Friday, April 05, 2019

6th Circuit Upholds Kentucky's Abortion Informed Consent Law

In EMW Surgical Women's Center, P.S.C. v. Beshear, (6th Cir., April 4, 2019), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. According to the court:
... Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.
The majority concluded:
H.B. 2—The Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights....
Judge Donald dissented, saying in part:
The Commonwealth has coopted 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....  [T]he majority 1) conflates the undue burden and First Amendment standards, while misreading the explicit language of Casey; 2) ignores the national standards of medical care; and 3) disregards the evidence showing that H.B. 2 is not consistent with the medical practice of informed consent.
[Thanks to Tom Rutledge for the lead.]