Laws Under Fire: Ultrasound Bill

APPEAL WON! 4-4-2019 | APPEAL CHALLENGED! 5-20-2019 | REHEARING DENIED | Victory!

Ultrasound Law

Will of the People

Background

An Ultrasound Bill, HB 2, passed both the House and Senate during the 2017 Kentucky Legislative Session.

Even though the bill passed and we celebrated its signing with Governor Bevin at the Rally for Life, our joy was short-lived.

The new law was challenged nearly immediately by the ACLU and the EMW clinic. Judge David Hale heard arguments from the opponents and from attorneys for the State of Kentucky, and overturned the law in late September 2017. Pro-life Governor Matt Bevin promised to appeal the decision.

On July 25 a panel of judges from the US 6th Circuit Court of Appeals met in Cincinnati to hear arguments in a lawsuit filed by the ACLU. Judges Alan Norris, Bernice Donald, and John Bush served on the panel. Hear the proceedings of the hearing at the Appeals Court - Audio file online

Deputy General Counsel Chad Meredith argued the case for HB 2, which simply stipulates that the state of Kentucky has the right to regulate the use of an ultrasound for a woman before an abortion is performed. This bill requires the physician to display and explain the ultrasound to the patient. For the sake of the full disclosure of information, the doctor is also required to make audible to the patient the heartbeat of her unborn child. The woman can elect to avert her eyes or ask for the audio to be muted. The Appeal succeeded!

“The Ultrasound Informed Consent Act” (HB2) is summarized in Judge John K. Bush’s Opinion:

H.B. 2 directs a doctor, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and explain, in the doctor’s own words, what is being depicted by the images—for example, pointing out organs and whether the patient is pregnant with twins. KRS § 311.727. There is no requirement that the patient view the images or listen to the doctor’s description. The doctor also must auscultate the fetal heartbeat but may turn off the volume of the auscultation if the patient so requests. Id. Failure to comply with these requirements can result in the doctor being fined and referred to Kentucky’s medical-licensing board. KRS § 311.990(34). But H.B. 2 does not penalize a doctor if the patient requested that the heartbeat sound be turned off or chose not to look at the ultrasound images. KRS § 311.727(3). Nor does H.B. 2 penalize a doctor if she or he exercises discretion to advise a patient that she need not listen to or view the disclosures, or if the doctor makes any other statement, including advising the patient to have an abortion. Finally, a doctor need not make any disclosure from H.B. 2 at all if an abortion is medically necessary or in the case of a medical emergency. KRS § 311.727(5).

Many good outcomes were enabled by this Court Decision to uphold HB 2:

It shows respect for the legislators who passed the Ultrasound Law. Yes, they have a legitimate duty to protect unborn life.
A number of common-sense reasons for accepting this law were given in Judge Bush’s Opinion, to paraphrase:
- Informed consent is common in the medical profession and not excluded in the Roe decision but rather indicated by Roe’s acknowledgement that The state has a legitimate interest in protecting the life of unborn children.
- The First Amendment rights of the doctor not to “speak” are not relevant since it is common in medical practice to describe aspects of a condition or procedure that a patient needs to be aware of. Thus, the inclusion of the 14th amendment in arguing the case as the right of Free Speech for all persons does not apply. (This was where the Dissenting Opinion by Judge Bernice Donald was focused. The arguments are complex and can be read in full here.)
- As was argued in a related case (Gonzales v. Carhart), the woman must live with her decision, and since it is an established fact that some women come to regret their abortion, experiencing depression and more, the importance of informed consent is incumbent upon the provider.
  These clear reasons may serve to guide other suits and appeals.
As pointed out by Gov. Bevin, the ruling rejects “the notion that the Kentucky legislature must follow what pro-abortion groups like the American College of Obstetricians and Gynecologists (ACOG) and the National Abortion Federation (NAF) say.” Unfortunately, our nation’s medical associations have fallen or are falling under the spell of the culture of death. (See this post for an example.)
It saves our state a lot of money. The Plaintiffs must pay the legal tab which is significant. How much? Let’s be crass and ask. Please let us know if you know. We’re sure it’s in the hundreds of thousands.

We congratulate the Bevin Legal Team that achieved the victory.

Just when we pro-lifers are at our collective wits’ end with the conscience of a nation that seems to agree, “Let the devil take the hindmost,” we have been given a gift. It seems to be a down payment on future work to overturn Roe. It’s a much needed deposit.

UPDATE on MAY 22, 2019

Disappointing News: The Appeal victory has been Appealed. Read more.

UPDATE on JUNE 28, 2019

Great News: The EMW/ACLU petition for the full Appeals Court to re-hear the case was denied. Read more. Needless to say, the case could be appealed to the Supreme Court, but right now, we are again celebrating!

UPDATE on NOVEMBER 21, 2019

News: The EMW/ACLU asked SCOTUS to require the Appeals Court to re-hear the case. Read more. Kentucky has countered in a new brief asking that SCOTUS deny the request.

UPDATE on DECEMBER 9, 2019

News: The Supreme Court denied the EMW/ACLU request for a re-hearing at the Appellate level. Read more. This was a great victory for Gov. Bevin on the final day of his adminnistration.