Just a quick note about an important ruling last week.
On Thursday, a divided panel of the Sixth Circuit ruled (in EMW Women’s Surgical Center v. Beshear) that Kentucky’s “Ultrasound Informed Consent Act” does not violate the First Amendment rights of doctors. Under the Act, a doctor, before performing an abortion, must auscultate (make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the mother.
The impressive majority opinion, written by Judge John K. Bush, concludes that the Act is constitutionally permissible because, like the statute that the Supreme Court upheld against a similar First Amendment challenge in Planned Parenthood v. Casey (1992), it “requires the disclosure of truthful, non-misleading, and relevant information about an abortion.” As the majority explains, “Ultrasounds are ubiquitous procedures that are a part of every pregnancy and, EMW [the challenger] concedes, every abortion.” Further, “because of its individualized nature, a sonogram provides even more relevant information for the patient’s decision than any of the required materials at issue in Casey.” The court observes that its ruling comports with rulings by the Fifth Circuit and the Eighth Circuit, and it sets forth why an inconsistent ruling by the Fourth Circuit is unpersuasive in light of the Supreme Court’s ruling last year in NIFLA v. Becerra.
The opinion by Bush (a Trump appointee) was joined by Judge Alan Norris (a Reagan appointee). Judge Bernice Donald (an Obama appointee) dissented.