In a 2-1 ruling on April 4, the Sixth Circuit Court of Appeals upheld a Kentucky law requiring doctors to perform ultrasounds and show the images of the unborn babies to the pregnant woman as she listens to the fetal heartbeat, prior to her decision to have an abortion.
The legislation specifically requires doctors to describe an ultrasound although women can avert their eyes and ask to have the sound turned off. However, physicians who fail to attempt to show and describe the unborn baby to the patient could face fines of up to $250,000 and action against their medical license.
The 2017 law was challenged by the state’s last remaining abortion clinic and a lower court invalidated the law as “unconstitutional” because it said it violates the free speech rights of physicians. Governor Matt Bevin appealed and now a three-judge panel on the Sixth Circuit, led by Judge John Bush, a Trump appointee, has reversed and reinstated the law.
The majority opinion, written by Judge Bush and joined by Reagan appointee Alan Eugene Norris, said the Kentucky law did not step on doctors’ First Amendment free speech rights and that ultrasound images were “relevant” to the decision as to whether to terminate what he explicitly called “unborn life.” Bush said the legislation complied with the Supreme Court’s seminal 1992 ruling in Planned Parenthood v. Casey, which established that states can enact laws necessary to obtain women’s “informed consent” prior to an abortion, as long as those laws don’t pose an “undue burden” on the abortion right.
Judge Bush wrote: “Does [the law] relate to a medical procedure? Yes — abortion. Are the mandated disclosures truthful and not misleading? Yes—no one argues that the heartbeat, sonogram, or its description is false or misleading. We have previously held that similar information conveys objective medical facts. … That leaves the final question: Are the mandated disclosures relevant to the patient’s decision whether to abort unborn life? The Supreme Court’s abortion precedent answers this question for us.”
“The information conveyed by an ultrasound image, its description, and the audible beating fetal heart gives a patient greater knowledge of the unborn life inside her,” Bush said. “This also inherently provides the patient with more knowledge about the effect of an abortion procedure: it shows her what, or whom, she is consenting to terminate. That this information might persuade a woman to change her mind does not render it suspect under the First Amendment. It just means that it is pertinent to her decision-making.”
In South Dakota, Governor Kristi Noem recently signed five bills into law that add new restrictions on abortions and responsibilities on the physicians committing them, as well as a new safeguard for patients’ rights. Four of the bills will require abortionists to give women the chance to see a sonogram of their baby and listen to his or her heartbeat, make it a Class B felony to cause an abortion against a mother’s will, impose reporting requirements on abortions, and create a standardized abortion consent form. A fifth bill requires parental consent before orders to withhold resuscitation can be used on minors.
A 2011 study by Quinnipiac University’s Mark Gius concluded that ultrasound laws had a very significant effect on women choosing life for their babies. Gius quoted a director of an abortion center who noted that before ultrasounds were available about 40-50 percent of their clients decided to keep their babies. After the clinic started offering ultrasounds, this percentage increased to over 75 percent.
Save the Storks, a nonprofit pro-life organization that has a fleet of state-of-the-art “Stork Buses” equipped with sonogram machines, states that four out of five pregnant women who see their unborn child on one of their free ultrasounds ultimately choose life. The similar ICU Mobile says its ultrasounds have convinced 56 percent of women who had already decided on abortion to change their minds, and 87 percent of those who were undecided to choose life.
“These mandatory ultrasound laws are great victories in Kentucky and South Dakota for children, mothers and families,” said Mat Staver, Founder and Chairman of Liberty Counsel. “A mother has a right to see and hear the unborn life inside her. Planned Parenthood wants to shield her from this because it knows that once she sees her baby’s fingers and toes and hears the heartbeat, she is highly likely to choose life rather than death,” said Staver.