Supreme Court will not review decision upholding Kentucky’s informed consent ultrasound law

By Dave Andrusko

Without comment or noted dissent, the Supreme Court this morning refused to hear an ACLU challenge to a 6th U.S. Circuit Court of Appeals decision that upheld Kentucky’s Ultrasound Informed Consent Act.

The 2017 law, based on an NRLC model, 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.” The woman does not need to view the images.

“This is the best possible news defenders of life in the womb could receive!,” stated Kentucky Right to Life Association President Diana Maldonado. It is bad news for EMW Abortion facility and for Louisville Planned Parenthood, in spite of the money and political power on their side.”

Ironically, the decision not to intervene came on the last day of Kentucky Gov. Matt Bevin’s term. Bevin had actively promoted and defended a multitude of pro-life measures.

The law was struck down by U.S. District Judge David Hale on September 27, 2017. Both branches of the Kentucky legislature passed HB 2 by overwhelming margins.

The state of Kentucky argued HB 2 “does nothing more than require that women who are considering an abortion be provided with information that is truthful, non-misleading and relevant to their decision of whether to have an abortion.”

Judge Hale disagreed. In his 30 page decision, Hale agreed with the ACLU that the law compels a doctor’s speech in violation of the First Amendment.

Not so, said the three judge panel. Writing for the majority, Judge Bush concluded the Ultrasound Informed Consent Act “provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life.”

Under Roe v. Wade, 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

[W]e 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.