Rape And Medical Malpractice In Order To Stop Legal Abortions?

As the New York Times reported over the weekend, Oklahoma governor Brad Henry, a Democrat, vetoed two abortion bills last week. "One measure would have required women to undergo an intrusive ultrasound and listen to a detailed description of the fetus before having an abortion. Mr. Henry, a Democrat, said Friday that the legislation was flawed because it did not exempt rape and incest victims," the Associated Press report noted (I say the Associated Press because the Times does not think women's right to choose is actually important enough to report on, especially when the story is about women in a flyover state, so they simply reprinted a wire story.)

Mr. Henry said that “it would be unconscionable to subject rape and incest victims to such treatment” because it would victimize them again.

“State policymakers should never mandate that a citizen be forced to undergo any medical procedure against his or her will,” Mr. Henry said, “especially when such a procedure could cause physical or mental trauma.”

Under the ultrasound legislation, doctors would have been required to use a vaginal probe in cases where it would provide a clearer picture of the fetus than a regular ultrasound. Doctors have said that this is usually the case early in pregnancies.

The second bill "would have prohibited pregnant women from seeking damages if physicians withhold important information or provide inaccurate information about their pregnancy. Supporters of that measure said it was an attempt to keep pregnant women from discriminating against fetuses with disabilities." The Oklahoma legislature, which has passed this legislation before, vows to do so again.

Putting aside the question of why you would want to legalize doctors lying to patients, what no one has mentioned about the first bill is that it comes into direct conflict with Oklahoma's rape statute. If, in order to obtain a perfectly legal abortion, a woman must permit herself to be penetrated by an ultrasound probe -- in whatever way, or for however long, the technician and doctor wish to do so, that seems to me to be what statute 21-114 of the Oklahoma Criminal Code defines as rape by instrumentation. This act (putting an object in a vagina, anus or mouth against that person's will) is explicitly defined as rape in the first or second degree.

Coercing a woman into being raped with an object, for whatever reason, is, in fact, rape: this was first established in State v. Rusk (1979), which transformed the legal and popular view of what counted as forced sex by defining as rape any unwanted sexual intercourse, even if a man believed that a woman ought to give it up in return for the drinks and dinner he had purchased earlier in the evening. And by the way? Although it has been technically invalidated by Lawrence v. Texas (2003), Oklahoma still has a sodomy statute on the books too.

Furthermore, it isn't clear to me why, if the legislature is institutionalizing rape as the only path to a legal medical procedure, it matters that whether a woman has come to you having been already traumatized by sexual assault or not. Being raped once is "Oklahoma, OK", as they say in the song (particularly if you get your life back in return), but being raped twice is an act to which the state cannot consent?

Remember when various agents of the state-- cops, judges -- or your average college guy would suggest with a grin that you could just "lie back and enjoy it?" Or perhaps you recall those dark days prior to the feminist anti-rape movement when girls and women were routinely counseled that they only way to ensure that you would not be killed or beaten by an assailant was to be passive permit the rape to occur?

So where are feminists on this one? In our post-Abu Ghraib world, that women who have gotten pregnant through consensual sex would be imagined as candidates for rape-by-technician doesn't seem worth a mention by organizations like NARAL-Pro-Choice America (which has virtually eliminated the word "abortion" from its name) or the National Organization for Women (which has nothing about the Oklahoma bill on the portion of its web site devoted to abortion rights.) These are groups that ask for our donations in the name of preserving our access to the law. Feminists are not the only ones who have dropped the ball here. Although the AMA reported on the previous versions of the bill, struck down by court order in 2009, they made no public statement that I can find condemning the participation of medical personnel in procedures that enshrine violence against women in the law.

This is of course, the endgame of feminist lobbyists and their so-called allies in the Democratic Party having ceded the abortion debate for all but those of us who can pay to control the integrity of our own bodies. While abortion is technically legal, it is actually available to a fraction of American women who have the money to preserve their civil rights. Now abortion activists want to go after the rest of us, by forcing women to be physically tortured and verbally abused by crazy people funneling their projected fantasies about the innocent "baby" you are about to "execute."

And while we are at it, does anyone but me see see some relationship between how the Vatican and the Catholic Church hierarchy around the globe has handled institutionalized child sexual abuse, its successful attempts to constrict the civil and human rights of GLBT people and the lack of value the Church puts on women's lives by its lobbying efforts against legal abortion and birth control? And yet, organized feminism in the United States is not talking about this either.

People talk about political reform as if it could, and should, only happen in formal political frameworks. From my perspective, organized feminism has become too complicit with politics, too wedded to the business of lobbying and compromise, too interested in the forest and uninterested in the trees that make up the lives of ordinary people.

