Federal Appeals Court Upholds Kentucky Law That Requires Ultrasound Before Abortion

April 5, 2019 Updated: April 5, 2019

A federal appeals court on April 4 upheld a Kentucky law requiring doctors to perform an ultrasound as well as show and describe the images to the patient before an abortion.

The judges from the 6th U.S. Circuit Court of Appeals ruled 2-1 (pdf) that the Kentucky law did not violate the first amendment rights of doctors, saying that there is nothing suspect about requiring a doctor, before performing an abortion, to give truthful, non-misleading factual information that is relevant to the patient’s decision-making.

The law, known as House Bill 2, requires a doctor to explain the ultrasound while letting the patient listen to the fetal heartbeat, but also allows a woman to look away from the ultrasound screen and ask the doctor to turn the sounds off. If the doctors do not comply, they could be fined and referred to the state’s medical licensing board.

EMW Women’s Surgical Center, who was represented by the American Civil Liberties Union (ACLU), challenged the law, arguing that it forces doctors to deliver a “government-mandated ideological message” to their patients in violation of their free speech rights, while causing harm to patients, according to their complaint (pdf).

The plaintiffs won in a lower court in 2017 and the law was blocked from going into effect. The state then appealed.

doctor does ultrasound
In an illustration photo, a doctor performs an ultrasound on a pregnant woman during her visit to a gynecologist. (Jennifer Jacobs/AFP/Getty Images)

In the appeals case, Judge John Bush, who was appointed by President Donald Trump, rejected the plaintiff’s argument that the ultrasounds are not necessary and said that the law requires doctors to provide relevant information to their patients.

“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 wrote in the majority opinion.

“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.”

In the dissent, Judge Bernice Bouie Donald, who was nominated by former President Barack Obama, agreed with the plaintiffs saying that the majority’s “decision opens the floodgates to states in this Circuit” to influence conversations between doctors and patients with ideological messages.

Mark Crutcher, president of Life Dynamics, told The Epoch Times that they were encouraged by the federal ruling but anticipate that the ACLU would take the case to the Supreme Court to get the decision overturned. Life Dynamics is a pro-life group based in Texas that has conducted several investigations on the abortion industry, such as the probe into the marketing of aborted baby parts.

“We also anticipate that the abortion lobby is going to go nuts over this because the last thing that they can afford to happen is for women to actually know what they’re doing before they do an abortion,” Crutcher said. “And that’s what sonograms and other things that show the humanity of the unborn do. It shows women what they’re actually doing.”

“And the abortion industry doesn’t want them finding that information out until after the money is in the bank,” he added.

The case comes during a national dialogue about abortion, where the federal government and many states are enacting or defending their enacted laws in court on the topic.

In a recent example, the state of Georgia passed the Living Infants Fairness and Equality Act, which would ban most abortions after six weeks from conception or when the heartbeat of the infant can be detected by the hospital. But the law faced many objections before it passed. A group of about 50 Hollywood actors signed a letter penned by activist and actress Alyssa Milano threatening to boycott the state if the bill went through.

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Similarly, House Republicans are trying to push a law that would protect infants who are born alive after attempted abortions. Their last effort to save the bill failed on April 3.

Moreover, a new anti-abortion movie “Unplanned,” which was recently released, faced alleged censorship. The film encountered some challenges getting into the box office due to its “R” rating for portraying abortion, and TV networks refused to sell advertising time for the movie. Then, a day after the premiere, its Twitter account was suspended—by mistake, according to Twitter.

“Unplanned” is about a former Planned Parenthood clinic director who turned against abortion after witnessing one on ultrasound.

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