What just happened?
On Monday, the U.S. Supreme Court left in place a Kentucky law that requires abortionists to perform ultrasounds and show fetal images to patients before they can perform abortions.
The law had been upheld by the Sixth Circuit Court of Appeals, and the high court declined, without comment, to hear an appeal.
Why was the Supreme Court asked to review the case?
The American Civil Liberties Union (ACLU) challenged the law on behalf of Kentucky’s lone abortion clinic, EMW Women’s Surgical Center in Louisville. The law was initially struck down in a lower court, but earlier this year the Sixth U.S. Circuit Court of Appeals upheld the constitutionality of the law. The majority opinion said the law doesn’t violate a doctor’s First Amendment rights, and that ultrasounds provide “relevant information” related to the abortion.
What does the Kentucky law require?
In January 2017, Kentucky implemented a law making it a requirement that prior to an abortion a physician or qualified technician must perform and explain both an obstetric ultrasound and also ascultation of fetal heartbeat (i.e., an examination by listening for sounds made by internal organs of the fetus).
As part of this informed consent process, the woman must be provided with a simultaneous explanation of what the ultrasound is depicting, which shall include the presence and location of the unborn child within the uterus and the number of unborn children depicted. Along with the ultrasound images, the woman must be allowed to hear the heartbeat if the heartbeat is audible.
Nothing in the law prevents the pregnant woman from averting her eyes from the ultrasound images or requesting the volume of the heartbeat be reduced or turned off. But she must sign a statement saying that she was provided the information and has viewed the ultrasound images, listened to the heartbeat if the heartbeat is audible, or declined to do so. (This requirement does not apply in the case of a medical emergency or medical necessity.)
Is the Kentucky law constitutional?
Federal appeals courts are divided over whether “display and describe” laws like Kentucky’s are constitutional. But the Supreme Court has previously ruled that informed consent laws applicable to abortion can be constitutional.
In the late 1980s, the Pennsylvania legislature added several provisions to their laws regulating abortions, including requiring informed consent. That law was challenged, and the case, Planned Parenthood v. Casey, was taken up by the Supreme Court in 1992. In their decision, the court uphold the legality of abortion, but included a new standard to determine whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Despite the protest of the ACLU, the Kentucky law imposes no “undue burden” on pregnant women seeking an abortion. As the Sixth Circuit noted in their ruling, the law “requires the disclosure of truthful, non-misleading and relevant information about an abortion” and so “does not violate a doctor’s right to free speech under the First Amendment.”
In the brief asking the Supreme Court to deny the appeal, the state of Kentucky noted that the rationale behind the law is “the common sense notion that nothing can better inform a patient of the nature and consequences of an abortion than actually seeing an image of the fetus who will be aborted and receiving a medically-accurate description of that image. And there is abundant evidence in the record demonstrating the real-world significance of providing women with this information.”
How does the Kentucky law affect abortions?
It’s unknown how the law will affect the number of abortions in the state. In 2017, the last year for which numbers are available—and the year the legislation was signed into law—Kentucky reported 3,200 abortions. However, because the law was put on hold pending appeals, the first time the ultrasound requirement will be implemented will be later this month.
What is the reaction by pro-life groups to the decision?
Pro-life groups have praised the decision, and hope that the Supreme Court will ultimate deem similar ultrasound-based informed consent provisions to be constitutional.
“Modern ultrasound technology opens an unprecedented window into the womb, providing undisputable evidence of the humanity of the unborn child,” says Marjorie Dannenfelser, president of the national pro-life group Susan B. Anthony List. “The abortion industry has proven incapable of policing itself and will stop at nothing to keep vulnerable women in the dark for the sake of profit, which is why state laws protecting women’s right to informed consent are so important.”
“We thank the Lord for this decision,” adds Todd Gray, the executive director-treasurer of the Kentucky Baptist Convention. “We also thank state leaders for protecting the unborn. People who are pro-life want mothers to have as much information as possible so they can make the best decision for their babies.”