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Tipsheet

Federal Appeals Court Upholds Kentucky Law Requiring an Ultrasound Before an Abortion

AP Photo/Teresa Crawford

A federal appeals court upheld a Kentucky law Thursday requiring doctors to conduct an ultrasound, show patients the images, and have women hear the fetal heartbeat at least 24 hours prior to an abortion.

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In a 2-1 ruling, the Sixth Circuit Court of Appeals backed the “Ultrasound Informed Consent Act” which was passed in 2017 and was immediately challenged by the state’s only abortion clinic.

The majority opinion was written by Trump appointee Judge John Bush who cited the U.S. Supreme Court’s rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey and, more recently, National Institute of Family and Life Advocates v. Becerra.

He argued that the information required by the Kentucky legislation was “truthful, non-misleading, and relevant information about an abortion,” and did not violate a doctor’s free speech rights as the abortion clinic claimed.

“In both NIFLA and Casey,” he 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.” 

“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 added. “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.”

Obama-appointed Judge Bernice Donald argued in her dissent that the bill “regulates the content of physician speech in a manner that is inconsistent with the practice of medicine.”

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“H.B. 2 does not facilitate informed consent,” she 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.”

Kentucky Gov. Matt Bevin (R) declared the ruling "a major, pro-life legal victory," in a statement Thursday.

"Today is a historic day, as Kentucky continues to lead the charge in implementing strong pro-life protections for its citizens," he said. "We applaud the decision by the Sixth Circuit, which affirms the commonsense notion that patients should be well equipped with relevant information before making important medical decisions. I am grateful to be governor of a state that values every human life, and we are committed to continue our fight on behalf of the most vulnerable among us."

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