Supreme Court Won't Touch a Kentucky Law That Forces Abortion Doctors to Show Patients Their Ultrasounds

"The physician has to keep talking to her, showing her images and describing them, even as she tries to close her eyes and cover her ears."
December 9, 2019, 3:42pm
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The Supreme Court will leave in place a Kentucky law requiring doctors who perform abortions to show a patient an ultrasound of the fetus and narrate what’s going on, even if the patient doesn’t want to listen.

Kentucky’s only abortion clinic, EMW Women’s Surgical Center, had challenged the law alongside three of its doctors, who said it violates their free speech rights. But on Friday, the justices rejected taking up that challenge without comment.

The Kentucky measure, which also forces doctors to make patients listen to so-called “fetal heart tones” during the ultrasound, was signed into law in January 2017. Supporters of the law argue it ensures that people who undergo abortions can give “informed consent” to the procedure, but the doctors fighting against it say that’s not true.

“As a result of this law, while the patient is half-naked on the exam table with her feet in stirrups, usually with an ultrasound probe inside her vagina, the physician has to keep talking to her, showing her images and describing them, even as she tries to close her eyes and cover her ears to avoid the speech,” their petition to the Supreme Court reads. “A law that requires a physician to keep speaking even though her words do not inform anyone of anything is not an informed consent provision.”

Louisiana, Texas, and Wisconsin have also passed laws that require doctors to describe and display ultrasound images to abortion patients, according to the Guttmacher Institute, a nonprofit which supports abortion rights. North Carolina and Oklahoma have similar laws on the books, though court challenges have blocked them from going into effect.

In fact, in 2015, the Supreme Court declined to review North Carolina’s ultrasound law — but in the case, the Fourth Circuit had struck down the law as unconstitutional, so the justices’ denial helped keep it from going into effect.

Since then, though, the balance of the court has shifted decidedly in favor of conservatives. Neil Gorsuch has replaced Antonin Scalia and Brett Kavanaugh took over swing justice Anthony Kennedy’s seat.

The Sixth Circuit had voted to uphold Kentucky’s law, but it was kept from going into effect pending the abortion providers’ appeal to the Supreme Court.

“The Supreme Court has rubber-stamped extreme political interference in the doctor-patient relationship,” Alexa Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project, said in a statement Monday. “We are extremely disappointed that the Supreme Court will allow this blatant violation of the First Amendment and fundamental medical ethics to stand.”

Monday’s news likely isn’t a good sign for abortion’s future at the Supreme Court. In March, the Supreme Court will hear arguments in its first abortion-related case since Gorsuch and Kavanaugh were confirmed to the bench. That case, June Medical Services v. Gee, deals with a Louisiana law that mandates that doctors who perform abortions have admitting privileges at a nearby hospital.

If that law is enforced, it would shut down every clinic in Louisiana except one, lawyers say.

“It just seems that the supreme court should be siding with patients and not misinformation,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. “But if they voted to not accept the case, then they're allowing this restriction to stand. And that worrying.”

Cover image: Hero Images via Getty Images