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Lawsuit: Kentucky’s Forced Ultrasound Law is Unconstitutional

The GOP-backed measure provides no exception for circumstances in which the doctor believes the ultrasound will have a traumatic effect on a patient.

HB 2 requires that the doctor show and describe the ultrasound images even if the patients averts their eyes or asks the doctor to stop. Shutterstock

Attorneys from the American Civil Liberties Union (ACLU) and the ACLU of Kentucky filed a lawsuit Monday challenging a new Kentucky anti-abortion restriction lawmakers fast-tracked in the first days of this year’s legislative session.

The lawsuit was filed on behalf of EMW Women’s Surgical Center, its three physicians, and their patients. EMW is the sole licensed outpatient abortion clinic in the state. The suit challenges a forced ultrasound measure advocates say is unconstitutional. The law, HB 2, mandates doctors display and describe in detail the images of an ultrasound to a patient prior to performing an abortion, even if the patient objects and even if the doctor believes that the forced ultrasound will harm the patient.

HB 2 requires that the doctor show and describe the ultrasound images even if patients avert their eyes or ask the doctor to stop.

Kentucky’s forced ultrasound law, which breezed through the GOP-held legislature, is nearly identical to a North Carolina law that the Fourth Circuit Court of Appeals unanimously struck down in 2014 as unconstitutional.

The GOP-backed measure provides no exception for circumstances in which the doctor believes the ultrasound will have a traumatic effect on a patient, including for patients who became pregnant as a result of rape or incest and patients who face a medical condition or fetal anomaly.

According to the allegations in the complaint, the law “profoundly intrudes on the practice of medicine and violates basic principles of medical ethics” by forcing doctors to “deliver a government-mandated, ideological message to patients in violation of the First Amendment, all the while causing harm to their patients.” The complaint alleges HB 2 compels patients to “listen to this government-mandated speech while lying captive on the examination table.”

“The law is an example of political interference operating in its most perverse form,” Alexa Kolbi-Molinas, senior staff attorney at the ACLU’s Reproductive Freedom Project, said in a statement. “A woman deserves to expect high quality compassionate care from her doctor. Instead, this law puts politicians in the exam room—squarely between a woman and her doctor.”

HB 2 was not the only anti-abortion restriction introduced by Kentucky Republicans in the first week of the state’s legislative session. Kentucky’s legislature passed SB 5, which bans abortion procedures after 20 weeks of gestation.

Both restrictions went into effect when staunchly anti-choice Gov. Matt Bevin (R) signed the bills on Monday. The ACLU has not yet determined if it will challenge Kentucky’s unconstitutional 20-week ban.