EMW Women’s Surgical Center v. Beshear


The ACLU and the ACLU of Kentucky filed suit on behalf of a group of abortion providers challenging HB 2, a law that requires a woman to undergo a mandatory ultrasound procedure—including a “speech-and-display requirement” that requires the physician to place the ultrasound images in the patient’s view and read a state-mandated script about the images even if the patient does not want to see the images or hear the description. The law also requires the physician to use a ultrasound transducer or fetal heart rate monitor to in order for the patient to hear the heartbeat, if audible.

Plaintiffs allege that the law violates the First Amendment by forcing them to deliver unwanted government-mandated speech; in particular, the law forces physicians to convey information that falls outside the accepted ethical standards and practices for medical informed consent.

Plaintiffs also allege that HB 2 violates the right of their patients to equal protection as guaranteed by the Fourteenth Amendment because it subjects women to an unethical informed consent requirement and because it is based on sex-stereotypes about women’s decision-making capacity.

And Plaintiffs allege that HB 2 subjects their patients to unreasonable search and seizure in violation of the Fourth Amendment.

As the ACLU explained:

The law requires that the doctor show and narrate ultrasound images even if the woman averts her eyes or asks the doctor to stop. According to expert testimony presented in the lawsuit, the law violates basic principles of medical ethics and of informed consent by compelling doctors to dismiss patient’s objections.

Notably, the law provides no exception for circumstances where the doctor believes the ultrasound will have a traumatic effect on patients, including for women who became pregnant as a result of rape or incest or who face a medical condition or a fetal anomaly.

In Stuart v. Camnitz, the Fourth Circuit Court of Appeals struck down a similar law, HB 854, that North Carolina passed in 2014.

STATUS

On September 27, 2017, U.S. District Court Judge David Hale struck down HB 2, stating that the law violated the First Amendment rights of physicians.

KEY DOCUMENTS

**last updated January 11, 2018


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