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Faced with objections from the American Civil Liberties Union (ACLU) and to the explosive challenge of a judge appointed by Obama, a federal court of appeal upheld on Thursday the constitutionality of a law of Kentucky requiring doctors to perform ultrasounds and show fetal images to patients before an abortion.
The case comes in the middle of a new national conversation about abortion. Among the highlights of this dialogue: an advocacy by congressional Republicans to protect children who survive an abortion, a radio interview in which the Democratic Governor of Virginia apparently endorsed infanticide in some cases and the publication of an anti-abortion drama called "Unplanned".
The 2-1 decision on Thursday by a 6th panel of the US Circuit Court of Appeals was a major victory for Republican Kentucky governor Matt Bevin. The law was passed in 2017, when Republicans took control of the state legislature and was quickly challenged by the only remaining abortion clinic in Kentucky.
The legislation specifically requires doctors to describe an ultrasound while the pregnant woman listens to the fetal heart rate, although women can look away and ask for the sound to be turned off.
The majority opinion, written by Trump-nominated Judge John Bush and reagan-appointed Alan Eugene Norris, said the Kentucky law did not interfere with First Amendment doctors' right to freedom of speech .
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Bush said the legislation was consistent with the 1992 Supreme Court decision in the Planned Parenthood v. Casey, who had established that states could enact the laws necessary to obtain "informed consent" from women prior to abortion – as long as these laws did not pose an "undue burden" on the right to abortion.
In this photo of July 10, 2018, protesters hold placards for Planned Parenthood in Seattle. (AP Photo / Ted S. Warren, File)
"Is [the law] to refer to a medical procedure? Yes, abortion, "Bush wrote. Are the prescribed disclosures truthful and not misleading? Yes, no one claims that the heartbeat, sonogram or description is false or misleading. We have already found that similar information conveys objective medical facts. … The last question remains: Are the prescribed disclosures relevant to the patient's decision to abort the life to come? The Supreme Court's precedent for abortion answers this question. "
Bush specifically stated that ultrasound images were "relevant" to the decision to end or not what he explicitly called "life to be born".
"The information conveyed by an ultrasound image, its description and the fetal heart that is audibly beating give the patient a better understanding of life to be born in her," said Bush. "This also intrinsically provides the patient with more knowledge about the effects of an abortion procedure: it shows her what or who she agrees to stop." The fact that this information can persuade a woman to change her condition. Notice does not make it suspicious under the First Amendment.This simply means that it is relevant to its decision-making. "
The Kentucky law had been ordered by a court of first instance, which had prompted Bevin to appeal. The ACLU, which filed a complaint on behalf of the EMW Women's Surgery Center, argued that Kentucky's law was essentially identical to a law struck down by a separate North Carolina circuit court in 2014.
Although decisions made by other circuit courts are not binding in the absence of a clear decision of the Supreme Court, they can nonetheless provide convincing arguments. Several other states have existing laws that require either an ultrasound or the option of an ultrasound is clearly indicated.
In tough opposition, Judge Bernice Donald, nominated by Obama, said the law "had no basis in the practice of medicine" and therefore needed to be subjected to scrutiny, according to the Court. supreme.
Donald is specifically opposed to Bush's use of the excessive load management framework provided in the Planned Parenthood v. Casey to deal with the arguments of the ACLU First Amendment, which concern a separate area of law. Donald said that Kentucky's law governs speech and should be evaluated in these terms – and not as an obstacle to abortion.
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Bush's majority view addressed Donald's objections, noting that "although the analysis in Casey largely addressed the plaintiffs' excessive burden claim, the first amendment of the This joint opinion is based on its conclusion that the informed consent disclosures prescribed in this case met the following criteria: truthful, not misleading and relevant. "
Contrary to the suggestion of dissent, "we have" focused on the wrong provision of the Constitution, "Bush wrote," we are actually dealing with the relevant provision – the First Amendment. "
The Kentucky affair seemed destined for the Supreme Court. In February, Chief Justice John Roberts joined the Liberal wing of the Supreme Court to temporarily block a law in Louisiana that would have imposed further restrictions on abortion clinics. , the first major decision of the High Court on abortion since the confirmation of Deputy Judge Brett Kavanaugh.
The decision was made while Roberts, appointed by President George W. Bush, was looking more and more deliberately to introduce the federal judiciary as a non-partisan party, amid a series of attacks by Progressive groups claiming that the new conservative majority of the Supreme Court was endangering the country. Last year, in a very unusual statement, Roberts reprimanded President Trump for criticizing partisanship in the federal justice system.
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