Before Donald Trump nominated him to the federal bench, John K. Bush was perhaps best known as an anti-gay blogger who spread birther conspiracies. Now he is a judge on the U.S. 6th Circuit Court of Appeals. Bush was selected, in part, because of his conservative views on reproductive rights, including a belief that abortion is a tragedy on par with slavery. On Thursday, he transformed those views into law, upholding Kentucky’s “informed consent” law in an opinion overflowing with charged anti-abortion rhetoric.
The Kentucky law at issue is extraordinarily invasive. It requires abortion providers to perform an ultrasound, generally using a transvaginal probe for pregnancies of less than nine weeks, on all patients seeking to terminate their pregnancies. The provider must then describe the fetus in detailed terms, pointing out its organs, and play the sound of its heartbeat. Patients can only avoid this sound and description if they cover their ears and make noises to drown it out.
An abortion clinic sued to block the law, known as H.B. 2, alleging a violation of its doctors’ constitutional rights. It argued that Kentucky seeks to compel ideological speech without sufficient justification in violation of the First Amendment. A federal district court agreed, but on Thursday, a panel of judges upheld H.B. 2 by a 2–1 vote. Writing for the majority, Bush essentially praised the law as an effort to “provide patients with information about the development of unborn life and alternatives to abortion.” (In fact, Bush refused to use the word “fetus”—outside of quotations from statutes and precedents—instead using the phrase “unborn life” every time.)
Even though the Supreme Court has never upheld mandatory sonogram laws, Bush framed H.B. 2 as an obviously legal means to curb abortion. He claimed that “today’s Posterity,” “whose first picture of themselves commonly comes from a sonogram,” turn “to photos and videos to share information.” It is only natural that Kentucky would use images and sounds of “unborn life” to persuade women not to terminate their pregnancies. Analyzing the law under the “undue burden” standard, Bush found that it passed constitutional muster. Any informed consent law “should be upheld,” he wrote, so long as it is “truthful, non-misleading, and relevant to an abortion.” And the Kentucky statute passes this test.
As Judge Bernice B. Donald pointed out in her furious dissent, Bush used the wrong standard: The plaintiffs allege a First Amendment violation, accusing Kentucky of forcing doctors to carry the state’s ideological message. Under the Supreme Court’s 2018 decision in NIFLA v. Becerra, Donald wrote, the government cannot compel doctors’ speech under the pretext of “informed consent” using a law that does not actually facilitate informed consent. And a mountain of undisputed evidence indicates that H.B. 2 fails to provide informed consent, and instead subjects women to emotional trauma. Donald recounts testimony provided by a woman forced to see her “profoundly ill” fetus on an ultrasound before receiving an abortion:
While the staff at the abortion clinic did all they could for me, this experience was nothing short of torture. I had to lie on an examination table, with my feet in stirrups. My belly was exposed with the ultrasound gel and abdominal probe on it while we saw images of our sick child forming on the screen for the third time that day. Before the doctor even started the description, I began to sob until I could barely breathe. My husband had to calm me down and the doctor had to wait for me to find my breath.
The description the doctor provided was perhaps the most devastating part because although our baby was profoundly ill, he had healthy organs too. So, the doctor was forced to describe—and I to hear—that he had a well-developed diaphragm and four healthy chambers of the heart. His words were unwelcome and I felt completely trapped. I closed my eyes. I twisted away from the screen. The doctor and staff repeatedly apologized for making us go through this, but their compassion could not ameliorate my pain.
Multiple doctors and medical professionals testified that this requirement does nothing at all to help patients make any kind of decision. Instead, it subjects them to agony in their most vulnerable moments. Thus, Donald wrote, H.B. 2 does not regulate speech “as part of the practice of medicine.” Instead, it coerces doctors to perform a gratuitous procedure while describing the fetus, “harm[ing] their patients” for “no medical purpose.” Under NIFLA, this kind of content-based regulation of speech must be subject to heightened scrutiny. And because Kentucky put forth “no evidence demonstrating that mandating the procedure set forth in H.B. 2” provides any medical benefit, the law cannot meet this standard. Donald concluded:
Benjamin Franklin warned that “[f]reedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.” H.B. 2 is a restriction on speech that has no basis in the practice of medicine. It should be subjected to heightened scrutiny and deemed unconstitutional, lest our constitution dissolve, and tyranny be erected on its ruins. I dissent!
It is difficult to quibble with Donald’s reasoning, but unfortunately, the plaintiffs have little hope of reversing Bush’s decision. In NIFLA, the Supreme Court’s conservatives created a bizarre double standard: The majority suggested that it would strike down pro-choice disclosure laws, but uphold anti-abortion disclosure laws. So, according to the court, California cannot compel unlicensed “crisis pregnancy centers” to disclose their lack of a license—but states can compel doctors to express anti-abortion propaganda to patients. Donald’s dissent, then, may be logically compelling, but it is unlikely to attract five votes on this Supreme Court. To the conservative justices, the First Amendment simply protects anti-abortion speech more robustly than it protects pro-choice expression. From this hypocrisy, Judge Donald dissents.
