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Analysis Abortion

Supreme Court Confirms There Is No Fifth Vote to Protect Abortion Rights

Jessica Mason Pieklo

This week, the U.S. Supreme Court let stand a court decision that dismissed as immaterial doctors' ethical concerns and equated an embryo with a person.

It only takes four votes for the U.S. Supreme Court to agree to take a case. That’s it. Not even a majority of the justices have to sign on for the Court to hear a case. Just four.

That threshold took on a new significance Monday when the Court announced it was denying a request from the American Civil Liberties Union (ACLU) to reconsider an appellate court decision that let Kentucky’s forced ultrasound law, HB2, take effect. The decision was announced without an explanation, just a one-line denial in the list of orders the Court released that day. But the justices didn’t need to offer any explanation for why they turned the case away.

The denial spoke for itself.

The Court’s refusal to take up the challenge signals that the liberal block of justices decided it was better to let a devastatingly wrong decision stand and a lingering circuit court split on the First Amendment rights of abortion providers fester than to have the full Roberts Court weigh in. It also signals that the Court’s conservative block is content to allow appeals courts to egregiously misinterpret abortion rights jurisprudence so long as those decisions advance anti-choice causes. None of those signs are good for abortion rights and access.

Sex. Abortion. Parenthood. Power.

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The Kentucky law at issue is an especially terrible version of the forced ultrasound laws enacted by Republican-held legislatures nationwide. HB 2 requires doctors to perform an ultrasound on a patient 24 hours prior to an abortion, mandates the provider to describe the images of that ultrasound, and forces the patient to listen to fetal heart tones during the procedure. Providers must perform these “speech and display” requirements even if their patient objects. If the patient tries to cover their ears or turn their head, HB 2 directs providers to carry on with the state-mandated script describing the ultrasound image over those objections. Often providers are required to use a transvaginal ultrasound to get images with sufficient detail to meet HB2’s speech and display requirements. 

Medical groups opposed the forced ultrasound law on the grounds that it violates both medical ethics and standards of care. Forcing patients to see images and hear descriptions over their objections and the judgment of their doctors is not just bad medicine, the providers claim, it’s a free speech violation. But a panel of Sixth Circuit judges disagreed, and in a 2-1 decision explained that speech and display requirements are simply part of the process for a provider obtaining a patient’s informed consent to their abortion and not part of an anti-abortion message. Therefore, the panel of judges ruled, Kentucky’s law does not violate the free speech rights of abortion providers. Sixth Circuit Court Judge John Bush, a Trump appointee, cast the deciding vote and authored the decision. 

“The information conveyed by an ultrasound image, its description, and the audible beating fetal heart gives a patient greater knowledge of the unborn life inside her,” Bush wrote for the panel. “This also inherently provides the patient with more knowledge about the effect of an abortion procedure: it shows her what, or whom, she is consenting to terminate.” 

Bush’s opinion drips with this anti-choice paternalism that forced ultrasounds are necessary because patients don’t know what they are doing when they seek an abortion. His opinion cites the myth of “abortion regret” cooked up by former Supreme Court Justice Anthony Kennedy to uphold the federal “partial-birth abortion” ban in Gonzales v. Carhart to further justify its conclusion that forcing patients to hear and see fetal images is both constitutional and sound medicine. 

As to objections the medical community had to mandate the disclosures over patient objections, Bush in his decision dismissed those objections not “material” to whether the disclosures should be considered part of informed consent. That’s right. According to Bush, the medical profession’s stated concerns that the Kentucky law actually perverts the informed consent process are not relevant and necessary for the court to deem HB 2 constitutional.

This is the decision the Supreme Court let stand on Monday, one that dismisses as immaterial doctors ethical concerns, one that equates an embryo with a person, and one that is at conflict with recent federal appeals court decisions on the topic. Letting this decision stand sends an ominous message about abortion and the Roberts Court. Quite simply, there is no fifth vote to affirm abortion rights. 

In March, the Roberts Court will hear oral arguments in June Medical Services v. Gee, the first abortion rights challenge to be argued before the Court with Justice Brett Kavanaugh on the bench. The case landed before the Court after the U.S. Court of Appeals for the Fifth Circuit went rogue and ruled a Louisiana admitting privileges law identical to a Texas anti-choice law the Roberts Court struck as unconstitutional three years ago in Whole Woman’s Health v Hellerstedt should be allowed to take effect. 

The Fifth Circuit decision allowing the law to take effect is bonkers. Like the Sixth Circuit decision to allow Kentucky’s ultrasound law to take effect, it is a willful misreading of abortion rights precedent. That Chief Justice John Roberts wasn’t willing on Monday to join his liberal colleagues and hear the Kentucky challenge in order to correct the Sixth Circuit’s decision that is out of bounds from other precedent does not bode well for an outcome in June Medical Services that unequivocally affirms Whole Woman’s Health. 

This is what the future of abortion rights looks like at the Supreme Court with Kennedy gone. It’s an exercise by the liberal justices in harm reduction, a balancing of the damage done by allowing a wrong and dangerous opinion and policy to stand rather than grant their conservative colleagues an opportunity to weigh in and endorse it nationwide.

For the conservatives on the bench, it is an exercise in tempered acceleration. Conservative appeals courts stacked with Trump appointees have the ability to undermine abortion rights and access and the conservatives on the Supreme Court have no incentive to stop them.

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