Federal appeals court upholds Kentucky 'ultrasound' abortion law

A federal appeals panel has upheld a 2017 Kentucky law requiring doctors who perform abortions to first perform an ultrasound and attempt to show and describe the image to the patient, as well as play an audible heartbeat of the fetus.

In a 2-1 vote, with Judge John Bush writing for the majority, the 6th U.S. Circuit Court of Appeals on Thursday struck down a lower court ruling that said the law known as House Bill 2 was unconstitutional because it violates the free speech rights of physicians.

Bush, in his opinion, rejected the opponents' argument that forcing the physician to perform an ultrasound that may not be necessary and describe in detail the results to the patient is a violation of free speech rights.

"We hold that HB 2 provides relevant information," Bush wrote. "The information conveyed by an ultrasound image, its description and the audible beating fetal heart gives a patient a 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."

Bush, of Louisville, was appointed by President Donald Trump.

But in a blistering dissent, Judge Bernice Bouie Donald, a Tennessee native appointed to the appeals court by former President Barack Obama, said she found the reasoning to be deeply flawed and a setback for the freedom of physicians and their patients.

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"I am gravely concerned with the precedent the majority creates today," she said. "Its decision opens the floodgates to states in this Circuit to manipulate doctor-patient discourse solely for ideological reasons."

She added: "HB 2 is a restriction on speech that has no basis in the practice of medicine."

Joining Bush in the majority opinion was Senior Judge Alan E. Norris, appointed to the appeals court by former President Ronald Reagan.

Thursday's ruling is a victory for the administration of Gov. Matt Bevin, an anti-abortion Republican whose lawyers had aggressively defended the law struck down by U.S. District Judge David Hale the same year it was passed.

The 2017 ultrasound law was the beginning of a wave of anti-abortion legislation that began after Republicans seized control of the Kentucky House, a wave that continued through the 2019 legislative session with four major bills passed aimed at restricting or eliminating abortion in Kentucky. Two already have been blocked temporarily by a federal judge.

In a statement Thursday, Bevin declared the appeals court decision "a major, pro-life legal victory."

"Today is a historic day, as Kentucky continues to lead the charge in implementing strong pro-life protections for its citizens," Bevin said. "We applaud the decision by the Sixth Circuit, which affirms the commonsense notion that patients should be well equipped with relevant information before making important medical decisions. 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."

The American Civil Liberties Union, which had challenged the law on behalf of EMW Women's Surgical Center in Louisville, the state's only abortion provider, reacted with dismay.

“Today’s ruling is not only extremely disappointing, but also alarming,” said Alexa Kolbi-Molinas, senior staff attorney with the ACLU’s Reproductive Freedom Project. “Today’s ruling allows Kentucky politicians to continue enforcing a law with no medical basis whose sole purpose is to shame and coerce a woman who has decided to end her pregnancy. 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.”

The law permits a woman to look away from the image and cover her ears to avoid hearing the physician's description or the fetal heartbeat. But physicians who fail to attempt to show and describe the fetus to the patient could face fines of up to $250,000 and action against their medical license.

At a previous hearing on the case, lawyer M. Stephen Pitt, Bevin's general counsel, said the law was meant to protect women who might regret abortions or may not fully understand the procedure.

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It might prompt a woman to reconsider an abortion by thinking "Gosh, there's a living human being inside me. Maybe I don't want to do this," Pitt said. 

Hale, in his opinion, said that evidence shows it is EMW's practice, as well as the nationwide standard, "to offer women the opportunity" to see an ultrasound, hear its description or hear the fetal heartbeat, but it was not mandatory prior to HB 2.

"There is no evidence that physicians in Kentucky were denying women this information prior to the enactment of HB 2," he said. 

While supporters of HB 2 argued the law was meant to better inform women seeking abortions, Hale disagreed.

"HB 2 is intended to dissuade women from choosing abortion by forcing ultrasound images, detailed descriptions of the fetus and the sounds of the fetal heartbeat on them, against their will, at a time when they are most vulnerable," Hale wrote in a 30-page opinion.

Deborah Yetter: 502-582-4228; dyetter@courierjournal.com; Twitter: @d_yetter.