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LOUISVILLE, Ky. (AP) — A legal feud over stricter abortion laws in Kentucky reached a federal appeals court, where lawyers for an abortion clinic and Gov. Matt Bevin's administration wrangled Wednesday over requiring doctors to perform ultrasounds and show fetal images to patients prior to abortions.
The 2017 law, enacted soon after the GOP assumed complete control of Kentucky's legislature, was challenged by the state's last abortion clinic. The law was struck down last year by a federal judge, prompting an appeal by Bevin, a Republican and abortion opponent.
A three-member panel of the 6th U.S. Circuit Court of Appeals heard the legal arguments Wednesday in Cincinnati.
Similar cases went before two other federal appeals courts across the country in recent years, resulting in different outcomes. A similar law in North Carolina was struck down, while an ultrasound abortion law in Texas was upheld.
Kentucky's law seeks to force doctors to describe the required ultrasound in detail while the pregnant woman listened to the fetal heartbeat. The law says women could avert their eyes and ask to have the sound of the heartbeat turned off. But doctors still would have to perform the ultrasound and describe it to her. If they don't, the doctors could be fined up to $250,000 for repeat violations.
Attorneys from the American Civil Liberties Union, representing the clinic, contend the law — known as House Bill 2 — violates doctors' First Amendment rights by forcing them to deliver "ideological" messages to their patients, even when it's against a patient's wishes.
Chad Meredith, an attorney for the state of Kentucky, said the message isn't ideological but instead delivers "pure scientific facts" relevant to an abortion procedure. He noted that the lone abortion clinic in Kentucky — EMW Women's Surgical Center in Louisville — routinely performs ultrasounds before doing abortions.
"All that House Bill 2 requires them to do is to turn the monitor around, show it to the patient and say 'here is what this depicts,'" he told the court based on an audio recording. "This adds absolutely no more than five minutes to the procedure. There's nothing unreasonable about this."
ACLU attorney Alexa Kolbi-Molinas said the clinic offers to show ultrasounds to patients and to let them ask questions. The law, however, imposes forced speech on doctors that they must convey to patients, subverting the informed consent process, she said.
"Informed consent is not designed to reduce patients to sobbing, to plugging their ears while their physicians are still talking to them, to hiding their head in their shirts, to having to beg their physician to stop — all of which is what happened," she said.
When pressed during the hearing to defend the state mandate, Meredith said the information would benefit any woman who mistakenly believes their fetus to be an "inanimate clump of cells and tissue," not knowing it is starting to assume human form.
In Kentucky, the ultrasound law is just one front in a bitter legal feud between the ACLU and Bevin's administration over abortion.
A new Kentucky law seeking to ban a common procedure for second-trimester abortions is on hold temporarily pending a trial later this year after the measure was challenged. The law would ban a procedure known as "dilation and evacuation." It seeks to ban those procedures performed 11 weeks after fertilization.
In another case, the state's last abortion clinic is embroiled in a licensing fight that began when Bevin's administration claimed the facility lacked proper agreements with a hospital and an ambulance service in case of medical emergencies. The clinic filed a federal lawsuit to prevent the state from revoking its license. A trial was held last year but a judge has not yet ruled.
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