Ultrasounds Will Continue to Save Kentucky Babies

Dec 9, 2019

The U.S. Supreme Court said it would not hear a challenge to a Kentucky law requiring doctors to perform an ultrasound and show the image of the unborn baby to the pregnant woman as she listens to the fetal heartbeat, prior to her decision whether to have an abortion or choose life. 

The High Court’s action rejected a challenge to HB 2, known as “The Ultrasound Informed Consent Act,” which was challenged in EMW Women’s Surgical Center v. Meier by the only licensed abortion center in the state and three doctors who work there. 

The law originally passed in 2017 but was blocked by a lower court ruling that the requirements it placed on doctors violated their First Amendment rights. However, last April in a 2-1 ruling, the Sixth Circuit Court of Appeals led by Judge John Bush reversed and reinstated the law.

The legislation specifically requires doctors to describe an ultrasound although women can avert their eyes and ask to have the sound turned off. However, physicians who fail to attempt to show and describe the unborn baby to the patient could face fines of up to $250,000 and action against their medical license. 

The majority opinion, written by Judge Bush, a Trump appointee, and joined by Reagan appointee Alan Eugene Norris, said the Kentucky law did not step on doctors’ First Amendment free speech rights and that ultrasound images were “relevant” to the decision as to whether to terminate what he explicitly called “unborn life.” Bush said the legislation complied with the Supreme Court's seminal 1992 ruling in Planned Parenthood v. Casey, which established that states can enact laws necessary to obtain women's “informed consent” prior to an abortion, as long as those laws don't pose an “undue burden” on the abortion right.

Judge Bush wrote: “Does [the law] relate to a medical procedure? Yes — abortion. Are the mandated disclosures truthful and not misleading? Yes—no one argues that the heartbeat, sonogram, or its description is false or misleading. We have previously held that similar information conveys objective medical facts. ... That leaves the final question: Are the mandated disclosures relevant to the patient’s decision whether to abort unborn life? The Supreme Court’s abortion precedent answers this question for us.” 

“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,” Bush 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. It just means that it is pertinent to her decision-making.” 

A 2011 study by Quinnipiac University’s Mark Gius concluded that ultrasound laws had a very significant effect on women choosing life for their babies.  Gius quoted a director of an abortion center who noted that before ultrasounds were available about 40-50 percent of their clients decided to keep their babies. After the clinic started offering ultrasounds, this percentage increased to over 75 percent. 

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