Have we given up?

Noon Update: for more observations about sexual violence in plain sight, go to today's post at Roxie's World.


Fie upon this quiet life! said...

I'm with you on most counts, but I think that calling the vaginal ultrasound probing "rape" is going too far. I have a pap annually, and I really don't want to, but that doesn't mean that my doc is raping me with a scapula. I get anxious about the exam, and I hate it, but I wouldn't press charges.

I agree that abortion should be legal, and I think that the law cited here is ridiculous. But implying that a doctor a rapist just for doing her job is going a little too far, in my judgment.

Tenured Radical said...

Don't you think that there is a difference between giving someone an ultrasound/vaginal exam to promote good health and one that is done to punish women who want to access their legal right to abortion? Just like there is a difference between consensual sexual intercourse and having sex with someone because he won't let you out of the car until you do?

Roxie Smith Lindemann said...

With you on this one, TR. Forcing a woman to have ultrasound against her will is rape by instrument. Beyond appalling.

And thanks for the shout-out. Just another busy day for violence against women, I guess.

Historiann said...

Fie up on this quiet life!:

The difference between your pap smear and the Oklahoma law just vetoed is that no one has passed a law requiring you to submit to your pap smear on pain of criminal prosecution. The problem is the coercive arm of the state, not the specific form of a given medical procedure.

Tenured Radical: great question about where are the feminists on this one. To paraphrase Will Rogers: "I don't belong to an organized political movement. I'm a feminist." Funny how they all have my e-mail address and phone number when they want to gin up my outrage at something in Washington, though.

Anonymous said...

Let's not forget that "rape" by definition is about power and shame. A proper and voluntary health exam empowers a woman to maintain good health by choice while an intrusive ultrasound mandated by law designed specifically to weaken a woman mentally while shaming her to boot should be termed nothing less than "rape".
Now whether the doctor, by complying with the law, or the legislators, by making it law, are the actual rapists is what our best legal minds should determine and once they do, those found to be rapists should be held to the letter of the law as any other.

gklyric said...

I always wonder why a fetus is more morally destructible when it is the result of rape or incest (and what is the standard of proof for these?) than any other fetus?

Fie upon this quiet life! said...

Yes, I do think there's a difference, but I don't think the docs are rapists, nonetheless. And don't you think if a woman were told that she had to submit to this exam before an abortion that she could decline the exam, and then go to a different state and have the abortion? That would be awful, but there are other options.

I grew up in central Indiana, and the girls I knew who got abortions drove to Kentucky for them. I don't know why, exactly, but I assumed it was because it was easier to obtain services there -- or cheaper. Who knows?

Anyway - isn't this a moot point? Wasn't the law vetoed? Someone in their right mind saw that it was a problem, right? You quoted the governor as saying, "'State policymakers should never mandate that a citizen be forced to undergo any medical procedure against his or her will,' ...'especially when such a procedure could cause physical or mental trauma.'" That sounds good to me.

Later in your comments, you say that the doc or technician could probe the patient "in whatever way, or for however long," which to me is perhaps rhetorically effective, but is completely wrong. Having been probed with just such an ultrasound tool myself in early pregnancy, I can say that the doc uses it for a specific purpose and doesn't just lollygag with the thing hanging out of you. Doctors aren't in the business of humiliating and abusing women, whether they want an abortion or not. And if the docs were to do a procedure required by law, they would not be doing it as punishment. It is ridiculous to think so! If you want to place blame, you could place it on the legislature, but don't blame doctors! And certainly don't call them rapists.

Tenured Radical said...

Dear Fie:

I'm not sure what part of "not a medically necessary procedure" you don't get here -- the only reason for this procedure is so that the medical person in charge can give a lengthy description of the "baby" in an attempt to change the woman's mind. And under what conditions are we, as citizens, blameless when we harm people at the state's behest? If, as a teacher, you were instructed to lie to your students, would you do it? And just out of curiosity, have you ever been strip-searched by the police when they have a point to make that a little humiliation would underline?

And by the way, I didn't call doctors rapists -- you did. I said that the procedure that the law would mandate is rape by instrument, and it is.

Just drive to another state for an abortion? Are you kidding? And the people without cars or money to buy gas -- should they walk to another state to get an abortion or agree to be probed and given the Right to Life lecture?

Fie upon this quiet life! said...

