6th circuit panel upholds Kentucky’s ultrasound law

By Dave Andrusko

Editor’s note. We wrote an abbreviated story yesterday, because the court’s decision came later in the day.

U.S. District Judge David Hale

On September 27, 2017, U.S. District Court Judge David Hale struck down HB 2, Kentucky’s ultrasound law which both houses of the legislature had passed overwhelming earlier in the year. The law requires that an ultrasound must be shown prior to an abortion and that the abortionist describes what is seen on that ultrasound.

In his ruling, Judge Hale said H.B. 2 violates a doctor’s First Amendment rights and fails to better inform women because it allows them to cover their eyes to avoid seeing an image of the fetus.

What odd reasoning. Allowing the woman to avert her eyes means HB2 “fails to inform women.” If H.B. 2 had required women to look at the ultrasound image, no doubt Judge Hale would have criticized that, too.

Yesterday, on a vote of 2-1, a three judge panel of the 6th U.S. Circuit Court of Appeals overturned Judge Hale’s decision.

Writing for the majority, Judge John Bush said the question was straightforward: “does H.B. 2 compel a doctor’s speech in violation of the First Amendment.” The panel’s conclusion was that it “does not violate a doctor’s right to free speech under the First Amendment.”

In her dissent Judge Bernice Bouie Donald agreed that it was a First Amendment case (as opposed to an issue of “whether the statute unduly burdens a woman’s right to choose”), but argued the majority came to an incorrect conclusion.

Her fiery conclusion was “The Commonwealth has coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician.”

Not so, said Judge Bush. Kentucky ‘s Ultrasound Informed Consent Act “provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life” [http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0062p-06.pdf].

Under Roe v. Wade, 410 a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient. This appeal principally concerns whether those requirements violate the doctor’s First Amendment rights. …

Because H.B. 2, like the statute in Casey [the 1992 Supreme Court case], requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment.

Judge Bush added

we hold that H.B. 2 provides relevant information. The information conveyed by an ultrasound image, its description, and the audible beating fetal heart gives a patient greater knowledge of the unborn life inside her. This also inherently provides the patient with more knowledge about the effect of an abortion procedure: it shows her what, or whom, she is consenting to terminate. That this information might persuade a woman to change her mind does not render it suspect under the First Amendment. It just means that it is pertinent to her decision-making.

HB 2 was one of two new pro-life bills passed by the Kentucky legislature in January 2017. The other was the Pain-Capable Unborn Child Protection Act (SB5) which then-PPFA President Cecile Richards described as “shameful.” The bills passed both houses in less than a week from the time they were introduced.

Passage of SB5 raised to 16 the number of states with laws (15 in effect) that forbid performing abortions on unborn babies 20 weeks or older. Those include Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin.

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