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US Supreme Court allows Kentucky’s abortion ultrasound law to stand

BMJ 2019; 367 doi: https://doi.org/10.1136/bmj.l6967 (Published 12 December 2019) Cite this as: BMJ 2019;367:l6967
  1. Owen Dyer
  1. Montreal, Canada

The United States’ highest court has declined to review a Kentucky law that requires doctors performing abortions to perform fetal ultrasounds and show them to patients, even if the patient asks them not to.

The Kentucky Ultrasound Informed Consent Act allows the patient to close her eyes if she wishes not to see the image, but the physician is obliged to display it, verbally pointing out any visible body parts. Failure to comply is punishable by six figure fines and referral to the state medical board.

The law also requires the doctor to make the fetal heartbeat audible if technically feasible, though the patient may then ask that the sound be turned down. A patient who has not undergone such an ultrasound has not given informed consent, the law stipulates.

As is usual when refusing applications to review appeal court decisions, the Supreme Court judges published no explanation and no dissenting opinions. Kentucky’s law, which was passed in 2017, may go into effect immediately.

The case against the law was brought by the American Civil Liberties Union which argued that it infringes physicians’ right to free speech, and “violates basic principles of medical ethics and of informed consent by compelling doctors to dismiss patient’s objections.”

Last year, citing first amendment grounds, the Supreme Court’s conservative majority struck down Californian legislation that compelled church funded “crisis pregnancy centres” to give women information on how to seek an abortion.

Kentucky’s law was initially stopped by a federal judge who ruled that it was “designed to convey the state’s ideological, anti-abortion message.”

But last year a US Court of Appeals upheld the law, with the majority ruling that it merely “requires the disclosure of truthful, non-misleading, and relevant information about an abortion” to help the informed consent process.

A dissenting judge wrote that Kentucky “has co-opted physicians’ examining tables, their 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.”

Because the landmark 1973 Supreme Court decision in Roe v Wade protects the patient’s right to seek abortion, many recent state laws aimed at curtailing the practice have targeted physicians instead, to avoid being overturned in the courts.

Some states have required abortion clinics to buy prohibitively expensive safety equipment. Others have required that doctors working in abortion clinics obtain hospital admitting privileges. One such law, passed in Louisiana, will be reviewed by the Supreme Court in March, the first abortion case it has heard in three years.

The Unsafe Abortion Protection Act would disqualify all but one of Louisiana’s abortion doctors, a CBS News investigation found. That doctor has said he will retire if it goes into effect.1

This incrementalist approach by abortion opponents has seen the overall number of clinics in the US fall by nearly a third since 2014, with many Republican led states reduced to a handful of clinics. In six states only one abortion clinic is open.

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