Well, having never had an abortion, but have been pregnant twice, I can say with certainty that you cannot always determine how old a fetus is by looking at a woman, or even by asking when the first date of the last period was. I had a fake period with my second child (implantation blood), and so I didn't realize I was pregnant until after I had technically missed two periods. Wouldn't it be necessary to have an ultrasound to determine the age of the fetus so that the appropriate procedure could be used to remove it? There are multiple techniques to perform an abortion, and it is definitely necessary to know what technique to use in order to make this the most safe procedure for the woman. Fetal age will be a major determining factor in deciding what technique to use. Or are you suggesting that every woman who gets pregnant knows the exact time and date of conception, and/or the exact time and date of the first day of the last period. In my experience, these things aren't always so cut and dry. And in fact, most women I know who have had children (or abortions!) have been unclear about when the fetus was conceived.

So if you're so concerned about women, their rights, and their safety, then I would think you'd advocate a complete examination so that they would be able to get the best service possible. And yes, that would definitely, absolutely include a vaginal ultrasound, which can most accurately determine the age of the fetus. At the youngest age, a fetus cannot be detected by the belly ultrasound, so a vaginal ultrasound is necessary.

It is not necessary for the woman to see the ultrasound or to hear a description of it, but I would think that some kind of ultrasound to determine the best procedure to use would probably be standard practice for safety -- not in order to humiliate women.

And no, I've never been strip searched. Have you?

And I'd like to know how you can say that you did not imply that doctors would be rapists in this situation. I've never heard of a rape that was done by an object alone and not by a person wielding an object. There cannot be a rape without a rapist. Who is the rapist here if not the person holding the object?

Again, I am pro-choice. I am pro-women. And I am also pro-safety. I'm not pro-humiliation. Nor am I pro-exaggeration. I wouldn't lie about my principles, and in fact, won't apply to jobs where I have to sign a faith statement -- even though I have to pass up a lot of jobs in a desperate job market because of it.

And again -- this law was vetoed!

Notorious Ph.D. said...

...that women who have gotten pregnant through consensual sex would be imagined as candidates for rape-by-technician doesn't seem worth a mention by organizations...

See, THIS is what pisses me off about the abortion debate these days: that these women's organizations have totally bought into the anti-choicers' terms, which explicitly divide women into deserving and undeserving, based on whether or not they've willingly had sex. This became the subject of my own medieval stuff research, so I've thought more about this than is good for my serenity. I am ANGRY that I, as a (sometimes) sexually active single woman don't merit the same protections as a more chaste woman, even according to the groups that are supposed to be my allies.


(Sorry for focusing on a tangent rather than on the point of your post, but This is a big deal for me.)

Fie upon this quiet life! said...

Just FYI, here's what Planned Parenthood's website says about what you should expect if you're going to have an in-clinic abortion:

"It’s common for women to be nervous about having an abortion — or any other medical procedure. But most of us feel better if we know what to expect. Your health care provider will talk with you and answer your questions. But here’s a general idea of how it works and what to expect.

Before the abortion procedure, you will need to
* discuss your options
* talk about your medical history
* have laboratory tests
* have a physical exam — which may include an ultrasound
* read and sign papers"

They cite two different kinds of abortions provided there - aspiration abortion and D&E — Dilation and evacuation abortion. The former is for first trimester, the latter for second trimester.

If the fetus age cannot be determined by the woman's cycles (either she doesn't know when she got pregnant, has irregular cycles, etc.), then a ultrasound is the best way to determine fetus age, and therefore determine what procedure to follow. I suppose an ultrasound shouldn't be required by law, especially not as a rhetorical ploy, but it probably should be required by medical practice -- for the patient's safety.

Tenured Radical said...


You are obstinately no getting the point -- the purpose of this law is not to deliver health care, to a woman or her child. Read it, why don't you? It is *explicit* in the law that the point is to dissuade women from having abortions. And since when has any form of health care been mandatory? Name one form of health care that we are all forced to have by legal statute.

The other point is that it has been vetoed twice -- and the legislature intends to keep passing it until they have a governor who will sign it. In addition, the governor has given, as his reason, not that it is a violation of a woman's right, but that there is no exemption for the woman having been raped or incested.

Peace out.

Anonymous said...

Thank you for a great post. I had heard a bit about this law getting vetoed - and was happy to hear it - but I hadn't heard the specifics that you brought to light. That is appalling. Just appalling.

And, to Fie: If it was a necessary procedure, doctors would do it, or support it. If you check the AMA link TR posted, you'll see that they aren't. The only reason this law was written was to force women to act as the writers want them to, regardless of their health and safety.

And, in response to your comment about getting probed - some women experience severe pain from pap smears and probes. ANY amount of time is too long, any way is wrong. Doctors need to decide what's best for their patients, not elected jerks who think they have a right to choose what happens to women's bodies.

