Further reflections on Supreme Court’s decision not to review challenge to Kentucky’s informed consent ultrasound law

By Dave Andrusko

Yesterday we posted as quickly as we could news that the Supreme Court (without comment or noted dissent) had refused to hear an ACLU challenge to a 6th U.S. Circuit Court of Appeals decision upholding Kentucky’s Ultrasound Informed Consent Act.

Today we will take a deeper look at the decision and into the hysterical response of the Abortion Industry and its legion of media enablers.

So what is HB 2? It is a 2017 law, based on model NRLC legislation, passed by huge majorities in both houses. It requires abortionists to perform an ultrasound prior to an abortion, display and explain the images, play the audio of any fetal heartbeat, and offer women the opportunity to view the images.” Contrary to the misinformation spread by the abortion industry, the mother is not forced to view the images. She is free to view the image of her baby if she wants, or may divert her eyes away from the screen.

The 6th U.S. Circuit Court of Appeals negated the pro-abortion verdict of U.S. District Judge David Hale to issue a permanent injunction to prevent enforcement of the legislation, and the ACLU appealed the decision to the Supreme Court

There were bitter responses from those who expected the justices to accept the case and go on to reject the 6th Circuit’s decision to reverse and vacate Judge Hale’s injunction, beginning with the ACLU:

”By refusing to review the 6th Circuit’s ruling, the Supreme Court has rubber-stamped extreme political interference in the doctor-patient relationship,” said Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project. “This law is not only unconstitutional, but as leading medical experts and ethicists explained, deeply unethical.”

The ACLU represented EMW Women’s Surgical Center in Louisville, Kentucky’s lone remaining abortion clinic.

Pro-lifers, by contrast, saw the decision not to review as potentially good news with respect to other commonsense laws.

“Anti-abortion advocates, meanwhile, hope the court’s Dec. 9 decision means there are enough votes to preserve restrictions that have passed in other states,” Bloomberg News reported:

“I hope it will mean that laws such as this will be actually be judged according to the text of the Constitution,” said David N. O’Steen, executive director of National Right to Life.

“Where can you find in the Constitution that Kentucky cannot require that a woman be given the information available through ultrasound before undergoing abortion?” he asked.

It’s “quite reasonable” to require that women receive “ultrasound information about the human being that would be destroyed in the abortion,” he said.

Judge John Bush, in writing for the majority that upheld H.B. 3, carefully laid out the Supreme Court precedents that demonstrated Kentucky’s Ultrasound Informed Consent Act met constitutional muster. Courthouse News quoted extensively from the opinion:

HB 2 “provides relevant information” that “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,” he continued. “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.”

Kevin Koeninger perceptively wrote

Judge Bush relied heavily on the U.S. Supreme Court rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and National Institute of Family and Life Advocates v. Becerra (2018), and determined that because the disclosures required by HB 2 provide “truthful, non-misleading, and relevant information about an abortion,” the bill does not violate a doctor’s free speech rights.

“In both NIFLA and Casey,” the judge wrote, “the court clarified that the First Amendment has a limited role to play in allowing doctors to avoid making truthful mandated disclosures related to informed consent.”

To quote directly from Judge Bush’s conclusion

With due respect for the views of the Dissent, we adopt instead the position of the Fifth and Eighth Circuits on the First Amendment issue. Our responsibility here is to apply the level of scrutiny mandated by the plurality opinion in Casey and reaffirmed by a majority of the Supreme Court in NIFLA. Under Casey, “protecting the life of the unborn” is a “legitimate goal” that may be pursued by a State as part of informed consent. See Casey, 505 U.S. at 882–83. As a First Amendment matter, there is nothing suspect with a State’s requiring a doctor, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion.

Note the ending which no doubt left the ACLU and the entire abortion-defending/promoting complex grinding its teeth in frustration. To them it would ultimately be beside the point whether what the law is requiring the abortionist to see is “truthful and non-misleading,” although they would deny that’s what HB 2 was requiring.

Dressed up in concerns about the abortionist’s First Amendment freedom of speech rights, what drives them nuts is that truthful and non-misleading information may persuade a woman not to abort.

That’s never supposed to happen. The road from the initial panic in discovering she is unintentionally pregnant is suppose to lead the woman unencumbered down the road to the table at the abortion clinic. Nothing should “persuade a woman not to abort.”

This, by the way, plays into the anything-goes opposition to informing women that if they have started a “medication abortion” and changed their mind in mid-stream, there is good reason to believe the baby can be saved. (Over 900 babies have been saved, according to Pregnancy Help News.)

The bad guys have “won”: the woman has taken the first of two drugs and need only take the second at home and the baby will be gone, “like a miscarriage.” But she changes her mind—she makes a choice—and the nominally “pro-choice” abortion industry goes crazy because she made the “wrong” choice.

The Supreme Court’s decision not to intervene is a solid, important victory for unborn children and their mothers, and a defeat for Planned Parenthood and the ACLU for whom there can never, ever be enough abortions.