FRANKFORT, Ky. — A Kentucky law requiring doctors to perform ultrasounds and show fetal images to patients prior to abortions is constitutional, a divided federal appeals court declared Thursday.
The ruling by a panel of the 6th US Circuit Court of Appeals was a victory for Kentucky’s Republican Gov. Matt Bevin, a staunch abortion opponent. The 2017 law was enacted soon after the GOP took complete control of Kentucky’s legislature. The statute drew an immediate challenge from the state’s last remaining abortion clinic, and a lower court judge struck it down.
The 2-1 ruling Thursday reversed the lower court. The appeals court panel’s majority opinion said the law doesn’t violate a doctor’s First Amendment rights.
Bevin’s office called it “a major pro-life legal victory” and said it was a historic day.
In a prepared statement, Bevin applauded the ruling and said, “I am grateful to be governor of a state that values every human life, and we are committed to continue our fight on behalf of the most vulnerable among us.”
Alexa Kolbi-Molinas, senior staff attorney with the American Civil Liberties Union’s Reproductive Freedom Project, called the ruling “not only extremely disappointing but also alarming.”
In an emailed statement, she said, “Regardless of how you feel about abortion, such extreme political interference in the doctor-patient relationship should be a cause of serious concern to anyone seeking medical care.”
Kentucky is one of many Republican-dominated states seeking to enact restrictions on abortion as conservatives take aim at the 1973 US Supreme Court decision that legalized abortion.
Energized by new conservatives on the Supreme Court, abortion opponents in multiple states hope to ignite new legal battles that could prompt the justices to revisit Roe v. Wade.
Kentucky’s law, known as House Bill 2, requires doctors to describe the ultrasound in detail while the pregnant woman listens to the fetal heartbeat. Women can avert their eyes and ask to have the sound of the heartbeat turned off. Doctors failing to comply face fines and can be referred to the state’s medical-licensing board.
“Because H.B. 2 … requires the disclosure of truthful, non-misleading, 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 John K. Bush wrote in the majority opinion.
ACLU attorneys, representing the abortion clinic in Louisville, contended the law violates doctors’ First Amendment rights by forcing them to deliver “ideological” messages to their patients, even when it’s against a patient’s wishes.
Bush, a Kentuckian appointed to the appeals court bench by President Donald Trump, also said the information provided by the ultrasound is “pertinent” to a pregnant woman’s decision-making.
“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,” he said. “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,” he added.
In a sharply worded dissent, Judge Bernice B. Donald said the law would require doctors “to violate their professional and ethical obligations.” The judge also called the law a “restriction on speech that has no basis in the practice of medicine.”
Donald said the majority decision “opens the floodgates to states in this circuit to manipulate doctor-patient discourse solely for ideological reasons.”
In Kentucky, the ultrasound law is just one front in a bitter legal feud over abortion.
In a related development, the ACLU is disagreeing with Kentucky’s Democratic attorney general over how to challenge a restrictive state policy as they both seek to ensure that the state’s only remaining clinic providing the procedure remains open.
In a legal brief supporting the EMW Women’s Surgical Center in Louisville, Attorney General Andy Beshear has urged a federal appeals court to rule against a regulation that imposes stricter standards on mandatory agreements between an abortion clinic and a hospital and ambulance service, but not against the law underlying the regulation.
That runs counter to arguments by the ACLU, which says unless the law is struck down, it will remain an ongoing threat to the clinic. The ACLU is urging the 6th US Circuit Court of Appeals to uphold a lower-court decision invalidating both the state law and the regulation.
