The U.S. Supreme Court’s December decision not to take a lawsuit challenging Kentucky’s forced ultrasound law, which obliterates abortion providers’ free speech rights, has provided an opening for states to enact laws that co-opt providers’ voices and force them to parrot anti-choice messaging.
The lawsuit, EMW Women’s Surgical Center v. Beshear, challenged HB 2, a 2017 law that requires pregnant people to undergo a mandatory ultrasound before obtaining abortion care. The law includes a “speech-and-display requirement,” which forces the physician performing the ultrasound to place the ultrasound images in the patient’s view, read a state-mandated script about the images, and play fetal heart tones if they are audible.
EMW Women’s Surgical Center argued this was a violation of their First Amendment rights. The Sixth Circuit disagreed.
In an opinion written by Trump-appointed Judge John K. Bush, a three-judge panel of the Sixth Circuit upheld the law, adding to a longtime circuit split on the issue. (In 2012, the Fifth Circuit upheld the speech-and-display requirement in Texas’s forced ultrasound law in a case called Texas Medical Providers Performing Abortion Services v. Lakey. Two years later in Stuart v. Camnitz, the Fourth Circuit struck down the speech-and-display requirement in North Carolina’s forced ultrasound law. And thus a circuit split was born.)
Because the Supreme Court prefers uniformity of laws, it will usually take a case like EMW Women’s Surgical Center in order to “resolve the circuit split,” which means making sure that lower courts are uniform in their application of federal law. Keeping in mind that it only takes four votes for the Supreme Court to take a case, the fact that it declined to take EMW Women’s Surgical Center and resolve the circuit split indicates that the four liberal justices don’t trust the conservative wing of the court to protect abortion providers’ free speech rights.
As my colleague Jessica Mason Pieklo wrote, it “signals that the liberal block of justices decided it was better to let a devastatingly wrong decision stand and a lingering court split on the First Amendment rights of abortion providers fester than to have the full Roberts Court weigh in.”
Since the Court decided not to take the case, lawmakers in at least four states—Iowa, Maryland, Mississippi, and Missouri—have introduced bills that mirror the Kentucky anti-choice legislation. The laws contain the same speech-and-display requirements that mandate doctors display and describe the images of an ultrasound to a patient prior to performing an abortion, even if the patient objects and even if the doctor believes the forced ultrasound will harm the patient.
Even if the patient averts their eyes, covers their ears, and asks the doctor to stop, the doctor is required to press forward. The laws don’t punish a patient who covers their ears and eyes in order to avoid hearing the information being foisted upon them—because these states apparently like to dress up cruelty towards pregnant people as benevolence—but doctors who don’t comply with the law face stiff penalties.
If you’re thinking to yourself, “How can a state force a person to say something? That’s messed up!”—you’re right. It is messed up. It’s also an unconstitutional infringement on abortion providers’ First Amendment right not to parrot the state’s anti-abortion ideology.
As U.S. District Court Judge Sam Sparks, who struck down Texas’ forced ultrasound law only to see a three-judge panel of the Fifth Circuit resurrect it, aptly put it: “It appears the panel has effectively eviscerated the protections of the First Amendment in the abortion context.” He astutely noted that “in no other medical context does the government go so far in telling doctors what they must, and must not, do.”
Abortion care providers are private citizens who have First Amendment rights. It seems ludicrous that this even needs to be said, but it is important to recognize that anti-choice lawmakers have disregarded this important fact. These laws compel abortion providers to deliver state messages. But anti-choice lawmakers don’t much care about free speech when it comes to providers. Yet when it comes to the free speech rights of anti-choice clinics—commonly known as “crisis pregnancy centers”—suddenly they can’t get enough of the First Amendment. After all, they made a huge stink in NIFLA v. Becerra about California’s Reproductive FACT Act, which required anti-choice clinics to post straightforward written disclosures, including disclosures by unlicensed pregnancy centers that they are not medical facilities and do not offer medical care.
Opponents of the FACT Act raised hell, which culminated in conservatives on the Supreme Court striking the law down as a First Amendment infringement.
Given the Court’s ruling in NIFLA, the Kentucky case should have been a no brainer.
Unlike the mandatory written disclosures in NIFLA, which the Supreme Court said violated anti-choice clinics’ free speech rights even though the disclosures didn’t require clinic staff member to utter a single word, the mandatory disclosures in the Kentucky law—and in the laws that Missouri, Maryland, Mississippi, and Iowa are trying to pass—are verbal. They compel doctors to speak.
How can it be that anti-choice pregnancy centers, which cosplay as clinics and whose staff cosplay as doctors, can’t be required to post signs disclosing that they are not medical centers and do not offer medical care, but abortion providers can be compelled to voice the state’s preference for childbirth over abortion care?
I wish I had an answer to that question. There’s no legal reason for it. And there’s no logical reason for it. Apparently, according to lawmakers in Kentucky and the states following in Kentucky’s footsteps, the level of First Amendment protection people who provide pregnancy-related care enjoy depends on whether their services includes abortion care.