On Monday, the Supreme Court declined to review Kentucky’s extreme anti-abortion law, allowing the measure to stand. Under the law, known as H.B. 2, doctors must conduct an ultrasound, describe the fetus in great detail, and play the sound of its heartbeat before performing an abortion. In early pregnancies, they will be forced to insert a transvaginal probe. The Supreme Court’s refusal to consider the legality of H.B. 2 indicates the liberal justices do not trust that the conservative majority will affirm the constitutional rights to abortion providers and patients.
H.B. 2 is known, euphemistically, as an “informed consent” requirement. The Supreme Court approved a far milder version of “informed consent” in 1992’s Planned Parenthood v. Casey, allowing Pennsylvania to provide anti-abortion materials to patients, who could decline to read them. H.B. 2 obviously goes far further, forcing doctors not only to play the fetus’s heartbeat, but also to point out its organs. Any patient who wishes to avoid this information cannot opt out. Doctors must generally use a transvaginal ultrasound for pregnancies of less than nine weeks to obtain images with the requisite detail.
Kentucky physicians challenged H.B. 2, arguing that it compelled ideological speech in violation of the First Amendment. By a 2–1 vote, the U.S. Court of Appeals for the 6th Circuit upheld the law. Judge John K. Bush, a Trump appointee, authored the majority opinion. Bush, who is 55, praised Kentucky for implementing “informed consent” in the “Cyber Age,” when “the Gen-X, Millennial, and Gen-Z generations … increasingly turn to photos and videos to share information.” There is no reason, Bush wrote, why states cannot also use “photos and videos” to “protect unborn life.”
This opinion was squarely in line with Bush’s record on conservative priorities. Before joining the bench in 2017, Bush was an anti-gay blogger who used the word faggot in a speech and urged Congress to “gag” “Mama Pelosi.” He complained that the State Department’s decision to provide gender-neutral passport applications to same-sex parents was worthy of “outrage.” He promoted “birther” conspiracy theories about President Barack Obama. And in 2008, he compared abortion to slavery, juxtaposing Dred Scott with Roe v. Wade and writing, “The two greatest tragedies in our country—slavery and abortion—relied on similar reasoning and activist justices at the U.S. Supreme Court.” (Why, after all these screeds, was Bush nominated to a lifetime appointment on the federal bench? He was chairman of his local Federalist Society chapter.)
Given his record, it was no surprise that Bush distorted the record to uphold H.B. 2. As Judge Bernice B. Donald (an Obama appointee) noted in dissent, multiple medical experts and physicians testified that the law would do nothing to help patients and would merely intensify their pain and vulnerability. Donald also recounted the testimony of one woman forced to undergo this procedure before terminating a “profoundly ill” fetus:
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.
In short, H.B. 2 will frequently mandate forced vaginal penetration that, in almost any other context, would constitute sexual assault. It also brazenly abridges physicians’ freedom of speech. So why did the Supreme Court allow Bush’s ruling to stand with no noted dissents? It takes four votes to hear a case, meaning the four progressive justices could’ve compelled the court to review H.B. 2. But it appears that the liberal bloc is so pessimistic about their colleagues’ views on abortion that they would rather not risk a crushing loss. When Justice Anthony Kennedy was on the court, the liberal justices had a fighting chance to nab his vote in abortion cases. Now, with Justice Brett Kavanaugh in Kennedy’s old seat, they seem to fear they have no prospect of killing H.B. 2.
The liberal justices are right to worry. Kavanaugh is a staunch foe of abortion rights who is willing to ignore precedent to let the government restrict the procedure or demean women who seek it. Meanwhile, in 2018’s NIFLA v. Becerra, the court’s conservatives made clear that anti-abortion speech receives stronger constitutional protections than pro-choice speech. The majority ruled that states cannot direct “crisis pregnancy centers” to disclose their lack of a medical license, or post information about clinics that provide the full range of reproductive care, including abortions, at low or no-cost. Meanwhile, the majority held that states can force abortion providers to repeat the state’s overtly ideological anti-abortion message to patients. (That may include lies: A number of states order doctors to peddle outright falsehoods, including the myths that abortion causes breast cancer or can be reversed.)
Thanks to the influx of Federalist Society stalwarts (like Bush and Kavanaugh) onto the federal judiciary, the constitutional right to abortion access is in serious jeopardy. President Donald Trump has now appointed a quarter of all federal appellate judges, and most cases (including the challenge to H.B. 2) end in the court of appeals. Later this term, the Supreme Court will likely uphold Louisiana’s attempt to regulate abortion clinics out of existence. Kavanaugh’s confirmation prompted an all-out war on legal abortion. And most jurists—from the Supreme Court’s liberals to staunch conservatives like Bush—know which way the wind is blowing.
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