DECEMBER 9, 2019
The justices declined without comment to hear an appeal by the American Civil Liberties Union (ACLU) of a lower court ruling that upheld the law after a federal judge previously had struck it down as a violation of the U.S. Constitution’s First Amendment guarantee of free speech.
The Supreme Court has a 5-4 conservative majority and is closely divided on abortion rights.
On March 4, the court is scheduled to hear its first major abortion case in three years in a dispute over the legality of a Republican-backed Louisiana law that imposes restrictions on doctors who do abortions.
The Supreme Court in 1973 recognized a woman’s right to obtain an abortion under the U.S. Constitution. In a 1992 ruling reaffirming that right, the court endorsed so-called “informed consent” laws that require women to be given certain information before they can obtain abortions.
“We are extremely disappointed that the Supreme Court will allow this blatant violation of the First Amendment and fundamental medical ethics to stand,” said Alexa Kolbi-Molinas of the ACLU in reaction to the Kentucky case.
Kentucky Governor Matt Bevin, a Republican who led the defense of the law, applauded the decision, saying it “gives final affirmation to the commonsense notion that patients should be well equipped with relevant information before making important medical decisions.”
The ACLU filed the lawsuit on behalf of EMW Women’s Surgical Center, Kentucky’s only licensed abortion clinic, as well as doctors who work there shortly after the law was passed in 2017.
Kentucky requires a physician or qualified technician to perform the ultrasound and position the screen so the woman can view the images of the fetus. The medical staff are required to describe what the images show, including the size of the fetus and any organs or appendages visible. They are also required to make audible the sound of the fetal heartbeat.
The law requires the physicians to continue with the process even if the patient objects and shows signs of distress. Doctors can be fined and referred to the state’s medical licensing board if they fail to comply with the law.
On the Louisiana law case next year, the high court’s ruling could lead to new curbs on access to abortion. Numerous Republican-backed measures restricting abortion have been passed at the state level in recent years.
The Louisiana case will test the willingness of the court, which includes two conservative justices appointed by Republican President Donald Trump, to uphold laws that lower courts have ruled unconstitutional. The court has shifted to the right after Justice Anthony Kennedy, a decisive vote in favor of abortion rights, retired in 2018 and was replaced by Trump appointee Brett Kavanaugh, who has a thin judicial record on the issue.
The Louisiana law requires that doctors who perform abortions have a difficult-to-obtain arrangement called “admitting privileges” at a hospital within 30 miles (48 km) of the abortion clinic. Challengers say the regulation would lead to two of the state’s three clinics closing down.
In 2018, the Supreme Court blocked a California law requiring clinics that counsel women against abortion to notify clients of the availability of abortions paid for by the state, finding that it violated the free speech rights of the facilities. In that 5-4 ruling along ideological grounds, the court’s conservative justices were in the majority.
A federal judge in 2017 struck down the law but in an April 2019 ruling the Cincinnati-based 6th U.S. Circuit Court of Appeals declared it lawful.
In 2015, the Supreme Court rejected a bid by North Carolina to revive a similar law that had been struck down. A similar law in Texas was upheld by a federal appeals court in 2012.