Kentucky Asks 6th Circuit to Restore Fetal-Heartbeat Law

CINCINNATI (CN) – An attorney for Kentucky argued Wednesday before a Sixth Circuit panel to have the state’s fetal-heartbeat abortion law reinstated, after a federal judge declared the law unconstitutional last year.

The Ultrasound Informed Consent Act, or House Bill 2, was passed and signed into law by Governor Matt Bevin in January 2017.

The short-lived law required a woman seeking an abortion to have an ultrasound performed at least 24 hours before the procedure.

The physician who performs the ultrasound must also explain the ultrasound images to the patient, and let her hear the fetal heartbeat.

EMW Women’s Surgical Center, the state’s only abortion provider, immediately challenged HB 2, and was granted a permanent injunction last September by U.S. District Judge David J. Hale.

In his opinion, Hale noted that the law caused distress to patients, and wrote that even though women were permitted to cover their ears during the heartbeat monitoring, “it is impossible for the patients to entirely drown out the sounds.”

In a Sixth Circuit hearing Wednesday morning, attorney Chad Meredith argued on behalf of the Kentucky Cabinet for Health and Family Services and told the three-judge panel that the mandatory disclosures mandated by HB 2 would ensure that a patient has all relevant information before choosing to have an abortion.

Meredith labeled the ultrasound and heartbeat procedures “truthful, non-misleading disclosures,” and said that the state implemented HB 2 because “not every patient fully understands … the abortion procedure.”

U.S. Circuit Judge Bernice Donald asked Meredith about language in the bill that allows a patient to turn down the volume on the heartbeat monitor or cover her ears during the physician’s explanation of the ultrasound.

“That is to respect the individual autonomy of each patient,” Meredith responded.

Judge Donald followed up by asking if HB 2 takes a choice away from the patient.

The state’s attorney said that ultrasounds are already being performed prior to abortions, and that the law “makes sure patients … see the information and are fully aware of what is going on.”

Attorney Alexa Kolby-Molinas argued on behalf of EMW Women’s Surgical Center and asked the panel of judges to affirm the lower court’s decision.

“Informed consent,” she said, “is not designed to reduce patients to sobbing… It is about patient autonomy.”

Kolby-Molinas admitted that it is “far and away the pervasive standard” for physicians to conduct ultrasounds before abortions, but told the panel that forcing a patient to view images of the ultrasound is not.

“In no area of medicine is showing pictures the only way of conveying information,” the attorney said.

U.S. Circuit Judge Alan Norris cited language in the bill that women “could” or “may” view the ultrasound images, and asked Kolby-Molinas why that is unreasonable.

“It does not resemble informed consent,” she said. “‘I’m gonna shove this [image] in your face right now and you can hide your face in your shirt’ … does not resemble informed consent.”

In his rebuttal, Meredith reiterated to the panel that “these disclosures are pure, scientific fact,” and that HB 2 is “the only way to guarantee the patient receives this vital information.”

U.S. Circuit Judge John Bush also sat on the panel.

No timetable has been set for the court’s decision.

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