By Deborah J. Dewart, Attorney at Law
Christian Action League
December 26, 2019
Good news! The U.S. Supreme Court has denied the petition of abortion activists who challenged a Kentucky law requiring informed consent to abortion. A federal appeals court (the Sixth Circuit) found the law was a valid informed consent requirement, and that decision will now stand.
Two other federal appeals courts (the Fifth and Eighth Circuits) have upheld similar laws in Texas and South Dakota over the past few years. Abortion, like any other medical procedure, requires that women understand and voluntarily agree to accept the risks involved.
The Kentucky law was passed in 2017 to add an ultrasound requirement to the state’s existing informed consent law. In addition, the doctor must provide a medically accurate description of the ultrasound image and allow the woman to hear the unborn child’s heartbeat if it’s audible.
Many post-abortive women suffer great distress when they learn their consent was not fully informed—because they mistakenly believed the fetus was merely a mass of tissue rather than a living human being at an early stage of development. Robust informed consent laws can help prevent a woman from making a tragic, irrevocable decision to terminate the life of her unborn child.
What does all this mean going forward? Some caution is needed. We can’t read too much into the Supreme Court’s denial of a petition or assume the issue is settled. When the Court denies a petition, it’s not a “decision” about how the case should be decided. It doesn’t tell us how they would have ruled, and it doesn’t mean the justices agree (or disagree) with the law that was challenged. Perhaps a majority of the current justices would uphold the Kentucky law. Hopefully they will do that in a future case. The Court receives several thousand petitions every year and only accepts a tiny percentage of them. Sometimes they wait awhile to see how the law develops in the lower courts.
In this case, there are a few clues. The Court recently granted another blockbuster abortion case, June Medical Services v. Gee, about a Louisiana law that subjects abortion clinics to the same standards as other outpatient facilities. Among other things, the Court will consider whether abortion providers—instead of the women themselves—even have the legal right to challenge a law intended to protect pregnant women. The outcome on that question could have a big impact on whether a challenge to Kentucky’s law—or other laws like it—can be brought to court by abortionists. The Court may not want to take on another contentious abortion case in the same term. In addition, there is a separate petition pending about an Indiana ultrasound requirement. That one has been sitting on the Court’s docket for months but it hasn’t yet been granted or denied. Perhaps they will grant it—but then again it might be denied without comment.
How should North Carolina respond? Several years ago, our state enacted a similar law as part of the “Woman’s Right to Know” Act. A different federal appeals court (the Fourth Circuit) struck it down, reasoning that it was a “compelled speech” mandate that violated the doctors’ First Amendment rights.
This seems contrary to the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey. The law may require abortion providers to obtain informed consent by providing truthful, non-misleading information that is relevant to the procedure. That’s true of any medical procedure, and abortion is no exception.
That’s all the Kentucky law does. An ultrasound, accompanied by the doctor’s explanation of the image, is truthful, non-misleading, and highly relevant to a woman’s decision about her pregnancy. The Court reaffirmed this principle a couple of years ago when the justices heard arguments in National Institute of Family & Life Advocates (“NIFLA”). NIFLA struck down a draconian California law that would have forced pro-life pregnancy centers to provide their clients with information about the state’s free abortion services—contrary to their mission and message. That’s not “informed consent” at all—it’s coerced free advertising for the state! The NIFLA decision reinforces the validity of the Kentucky ultrasound law as a normal informed consent requirement.
Perhaps, in light of NIFLA and these other federal appeals court decisions, our state should think about enacting a requirement patterned after the one in Kentucky. Legislators will need to consider the composition of the legislature and the possibility of a veto by the governor. There would likely be another legal challenge, and possibly another adverse decision in the Fourth Circuit.
The circuit court has become liberal, but new federal judges are being confirmed all the time and some of the circuits have flipped. But even if a Fourth Circuit decision were unfavorable, this could be the case that propels the issue back up to the Supreme Court.
We don’t know how the Supreme Court will ultimately rule in a future case, although we have good reason to be optimistic. Meanwhile, the Court’s refusal to grant the abortion providers’ petition is good news for Kentucky and other states in the Sixth Circuit (Ohio, Tennessee) that pass laws to give women the information they need about risks of abortion. Often, a woman who sees an ultrasound of her developing child will choose life!
Deborah J. Dewart earned her theology degree from Westminister Seminary in 1998 and her law degree from Chapman School of Law in 2002. Since then, she has written and filed several briefs with the U.S. Supreme Court in cases involving constitutional law and religious liberty. In addition to practicing law in California and North Carolina, Deborah is a ventriloquist and songwriter engaged in a growing ministry to young children (www.resurrectionrabbit.com). She lives in coastal North Carolina near many relatives and church friends.