A federal appeals court heard arguments on Wednesday over Kentucky’s ultrasound abortion requirement, which was blocked by a lower court last fall.
The law requires doctors to show and describe images of the fetal ultrasound to a patient before conducting an abortion, as well as play audio of the fetal heartbeat.
The American Civil Liberties Union, which is challenging the law on behalf of Kentucky’s lone abortion facility, argues that it violates free speech rights by requiring doctors to describe the ultrasound even if patients demand that they not.
“Anybody who’s ever had a medical procedure performed knows what informed consent looks like,” said ACLU attorney Alexa Kolbi-Molinas.
“And it doesn’t look like your doctor forcing words and images on you while you are sobbing and hiding your head in your shirt, which is exactly the sort of things that happened before the district court blocked this law and stopped it from being in effect.”
The law includes language saying that it doesn’t prevent a patient from “averting her eyes from the ultrasound images or requesting the volume of the heartbeat be reduced or turned off if the heartbeat is audible.”
The Kentucky legislature passed the ultrasound abortion law in early 2017. It was struck down by a lower court last fall, citing concerns over the psychological harm it could cause.
But Gov. Matt Bevin’s administration appealed the decision, which was heard by a three-judge panel of 6th U.S. Circuit Court of Appeals on Wednesday.
Chad Meredith, Bevin’s deputy general counsel, argued the law makes sure that women seeking abortions are more fully informed because “not every patient understands the consequences of the abortion procedure.”
“This is right in the heartland of what states are permitted to do to regulate medicine,” Meredith said. “There are a number of patients who don’t understand the nature of the fetus within them.”
Bevin’s attorneys submitted affidavits from women who said they had regretted getting abortions and would have liked to have gotten more information before receiving the procedure.
Wednesday's Court Proceedings
Judge Bernice Donald questioned whether the state has the power to force doctors to convey information even if patients don’t want to hear it.
“What you’re talking about is imposing the state’s will on the patient and interfering with the doctor-patient relationship,” Donald said.
Judge Alan Norris argued that requiring doctors to describe the ultrasound and play the fetal heartbeat was a reasonable regulation.
“What’s unreasonable about that?” Norris said. “This loud beating heart is horribly offensive, is that it?”
The panel also includes Judge John Bush, a Louisville lawyer appointed to the court by President Donald Trump last year.
Bush expressed skepticism with the ACLU's arguments, saying that the law allows doctors to say whatever they want.
"As long as they provide what the statute says they're supposed to say, they can say 'I recommend you have an abortion,'" Bush said.
Bush garnered controversy during his confirmation process last year because of blog posts he authored discussing his opposition to same-sex marriage, questioning former President Obama’s citizenship and comparing abortion to slavery.
A ruling on the case could take several months.
Similar laws have passed in 14 states, according to theGuttmacher Institute, a nonprofit that gathers data about reproductive health. Courts have blocked the policies in two states besides Kentucky.
The law was one of the first policies passed in 2017 when Republicans took control of the legislature for the first time in state history.
That year, the legislature also passed a law banning abortions after the 20th week in pregnancy and a policy putting Planned Parenthood organizations in the state at the back of the line for federal funding.
This year, the legislature passed a law banning a common second trimester procedure known as “dilation and evacuation” after the 11th week of pregnancy. A federal judge temporarily blocked that law from going into effect.
Gov. Bevin has also been locked in a battle with the state’s only abortion provider, arguing that the facility doesn’t have proper transfer agreements with a hospital and an ambulance service in case of emergencies.
