News and Commentary

Appeals Court Upholds Kentucky Law Requiring Doctors To Play Sound Of Baby’s Heartbeat Before Abortion

In a tremendous victory for the pro-life movement and unborn children, on Thursday judges in the Sixth Circuit Court of Appeals upheld a Kentucky law that requires doctors to play the sound of the fetal heartbeat and show and describe the ultrasound of the unborn child for the prospective mother before she undergoes an abortion. The Court ruled that Kentucky’s “Ultrasound Informed Consent Act” doesn’t violate the Constitution by compelling doctors to play the sound of the heartbeat and the ultrasound before their patients.

The ruling came in a split decision; Judge John Bush, writing for the majority, stated of the bill, H.B. 2:

H.B. 2 provides relevant information. The information conveyed by an ultrasound image, its description, and the audible beating fetal heart 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. 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.

The bill had been challenged by EMW Women’s Surgical Center, P.S.C. and its associated physicians under the First Amendment; EMW won its suit against the defendants, Kentucky Attorney General Andrew G Beshear and Kentucky Secretary of the Cabinet of Health and Family Services Adam Meier, in the district court, which, as Bush wrote, “applied heightened scrutiny to invalidate the statute and permanently enjoin enforcement of H.B. 2.” Bush continued, “Our court then denied the motion of then-Defendant-Appellant Vickie Glisson, who was Secretary of the Cabinet for Health and Family Services, to stay the injunction pending appeal.”

Bush explained, “In NIFLA the Court clarified that no heightened First Amendment scrutiny should apply to informed-consent statutes like the abortion-informed-consent statute at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey. … Thus, even though an abortion-informed-consent law compels a doctor’s disclosure of certain information, it should be upheld so long as the disclosure is truthful, non-misleading, and relevant to an abortion. … Because H.B. 2, like the statute in Casey, requires the disclosure of truthful, non- misleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment. We also hold that the Attorney General, Defendant-Appellant Andrew Beshear, is not a proper party to this case. “

Bush noted, “There is no requirement that the patient view the images or listen to the doctor’s description. The doctor also must auscultate the fetal heartbeat but may turn off the volume of the auscultation if the patient so requests. … But H.B. 2 does not penalize a doctor if the patient requested that the heartbeat sound be turned off or chose not to look at the ultrasound images.”

Bush noted the ubiquity of ultrasounds nowadays:

The prevalence of ultrasound-use in pregnancy also underscores the relevance of the mandated sonogram of H.B. 2 to a woman’s abortion decision. Ultrasounds are ubiquitous procedures that are a part of every pregnancy and, EMW concedes, every abortion. … The physical invasiveness of the sonogram, as noted by the Dissent … therefore, is no reason to characterize the procedure as an unwarranted invasion of bodily integrity; indeed, the Dissent cites authority “finding that up to 98% of U.S. abortion facilities use an ultrasound to date the pregnancy,”

Bush also noted that times have changed since Roe v. Wade was decided:

Sonograms of unborn life were uncommon when Roe was decided. Writing for the Roe Court, Justice Blackmun was limited by words on paper—sometimes using medieval descriptions such as “quickening” or “infused with a ‘soul’ or ‘animated’”—to explain when life had been understood to come into being. … But in the Cyber Age, words tell only part of a story. For today’s Posterity, the Gen-X, Millennial, and Gen-Z generations, whose first picture of themselves commonly comes from a sonogram, and who increasingly turn to photos and videos to share information one can hardly dispute the relevance of sonogram images for twenty-first-century informed consent.

Bush concluded:

In sum, H.B. 2, like the Pennsylvania statute in Casey, provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life. Therefore, although the statute requires doctors to disclose certain truthful and non-misleading information relevant to the abortion procedure, it does not violate their First Amendment rights because the required disclosures are incidental to the Commonwealth’s regulation of doctors’ professional conduct.