The Ultrasound Informed Consent Act, or House Bill 2, was signed into law by Kentucky Gov. Matt Bevin in January, and was immediately challenged by EMW Women’s Surgical Center, the state’s only abortion provider, which is represented by the American Civil Liberties Union of Kentucky.
The law requires that at least 24 hours before an abortion, a woman seeking the procedure must have an ultrasound, be given an explanation of the ultrasound images, be shown the ultrasound images, and have her physician auscultate, or make audible, the fetal heartbeat.
While a woman can choose to look away from the ultrasound images or request that the volume of the heartbeat be reduced, U.S. District Judge David J. Hale ruled Wednesday that the law still violates abortion providers’ free-speech rights.
Kentucky argued that the law is subject to rational-basis review, as it seeks only to “regulate the practice of medicine,” and urged the court to adopt a finding similar to that in Eubanks v. Schmidt, a decision from 2000.
A federal judge in Western Kentucky ruled in Eubanks that the state’s Abortion Informed Consent Statute – which requires abortion providers to distribute fetal-development pamphlets to patients seeking abortions at their own expense – was constitutional.
On the other side, the abortion providers argued HB 2 “compels ideological speech” and is therefore subject to intermediate scrutiny. Judge Hale agreed.
“In the context of abortion, laws like H.B. 2 are designed to convey the state’s ideological, anti-abortion message,” he wrote. “Such laws go well beyond the basic disclosures necessary for informed consent to a medical procedure.”
The 30-page ruling continues, “H.B. 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 contrasted H.B. 2 against the law upheld in Eubanks, and wrote that while the pamphlets “‘provide information from which a woman might naturally select the choice favored by the legislature’ … H.B. 2 is designed to persuade a woman to choose the option favored by the legislature by imposing certain information, imagery, and sounds upon her in a vulnerable state and time.”
Judge Hale cited testimony from a March evidentiary hearing in his opinion, which found that the clinic’s compliance with H.B. 2 had caused its patients distress.
“Although [patients] may attempt to avoid listening to the fetal heartbeat and ultrasound description,” he wrote, “it is impossible for patients to entirely drown out the sounds. During the process mandated by H.B. 2, patients are ‘very upset,’ ‘crying,’ and even ‘sobbing.’”
Kentucky argued that H.B. 2 furthers several legitimate governmental interests and allows women to make a fully informed decision regarding medical treatment options, but Judge Hale disagreed.
“It is impossible to say that H.B. 2 is intended to better inform women considering an abortion when it also permits women to cover their eyes and ears in order to avoid receiving the information the Commonwealth intends for them to receive,” Hale wrote.
The judge also called the state’s affidavits from women who chose to have abortions and later regretted their decisions “irrelevant,” as the procedures were done before the passage of any of the state’s informed-consent laws.
In his conclusion, Hale cited testimony from the clinic’s experts, who explained that ultrasounds and fetal-heartbeat monitoring are always available at the request of a patient, and that “in the nearly three months since H.B. 2 took effect, not a single EMW patient decided against an abortion as a result of viewing an ultrasound image or hearing an ultrasound description and the fetal heartbeat.”
William Sharp, legal director of the ACLU of Kentucky, applauded Hale’s ruling in a statement.
“This is a vindication of the rights of Kentuckians and their physicians, and it marks a significant victory against the General Assembly’s overreach into the area of reproductive healthcare,” Sharp said.