Supreme Court Lets Kentucky Abortion Ultrasound Law Take Effect

WASHINGTON — The Supreme Court on Monday said it would not hear a challenge to a Kentucky law that requires doctors performing abortions to display fetal ultrasounds and to describe the images to women seeking the procedure. The court’s action means the law will go into effect.

As is its custom, the court gave no reasons for turning down the appeal in the case, EMW Women’s Surgical Center v. Meier, No. 19-417. There were no noted dissents.

The case was brought by the only licensed abortion clinic in the state and three doctors who work there. They challenged a 2017 law that requires doctors to give a detailed description of fetal ultrasound images, including “the presence of external members and internal organs.” Doctors are also required to make the fetal heartbeat audible if they can.

This ordinarily takes place, the challengers’ petition seeking review said, while the woman “lies half-naked on the examination table with her feet in stirrups, and usually with a probe inside her vagina.” The law specifies that women may avert their eyes and ask that the volume of the audio of the heartbeat be turned down or off.

The challengers argued that forcing doctors to participate violated their First Amendment rights. A federal trial judge agreed, saying the law was “designed to convey the state’s ideological, anti-abortion message.”

A divided panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the law. It was, the court said, an ordinary regulation of medical professionals to ensure that their patients gave informed consent before undergoing abortions.

The law, Judge John K. Bush wrote for the majority, “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 dissent, Judge Bernice Bouie Donald said the state “has co-opted physicians’ examining tables, their probing instruments and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician.”

In a brief urging the Supreme Court to deny review, lawyers for the state wrote that the law served an important purpose. “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,” the brief said.

Federal appeals courts are divided over whether “display and describe” ultrasound laws like Kentucky’s are constitutional. Such divisions can lead the Supreme Court to grant review.

Last year, by a 5-to-4 vote, the Supreme Court ruled on free-speech grounds that California could not require religiously oriented “crisis pregnancy centers” to supply women with information about how to end their pregnancies.

The Supreme Court will hear arguments in March in a different abortion case, June Medical Services v. Gee, No. 18-1323. That one concerns a Louisiana law that requires abortion providers to have admitting privileges at a nearby hospital.