Federal Court Allows Kentucky Forced Narrated Ultrasound Law to Stand

LOUISVILLE, Ky. — A divided federal appeals court today upheld a Kentucky law that requires doctors to display and describe the details of an ultrasound to a woman, as well as make the fetal heartbeat audible, prior to providing an abortion procedure — even if the woman is closing her eyes or asking the doctor to stop and even when the doctor believes it would be harmful to the patient.

“Today’s ruling is not only extremely disappointing, but also alarming,” said Alexa Kolbi-Molinas, senior staff attorney with the ACLU’s Reproductive Freedom Project. “Already, too many women across the country are delayed or outright blocked from getting abortion care because of medically unnecessary restrictions on abortion. Today’s ruling allows Kentucky politicians to continue enforcing a law with no medical basis whose sole purpose is to shame and coerce a woman who has decided to end her pregnancy. Regardless of how you feel about abortion, such extreme political interference in the doctor-patient relationship should be a cause of serious concern to anyone seeking medical care.”

Today’s decision sparked an impassioned dissent from Judge Bernice Bouie Donald, who recognized that the undisputed evidence Plaintiffs introduced at trial “demonstrate[d] that H.B. 2 would require physicians to violate their professional and ethical obligations … [and] that H.B. 2’s one-size-fits-all approach would cause them to harm their patients in direct violation of the prevailing standard of care.” As Judge Donald explained, the majority “decision opens the floodgates to states in this Circuit to manipulate doctor-patient discourse solely for ideological reasons.” She wrote, “The Commonwealth has co-opted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician.”

“This law allows the Commonwealth of Kentucky to insert itself into the exam room, making doctors force information and sounds on their patients, even while those patients are crying, plugging their ears, or hiding their heads in their shirts,” said Heather Gatnarek, staff attorney at the ACLU of Kentucky. “This law was passed by politicians, not doctors, and is not based on scientific evidence or supported by any medical literature.”

A federal-district court struck down the law in September 2017 after the ACLU successfully argued in federal district court that the law unconstitutionally comes between a woman and her doctor by requiring that a doctor provide specific information about the fetus, even when the doctor believes it would be harmful to the patient. The Commonwealth of Kentucky appealed that ruling to the Sixth Circuit. The American Medical Association, the American College of Obstetricians and Gynecologists, and the American Public Health Association all filed amicus/friend-of-the-court briefs in opposition to the law, explaining that treating patients in this manner serves no medical purpose.

This law is part of a concerted effort by the Commonwealth of Kentucky to impermissibly interfere with a woman’s abortion care, including by enacting a ban on virtually all abortions, as well as attempting to shut down the last remaining clinic in the state.

The plaintiffs in the case are represented by the ACLU, the ACLU of Kentucky, and the law firm of O’Melveny & Myers.

More about this case can be found here: https://www.aclu.org/cases/emw-womens-surgical-center-v-beshear