Liz in Ypsilanti said...

I read this post yesterday and have thought long and hard about a response. I am a childless middle-aged Catholic woman. I have been an active church volunteer for most of my life (dating back into the 1970s). I have held, I think, every possible opinion about abortion. Here is my current thinking:

Every human being is called to live as fully and as freely as is possible, and each of us is called to help those around us live fully and freely. Each day, each of us should be acting as our very best selves, honestly acknowledging the reasons we are behaving as we are.

If the world were full of people behaving in such a way, there would be no need for arguments about abortion because people would think carefully before conceiving children. Every child would be born into a loving home ready to receive it. Until that day comes, we need to make allowances for second thoughts.

Similarly, every person would be free to openly acknowledge and embrace his or her sexuality in the way that he or she understands it. There would be no need to hide or deny the truth.

I am so incredibly angry and frustrated with the powerful men who rule Roman Catholicism with iron fists and stern discipline while denying whole parts of their own selves. There are several things going on within the Church right now that show the depths of the hatred and distrust they feel toward women.

Up to now, I've hung in because I figured that better days were coming. I'm not sure those days are coming in my lifetime, and in order to hold on to my better self, it is looking as though it is time for me to walk away. I feel so sad right now. Is this what divorce feels like?

Anonymous said...

Fie, I'm not going to wade into the debate that you're engaging in but actually this piece of legislation is still in play, veto or not. The New York Times has just reported that the Oklahoma legislature has voted to override both vetoes. So these issues are indeed very salient.

Actually, let me wade into the debate just an inch: why is it okay for a legislature (surely a predominently male one) to demand that women who have been raped once again subject themselves to another invasive probing? Whether we call it rape or not, something is unnecessarily going into a woman's vagina as the gateway procedure for her to get an abortion. Surely, that's not right.

AcadeMama said...

TR: As an Oklahoman, a feminist (some might say radical), and a pro-choice advocate, thank you so much for bringing this to my attention. I know myself to well to engage in some of the comments here, as they would ultimately turn into diatribes. I will, however, say that "Fie" has no clue what women have to go through to get an abortion. No clue how even a "regular" ultrasound can be used to manipulate a woman's feelings about the decision to terminate a pregnancy. A decision that she has likely agonized about for days, probably weeks. A decision that, for her and the fetus, is utterly the right choice. No clue what it means to be already a mother, having gone through the joy of hearing a first heartbeat, delivering a healthy baby, and raising that baby...only to later be in a position where being a mother again is *not* the right choice. I know what this feels like because this was just a portion of my abortion experience.

No form of ultrasound is unobtrusive. When an outsider looks into one's body, a boundary is crossed. A judgment is made. Power is on display. All the while, you just lay there, hoping to have the strength to do what is right for you---whatever that may be.

JackDanielsBlack said...

I see in the NY Times this morning that the Oklahoma legislature has overridden the governor's veto. I, for one, say "Thank God!" Maybe we are approaching an end to America's very own holocaust.

Tenured Radical said...

Dear Jack,

See you in the Supreme Court. This is, I suspect, the ultimate purpose of this legislation, since it is too ridiculous even for the pro-choice forces to have imagined as a practical way to end abortion: to force a re-hearing, and the what they hope will be the defeat, of Roe.

Lurking Geneticist said...


There actually is a "form of health care that we are all forced to have by legal statute." All newborns are given the Guthrie test for the genetic disease Phenylketonuria. Requires a heel prick and a few drops of blood from the wailing squirmer, but early identification allows the special diet to prevent severe mental retardation. Unless on well water, we're all subjected to fluoride and chlorine in our water for strong teeth and prevention of bacterial infection, respectively, and folic acid in bread to prevent neural tube defects. All public health measures for which I am grateful.

Meanwhile, I mainly came here to thank you for your remarks about campus rape, as summarized in the Middletown Eye. Some has to say it loudly and regularly. Rape is a crime to be prosecuted in the courts, not "hijinks" to be dealt with by student honor boards.

Unknown said...

Can someone tell me why Women's groups endorsed Obama over Hillary when no endorsement was necessary? I support the President, but he completely sold out women and rolled the clock back. Hillary would NEVER have let this happen.

And this isn't rhetorical. I would like someone to explain that endorsement to me.


Shana said...

Yes, the OK legislature is determined to legalize rape and medical malpractice in order to stop legal abortions, and nobody who lives here is all that surprised, which is a heck of a depressing thing.

