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U.S. Supreme Court rules Kentucky law requiring doctors to perform ultrasounds will stay in place

By Mark Maynard and Tom Latek
Kentucky Today

Pro-life supporters in Kentucky were pleased with a decision by the U.S. Supreme Court on Monday that left in place a Kentucky law requiring doctors to perform ultrasounds and show fetal images to patients before abortions.

The justices did not comment in refusing to review an appeals court ruling that upheld the law.

April Lanham, center, undergoes a procedure in Frankfort, Ky., that allows the audience at a Kentucky legislative meeting to hear her unborn son’s heartbeat, Thursday, Feb. 14, 2019 in Frankfort, Ky. The U.S. Supreme Court made a decision Monday to keep in place a law that requires doctors to give an ultrasound and show fetal images to patients before abortions. (Kentucky Today/Tom Latek)

The American Civil Liberties Union had challenged the law on behalf of Kentucky’s lone remaining abortion clinic in Louisville. The ACLU argued that “display and describe” ultrasound laws violate physicians’ speech rights under the First Amendment.

The federal appeals court in Cincinnati upheld the Kentucky law, but its sister court in Richmond, Virginia, struck down a similar measure in North Carolina.

In Kentucky, doctors must describe the ultrasound in detail while the pregnant woman listens to the fetal heartbeat. Women can avert their eyes and cover their ears to avoid hearing the description or the fetal heartbeat. Doctors failing to comply face fines and can be referred to the state’s medical licensing board.

“This means the 6th Circuit [Court of Appeals] opinion in our favor will be upheld,” said Steve Pitt, the general counsel for outgoing Gov. Matt Bevin. “The mandate we’ll issue shortly, the stay will be lifted and presumably the requirement that ultrasounds be performed, and doctors describe what is in the womb, will begin within a few days now. We assume and trust that is what will be enforced.”

The law was passed in 2017 and was signed by Bevin, a pro-life governor who said that agenda was one of the hallmarks of his term. 

“Kentucky has become a national leader in implementing strong pro-life protections,” said Gov. Bevin. “We applaud today’s Supreme Court decision, which gives final affirmation to the commonsense notion that patients should be well equipped with relevant information before making important medical decisions. I am grateful to be governor of a state that values every human life, and I’m proud of our administration’s unwavering commitment to fight on behalf of the most vulnerable among us.”

Todd Gray, the executive director-treasurer of the Kentucky Baptist Convention, called the court’s decision “good news for Kentucky.

“We thank the Lord for this decision. We also thank state leaders for protecting the unborn,” he said. “People who are pro-life want mothers to have as much information as possible so they can make the best decision for their babies.”

Pitt says there had been similar cases before the Supreme Court.

“Two circuits, the 7th and the 5th, issued opinions consistent with ours. The 4th Circuit arguably had an opinion that was inconsistent,” he said. “The 6th Circuit ruled our way, and the Supreme Court refused the abortion clinics for an appeal.”

Pitt explained the effect of the Supreme Court decision. 

During the past four years, several pro-life pieces of legislation have been enacted by the Republican-led General Assembly (click to enlarge).

“It simply means that the law that was passed in 2017, requiring that doctors who perform abortions show an ultrasound to the patient before the abortion is performed, and describe what is depicted in the sonogram, and that the heartbeat be made audible, unless the mother does not want to hear the heartbeat,” said Pitt, general counsel for the Bevin administration. “It’s a five-minute procedure that takes place before the abortion is performed, to give the women who might have a lack of understanding of what’s actually in the womb, that’s a real, living human being there, they might change their mind.”

Marjorie Dannenfelser, president of the national pro-life group Susan B. Anthony List, said modern technology “opens an unprecedented window into the womb, providing undisputable evidence of the humanity of the unborn child.”

Dannenfelser said state laws protecting women’s right to informed consent remains critical.

“The abortion industry has proven incapable of policing itself and will stop at nothing to keep the 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,” she said in a statement.

The ALCU reacted with disappointment to the decision.

“By refusing to review the Sixth Circuit’s ruling the Supreme Court has rubber-stamped extreme political interference in the doctor-patient relationship,” said Alex Kolbi-Molinas, senior staff attorney at the ACLU Reproductive Freedom Project, in a release. “This law is not only unconstitutional, but as leading medical experts and ethicists explained, deeply unethical.”

Since Pitt is joining Attorney General-elect Daniel Cameron as his general counsel when Cameron takes office Dec. 17, he was asked about the status of other pro-life lawsuits currently pending in the courts. 

“That’s yet to be determined,” he said.

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