Justices Won't Review Challenge to Kentucky's Abortion Ultrasound Law
"By refusing to review the Sixth Circuit's ruling, the Supreme Court has rubber-stamped extreme political interference in the doctor-patient relationship," an ACLU lawyer said in a statement.
December 09, 2019 at 11:45 AM
4 minute read
The original version of this story was published on National Law Journal
The U.S. Supreme Court on Monday turned away a challenge to a Kentucky pre-abortion ultrasound law requiring physicians to provide sound and detailed images of the fetus to a woman opting for the procedure.
The justices denied review without comment in the case EMW Women's Surgical Center v. Meier, a challenge brought by the American Civil Liberties Union and O'Melveny & Myers on behalf of Kentucky's sole licensed abortion clinic.
"By refusing to review the Sixth Circuit's ruling, the Supreme Court has rubber-stamped extreme political interference in the doctor-patient relationship," Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project, said in a statement. "This law is not only unconstitutional, but as leading medical experts and ethicists explained, deeply unethical. We are extremely disappointed that the Supreme Court will allow this blatant violation of the First Amendment and fundamental medical ethics to stand."
The high court has one abortion-related case on its docket this term: June Medical Services v. Gee (and a related case, Gee v. June Medical Services). The Louisiana abortion clinic challenges state regulations requiring physicians who perform abortions to have hospital admitting privileges within 30 miles of the clinic. The case is set for argument March 4.
The U.S. Court of Appeals for the Sixth Circuit in April upheld the Kentucky law against a First Amendment challenge on the ground that the law was an ordinary informed consent provision.
"Because H.B. 2, like the statute in Casey, [Planned Parenthood of Southeastern Pennsylvania v. Casey] requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor's right to free speech under the First Amendment," Judge John Bush wrote for the panel.
But the ACLU's Kolbi-Molinas told the high court that the law "transforms this standard medical practice into a pure speech mandate: under the act, the physician must display and provide a graphic description of the ultrasound image (including, e.g., identifying all visible internal organs) during the ultrasound procedure. The physician must convey these specific words, images and sounds to the patient even if she does not want to see or hear them and even if she tries to physically resist them."
In a brief asking the justices to uphold the appeals court, S. Chad Meredith of the Office of the Governor, counsel to Health and Family Services Secretary Adam Meier, said the state General Assembly determined that "the best way of ensuring that a woman is fully informed about the nature and consequences of an abortion prior to opting for one is to require that she be shown an ultrasound image of her fetus and be provided a description of the fetus in her doctor's own words."
The Fifth Circuit upheld a similar Texas law as a constitutional informed consent provision. But Fourth Circuit in 2014 invalidated North Carolina's law as an unconstitutional compelled speech mandate.
"Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window," the Fourth Circuit said in its ruling.
The Supreme Court turned down review in the Texas and North Carolina cases.
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