U.S. Supreme Court Allows Kentucky Law Forcing Patients Seeking Abortions To Undergo Ultrasounds To Stand

Supermajority Education Fund

December 17, 2019

On Dec. 9, the Supreme Court delivered bad news for people seeking abortions in Kentucky. The Court declined to review a challenge to the U.S. Court of Appeals for the 6th Circuit’s decision in EMW Women’s Surgical Center v. Meier. In doing so, the Court effectively upheld a Kentucky law that requires patients seeking abortions to witness an ultrasound before undergoing the procedure, and for doctors to make those patients listen to a fetal heartbeat. The Court rejected the case without comment or dissent by Justices.

The state argued that the law is part of an informed consent process and only requires that people considering an abortion “be provided with information that is truthful, non-misleading and relevant to their decision of whether to have an abortion.”

The American Civil Liberties Union (ACLU), which appealed to the Supreme Court, argued that the law was unconstitutional because it violated physicians’ First Amendment rights and actually violated a patient’s informed consent.

Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project, and lead attorney on the case told Supermajority News that informed consent allows patients to understand the risks and benefits of and alternatives to a procedure. Beyond that, she added, informed consent is shaped by what the patient decides is relevant to them.

Before the law was implemented, “doctors in Kentucky always offered to show patients their ultrasounds and offered to discuss the ultrasounds with them, if they had any questions or to explain anything,” but never forced this on a patient against her will, Kolbi-Molinas said. Doing so when the patient has already told her doctor that information is entirely unnecessary and irrelevant to her decision, she added, “violates the principles of informed consent which are supposed to respect the patient as autonomous human beings.”

Kolbi-Molinas added that it’s “incredibly disappointing” that Court allowed the law to stand.

“It is one of the most foundational principles of the First Amendment that the state cannot compel you to deliver its message with your own voice,” she said. “Here what you had was the state co-opting not only the ultrasound instrument but the exam room and the doctor’s voices to convey speech — and really an ideological message — to people seeking abortions.”

Three states require that abortion providers perform ultrasounds on people seeking abortions and also require providers to describe the image and show it to the patient, according to the Guttmacher Institute. Eleven states require that abortion providers perform the ultrasound on any patient seeking an abortion, and 9 of those 11 states need the patient to be allowed to view the image.

In March, the U.S. Supreme Court will review Louisiana abortion restrictions that require physicians who perform abortions to have admitting privileges to a nearby hospital for the case June Medical Services v. Gee. In 2016, before the Court had a conservative majority, the Court struck down a similar Texas law.