CINCINNATI (CN) – Reversing a federal judge, a divided Sixth Circuit panel ruled Thursday that a Kentucky law requiring abortion providers to perform an ultrasound and make the fetal heartbeat audible to the patient is constitutional.
The 33-page majority opinion overturns a ruling by U.S. District Court Judge David J. Hale, who granted EMW Women’s Surgical Center’s motion for a permanent injunction to prevent enforcement of the legislation.
Passed in January 2017, House Bill 2, or the Ultrasound Informed Consent Act, requires women seeking an abortion to have an ultrasound at least 24 hours before the procedure.
Doctors who perform the ultrasound must also explain the images on the screen and allow the woman to hear the fetal heartbeat.
Patients are allowed to shut their eyes and ask for the volume of the heartbeat monitor to be turned down during the ultrasound.
The case was argued before a Sixth Circuit panel last July. U.S. Circuit Judge John K. Bush, an appointee of President Donald Trump, authored the court’s majority opinion Thursday.
Judge Bush relied heavily on the U.S. Supreme Court rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and National Institute of Family and Life Advocates v. Becerra (2018), and determined that because the disclosures required by HB 2 provide “truthful, non-misleading, and relevant information about an abortion,” the bill does not violate a doctor’s free speech rights.
“In both NIFLA and Casey,” the judge wrote, “the court clarified that the First Amendment has a limited role to play in allowing doctors to avoid making truthful mandated disclosures related to informed consent.”
Bush wrote that HB 2 “provides relevant information” that “gives a patient 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,” he continued. “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.”
EMW argued that the “negative emotional effect” of the forced ultrasound renders HB 2 unconstitutional, but Judge Bush disagreed, once again citing Casey.
“Although the Casey district court’s findings as to emotional effect was quoted by Planned Parenthood in its brief to the Supreme Court, the controlling opinion in Casey did not make any note of this finding in its analysis of the doctors’ First Amendment challenge,” he wrote.
Bush concluded, “Casey thus implicitly recognized that discomfort to the patient from the mandated disclosure of truthful, non-misleading, and relevant information does not make an informed-consent law invalid under the First Amendment.”
Senior U.S. Circuit Judge Alan E. Norris, a Ronald Reagan appointee, joined Bush in the majority, while U.S. Circuit Judge Bernice B. Donald, appointed by Barack Obama, authored a 20-page dissenting opinion.
Judge Donald wrote that HB 2 is subject to strict scrutiny because it “regulates the content of physician speech in a manner that is inconsistent with the practice of medicine.” Strict scrutiny requires that legislation passed to further a “compelling governmental interest” must be narrowly tailored to achieve that goal.
“H.B. 2 does not facilitate informed consent,” Judge Donald wrote. “Under the prevailing standard of care, informed consent requires respect for the patient’s autonomy and sensitivity to the patient’s condition. Physician discretion is vital, but H.B. 2 eviscerates physician discretion.”
Donald accused the majority of cherry-picking elements of the Casey decision to render HB 2 constitutional, and reminded her colleagues that the law at issue in Casey allowed for medical providers to exercise their judgment regarding whether the “truthful, non-misleading, and relevant information” would be disclosed to their patients.
In the conclusion of her opinion, Judge Donald chastised the majority and said she is “gravely concerned” with its decision, which she claims “opens the floodgates to states in this circuit to manipulate doctor-patient discourse solely for ideological reasons.”
“Benjamin Franklin warned that ‘[f]reedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins,’” she concluded. “H.B. 2 is a restriction on speech that has no basis in the practice of medicine. It should be subjected to heightened scrutiny and deemed unconstitutional, lest our constitution dissolve, and tyranny be erected on its ruins. I dissent!”
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