It's rape. You're standing between me and the legal exercise of my rights with a lubricated "dildo-cam." And yes, an ultrasound may be standard procedure before an abortion, but the show-and-tell presentation "explaining" things to the woman sure isn't. This is aimed squarely and solely at guilting vulnerable women into keeping their pregnancies, under the guise of "educating" and "informing" women, which naturally leads one to ask if, in 2010, they really think women are that stupid. The entire thing stems from the view that the people pushing these laws know better than abortion-seeking women do, because if those women knew anything at all, they wouldn't be seeking abortions in the first place! We're HELPING them by patronizing them, coercing them, creating barriers to the exercise of their legal rights, and generally making their lives difficult because we wouldn't choose as they are and are just positive that once they've gone through with the abortion, they'll see the light and come around to Seeing Things Our Way (The Right Way).

And where, you might ask, are the show-and-tell crowd after birth? Off somewhere complaining about welfare queens and socialism and layabouts who blah blah blah on the poor working man's dime. *tiny violin*

And when you point out this hypocrisy (never mind the sheer unconstitutionality), they say that it's for the women's own good, that they would've regretted the abortion, and that they're merely "celebrating life." While they have their tea parties and screech about My Wallet this and My Tax Dollars that.

In short, I live in Oklahoma City and I can attest that the people here are crazy right-wing zealots who refuse to entertain notions of differing values, preferring to foist their beliefs on others in the land of the "free." I can also attest that as soon as I can possibly get out of this state, I will, because I hate the fact that my continued presence here basically amounts to "I really, really, really disagree with this, but I'll put up with it." Politicians only hear the last bit of that, and I am paying these buffoons' salaries, which is something I'm trying hard not to think about. (I'm paying them to try to screw me out of my rights.)

Like I said elsewhere, the party of "freedom" and "small government" needs to get out the dictionary, because those terms don't mean what right-wingers think they mean, and this is a spectacularly infuriating place to live, with no political recourse, because libs are so outnumbered -- we can either deal or flee.

EC said...

Hi- minor point here from a 1L studying for a criminal law exam-
Unfortunately while it reconceptualized the force and resistance requirements of rape law, Rusk did not change the legal definition of rape to "any unwanted sexual intercourse."

Most jurisdictions still start from a baseline of consent and require some kind of force, threat of force, or physical resistance to make non-consensual sex into rape.

I am saying all this because I believe the legal standard should be that non-consensual sex is rape and think it is important that people other than 1Ls know the disconnect between popular belief and the law.

Triptrain said...

"And under what conditions are we, as citizens, blameless when we harm people at the state's behest? If, as a teacher, you were instructed to lie to your students, would you do it?"

Exactly what do you expect the doctors to do in this situation? Do you realize that Operation Rescue is offering a $10,000 reward to ANYONE who offers ANY information leading to the conviction of an abortion provider? If every Oklahoma doctor simply ignored the law and provided abortion services without the newly-mandated ultrasound, there would very shortly be NO abortion providers left in the state.

Tenured Radical said...

Good point. Let's cower in fear and give up on any moral perspective not preapproved by the Vatican and the extreme right wing.

JackDanielsBlack said...

Ah yes, the nefarious Vatican. Since the Catholic population of Oklahoma is about 4.6%, I doubt that the Pope has much pull there.

davidjhemmer said...

I think there are reasonable arguments on both sides of the abortion issue. However noone can deny an abortion involves a killing of human life. If our society is going to allow the killing of a human life, I don't think it's unreasonable for the person passing the death sentence to at least have to look at the baby before signing its death warrant.

skylanda said...

A point of technical clarification: An ultrasound is done before every abortion in this ultrasound through the abdomen, which is done to date the pregnancy and ensure it is within legal dates. Requiring an ultrasound through the vagina is an additional burden that serves no clinical purpose other than to harass women (nevermind the providing doctors) with an invasive, unnecessary procedure that can be doubly traumatic for those whose pregnancies resulted from penetration they did not consent to in the first place. The sanctimonious whining about "holocaust" and "murder" - that women would change their mind if they just saw that little baby first? Every women already gets an ultrasound first. Just not one by phallic probe up the vagina. So thanks for both the naivete and the condescending whine, but rape victims (nor anyone else) are not needing either from you, thanks.

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angelasw said...

It's not "society" allowing. Why does "society" get to decide when I have my family, how, or why? Why do 300 million people have the right to my vagina and uterus? Is "society" also going to punish every woman who suffers a miscarriage for "failing to adequately commit her body to the task of preserving life"? A "human life" ends with each miscarriage as well. How are you going to punish me for that? I know there is a difference, I am not so stupid or young, but in the end of it all, in both cases a "possible human life" ends.