11th Circ. Reinstates Vaginal-Ultrasound Case

     (CN) — The 11th Circuit revived three students’ claims that employees of Florida’s Valencia College violated their right to free speech and protection against unreasonable searches by pressuring them to undergo transvaginal ultrasounds.
     The three former sonography students who attended the public college sued the school and several of its employees in May 2015 after the employees allegedly retaliated against them for initially refusing to undergo transvaginal ultrasounds as part of their education. Sonography is a type of medical imaging using ultrasound.
     Although two of the students eventually submitted to the invasive procedure, they claim that the ultrasound equates to an unconstitutional search.
     The procedure involves a sonographer inserting a large probe into the vagina in order to see the reproductive organs, including the cervix.
     Since many women experience pain during the procedure, the probe is heavily lubricated, and sometimes the sonographer will stimulate the patient so the probe goes in easier.
     Although a student’s agreement to undergo the transvaginal ultrasounds is supposed to be voluntary, college employee defendants — program chair Barbara Ball, clinic and laboratory coordinator Linda Shaheen, lab tech Maureen Bugnacki and instructor Suda Amodt — are alleged to have successfully pressured the two students into undergoing the procedure, even though one of their peers was a man.
     According to court records, new students are told at their orientation that undergoing the procedure will make them better technicians.
     “If students refused, the employees would browbeat them and threaten their academic standing as well as their future careers,” according to the 11th Circuit’s Tuesday ruling.
     The two students who did eventually submit to the procedure say they were told they would suffer academically and professionally if they refused to participate. They were allegedly told their grades would be lowered and that local hospitals would blacklist them.
     Holding out, the third student who refused to submit to having a transvaginal ultrasound was given two failing grades by Amodt and was told she was going to be barred from a local hospital, court records show.
     The instructor then allegedly yelled at her for over an hour until the student had a panic attack.
     Valencia College and the defendant employees got a federal judge to determine the students had not engaged in protected speech under the First Amendment. The judge also found that the transvaginal ultrasounds were not a search before dismissing the claims a year ago.
     The students then turned to the 11th Circuit, where they argued the invasive ultrasound equates to a search because it is not required for investigative reasons. They also claimed they have a right to speak out against the procedure since they are not engaging in school-sponsored expression.
     The 11th Circuit agreed Tuesday, reversing the lower court’s ruling.
     Writing for the unanimous three-judge panel, Judge William Pryor said it was wrong to find the students’ private complaints were school-sponsored expression since their objections were not made while being supervised by faculty, did not bear the imprimatur of the school, and did not attempt to impart any particular knowledge.
     In considering the question of unlawful search, the 11th Circuit panel found that inserting a probe into a woman’s vagina is plainly a search when performed by a government entity like a public college.
     “Even under the broader test that a ‘search’ is ‘any governmental act that violates a reasonable expectation of privacy,’ each ultrasound clearly constituted a search,” Pryor wrote. “‘It is obvious’ that the ‘compelled intrusion into the body…infringes an expectation of privacy that society is prepared to recognize as reasonable.'”
     The former students’ attorney, Christopher Dillingham of Gagnon Eisele Dillingham in Winter Park, Fla., did not respond Thursday to a request for comment.
     Richard Mitchell of GrayRobinson in Orlando, attorney for the Valencia College employees, has also not responded to Courthouse News’ request for comment.
     Of note, the employees ended peer-to-peer transvaginal ultrasounds shortly after the students filed the lawsuit, according to the 11th Circuit opinion.

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