A new anti-abortion law in Kentucky that requires doctors to conduct an ultrasound and present the results to a woman before performing an abortion violates the First Amendment free speech rights of physicians, the ACLU of Kentucky argued Thursday in federal court.
House Bill 2, which went into effect when Gov. Matt Bevin signed it into law in January, requires doctors to show women an image of the ultrasound, describe what it depicts and share the heartbeat of the unborn child if one is present. In general, if the pregnancy is less than nine weeks, a trans-vaginal ultrasound rather than an external ultrasound is performed.
The ACLU sued to stop the law on behalf of EMW Women’s Surgical Center in Louisville, the only licensed outpatient abortion clinic in the state. It performs about 3,000 abortions a year.
Steve Pitt, an attorney representing Bevin and the Cabinet for Health and Family Services, countered in court Thursday that Kentucky has a legitimate and substantial responsibility to protect the life of an expectant mother and fetus, which the state defines as an unborn child. The ACLU’s free speech argument does not apply, he said, citing legal precedent that says governments can require certain communications from corporate entities.
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“This law does not prohibit physicians from making any statement to the patients that they wish to make,” Pitt said.
The ACLU, though, said the law is unconstitutional because it requires mandatory speech from physicians.
“This is a First Amendment case and this is about a physician’s First Amendment right not to be compelled to speak by the state,” said Alexa Kolbi-Molinas, an attorney for the ACLU.
The ACLU and Pitt presented their arguments to U.S. District Court Judge David Hale, an Obama appointee, in the Western District of Kentucky. Hale is deciding whether to grant or deny the ACLU’s request to temporarily halt the law until the court determines if it is constitutional. His decision is pending.
The ACLU called three witnesses in the case: two physicians who perform abortions and a medical ethicist, who specializes in pediatric oncology. Pitt called none.
The first witness, Dr. Tanya Franklin, is one of three physicians who provides abortions in Kentucky. She testified that while the law has not discouraged any of her patients from getting an abortion, it has caused emotional distress for some of them.
“I feel like I’m coercing them,” Franklin said. “I feel like that bully on the playground.”
Dr. Steven Joffe, a medical ethicist, argued that the law has little to do with medical standards for informed consent. Instead, it violates doctors’ ethics by forcing them to give patients information they may not want to hear.
“That looks nothing like any informed consent I am aware of,” Joffe said.
Kolbi-Molinas used that testimony, and the testimony of Dr. Mark Nichols, to argue that the law violates standards for care, medical ethics and informed consent, thereby imposing speech on physicians that is not beneficial to their practice.
Pitt discounted the witnesses, saying their testimony wasn’t particularly relevant to the case and argued that the bill does not put much of an additional time burden on the doctor. He said the law could have a significant impact on the relationship between the patient and the doctor because the doctor typically only sees the patient once.
“It’s not like a patient who sees a doctor regularly for year after year after year,” Pitt said.
Kolbi-Molinas, though, argued that it matters if a patient feels discomfort when having the ultrasound described to them or hearing the heartbeat of the fetus.
“When examining speech claims, the effect on the listener is relevant,” she rebutted.
Lying below the surface of the hearing was Frankfort’s premier political drama — the feud between Bevin and Attorney General Andy Beshear.
Pitt, the general counsel for Bevin, did all the talking while two of Beshear’s lawyers sat silently through the hearing. Lawyers from the Office of Attorney General have made a motion to dismiss their clients — Beshear and the Kentucky Board of Medical Licensure — from the case, but Hale said at the beginning of the daylong hearing that he wouldn’t take up that motion Thursday.
Bevin has accused Beshear of not doing enough to defend House Bill 2.
As Beshear’s attorneys listened, Pitt plowed on with his argument, sometimes using language about abortions that is more often seen in the chambers of the statehouse than in a courtroom. He said if temporarily halting the law would impact at least one woman or fetus, the judge shouldn’t do it.
“The legislature of Kentucky has decided that it is for the public good to protect women who are pregnant from perhaps later regrets,” Pitt said.