Federal court upholds Kentucky’s ultrasound law

By Dave Andrusko

Editor’s note. This important decision came out just as NRL News Today was preparing to post for the day. We will have complete coverage on Friday.

A three judge panel of the 6th U.S. Circuit Court of Appeals today struck down a lower court ruling that held that Kentucky’s 2017 ultrasound law was unconstitutional.

The law requires an ultrasound must be shown prior to an abortion and that the abortionist describes what is seen on that ultrasound. The bills passed both houses in less than a week from the time it was introduced.

U.S. District Court Judge David Hale has made rejecting pro-life legislation a habit, so it was not surprising when he concluded H.B. 2 “impermissibly interferes with physicians’ First Amendment rights.”

Judge Bush noted, “No material facts are in dispute here, so this matter turns on a pure question of law: does H.B. 2 compel a doctor’s speech in violation of the First Amendment.”

The panel’s conclusion? “We hold that it does not violate a doctor’s right to free speech under the First Amendment.

Writing for the majority in a 2-1 decision, Judge Bush said the Kentucky law (whose title is “The 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].

“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,” wrote Judge Bush. “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.”

Judge Bush relied heavily on the 1992 Casey decision, whose reasoning

establishes that H.B. 2 does indeed legitimately facilitate informed consent and serve a medical purpose that does not harm the patient. To give the patient more information that is truthful, non-misleading, and relevant to a medical procedure is the epitome of ensuring informed consent. A sonogram and heartbeat auscultation of the unborn life inside the patient are disclosures directly pertinent to whether to obtain a procedure to abort that unborn life. If we were to hold that a State may not require such disclosures, we would essentially be concluding that women must be shielded and protected from this up-to-date medical information, that women are unable to or should not be required to process it. This conclusion is incompatible with the concept of personal choice under Casey. …Casey recognized that a State may require a physician to inform the patient of the impact on unborn life and that facts relating to this impact are among the disclosures that may be part of informed consent for an abortion.