Appeals court upholds Kentucky ultrasound abortion law

Cardiogram ultrasound baby pregnant Credit Aykut Erdogdu Shutterstock CNA Aykut Erdogdu/Shutterstock.

A federal appeals court has upheld a Kentucky law requiring that abortion doctors show ultrasound images of the baby to the mother, describe the images on the screen, and play the sound of the fetus' heartbeat.

The Catholic bishops of Kentucky praised the ruling in an April 4 statement.

"Given the devastating effect that abortion has on both the unborn child and often the mother who later regrets the abortion, it is vitally important that women have all of the information they need to make a decision that is as fully informed as possible," they said.

"The statute in question was passed to ensure women have access to unbiased and medically sound information about abortion procedures and the unborn child in the womb before making an irreversible decision to have an abortion. The court held that this is a legitimate interest of the Commonwealth and that a doctor does not have a right to withhold such information."

House Bill 2, also known as the "The Ultrasound Informed Consent Act," originally passed in 2017, but had been blocked by a lower court ruling that found the requirements it placed on doctors violated their First Amendment rights.

The U.S. Court of Appeals for the Sixth Circuit issued its ruling Thursday and struck down the District Court's decision.

The majority found that House Bill 2 "provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life," and requiring disclosure of that kind of information is "part of the state's reasonable regulation of medical practice."

"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," Circuit Judge John Bush wrote in the majority opinion.

"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 continued.

"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."

Though the doctor is required to display images of the ultrasound and simultaneously describe the image to the patient, the patient is not required to look at the image or listen to the description. The doctor must also play the sound of the fetal heartbeat for the patient but may turn off the volume at the patient's request.

Doctors who fail to comply with the new regulations could face a $250,000 fine and be referred to Kentucky's medical licensing board.

Circuit Judge Bernice Bouie Donald dissented from the majority opinion, arguing that the information required under HB 2 has "no basis in the practice of medicine" and "does not permit physician discretion," and it would, in her view, "require physicians to harm their patients with 'no medical purpose.'"

In their statement, the Kentucky bishops voiced gratitude for the ruling.

"[W]e also reiterate our appreciation to Kentucky policy makers for making the protection of children and women in vulnerable situations a top priority," they said. "We look forward to continuing to work with our elected officials to ensure access to information and also to necessary protections in the workplace, health care, education, and all that Kentuckians need to thrive and achieve their God-given potential."

The Kentucky legislature passed two pro-life bills last month which are already facing legal challenges from abortion groups. The pair of bills would ban abortion after a fetal heartbeat is detected and for discriminatory reasons such as the race or sex of the child.

District Judge David Hale temporarily blocked the "heartbeat" law in March, saying it may be unconstitutional.

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