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Supreme Court won’t review abortion law challenged by doctors who say it violates their right to free speech

(Ricky Carioti/The Washington Post)

The Supreme Court announced Monday that it will not review a Kentucky law that requires doctors who perform abortions to give a detailed description of the fetus’s development while the woman is shown an ultrasound image, even if she objects.

Without comment or noted dissent from any of its liberal members, the court said it was not taking up a challenge to the law filed by doctors at Kentucky’s only abortion clinic. The doctors contended the state’s requirements compelled their speech and violated their First Amendment rights.

The Supreme Court already has one high-profile abortion case on its docket this term. In March, it will consider a Louisiana law that requires physicians to have admitting privileges at a nearby hospital. It is almost identical to a Texas law the court struck down in 2016 as medically unnecessary and meant to limit a woman’s access to the procedure.

Supreme Court will review Louisiana abortion law

But the court’s membership has changed since then and now has a conservative majority thought to be more receptive to laws that restrict abortion.

A majority of states require ultrasounds before abortions, but a smaller number have varying requirements about what must be offered to the woman. Kentucky in 2017 passed a law that required doctors to show the ultrasound image and describe in detail the fetus, even if the woman did not want the information.

The clinic in its brief to the Supreme Court used dramatic language to describe the scene:

“While the patient is half-
naked on the exam table with her feet in stirrups, usually with an ultrasound probe inside her vagina, the physician has to keep talking to her, showing her ­images and describing them, even as she tries to close her eyes and cover her ears to avoid the speech,” the brief from EMW Women’s Surgical Center said.

The law forcing the physician’s words was a “compelled-speech mandate wholly unrelated to traditional informed consent and therefore presumptively unconstitutional,” the clinic and its doctors argued.

A federal district judge struck down the law, but a panel of the U.S. Court of Appeals for the 6th Circuit revived it.

Kentucky said the appeals court got it right.

Without the requirement, there is no reason to believe that abortion providers “do anything to dispel the mistaken beliefs of women who . . . are under the impression that their fetuses are simply masses of inanimate tissue rather than living beings that are assuming the human form,” Kentucky wrote in its brief.

“Thus, while the Petitioners claim to offer the information to women, there is no evidence that the Petitioners do anything to make sure that all women are fully informed about the nature of their fetus or the nature and consequences of the abortion procedure.”

The Supreme Court in 1992 upheld a state’s ability to enact an informed consent requirement before a woman could obtain an abortion.

The Kentucky clinic pointed out that a different appeals court had struck down a North Carolina law that was materially identical to the Kentucky law.

But the 6th Circuit said that was before a 2018 decision by the Supreme Court involving pregnancy crisis centers in California.

The panel said the court reaffirmed its 1992 ruling that a compelled informed consent disclosure is constitutional as long as it is truthful, not misleading, and relevant to the patient’s decision.

The divided judges found Kentucky’s law met that test, so “it does not violate a doctor’s right to free speech under the First Amendment.”

Jeanne Mancini, president of March for Life, praised the Kentucky law, saying in a statement that “women facing an unexpected pregnancy deserve to have as much medically and technically accurate information as possible when they are making what could be the most important decision of their life.”

The American Civil Liberties Union, which represented the clinic, said the court should have taken the case.

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

The Kentucky case is EMW Women’s Surgical Center v. Meier.

Correction: A previous version of this story misstated when the Supreme Court would consider a Louisiana abortion law. It will do so in March.