Earlier this week, the U.S. Supreme Court refused to consider an appeal challenging a 2017 Kentucky law that requires medical providers to perform a narrated “transvaginal ultrasound” on all patients seeking abortion care, and which makes no provision for either patients or providers to opt out. The ACLU filed the lawsuit on behalf of Kentucky’s only abortion care provider, and the Supreme Court’s decision means the law will remain in place. Currently, Kentucky’s forced narrated ultrasound law is one of four in effect. Similar laws passed in North Carolina and Oklahoma were previously struck down by the courts.
While progressives have often viewed the federal courts, particularly the Supreme Court, as the last best safeguard for the protection of people’s rights, the Court’s newly-cemented conservative majority has sent a message that they will look away as states’ anti-choice legislators continue to chip away at the availability of abortion care. As a result, the work of state-level pro-choice legislators and organizers has taken on increased urgency.
“Now, with the courts stacked against us at even the highest level, we must elect representation that will stand up to these ideological agendas and protect our rights and freedoms,” said Nicole Erwin, communications manager for Planned Parenthood of Indiana and Kentucky.
“This [law] is just another attempt to shame and stigmatize patients away from a decision to terminate a pregnancy. Mandating that a pregnant person view an ultrasound is not about health care,” Erwin said.
Indeed, the forced narrated ultrasound law directly contravenes the expert opinions of practitioners in bioethics, obstetrics, and gynecology.
“The Kentucky law reflects a complete misunderstanding of informed consent, turning it into something that has never existed in the long history of the concept,” Ruth Fader of the Johns Hopkins Bermen Institute of Bioethics wrote in the LA Times. “The law forces physicians to defy their professional ethical duties and contravene the trust that is essential in a doctor-patient relationship. It represents a state-mandated violation of ‘do no harm.’”
Fader was one of 130 bioethics experts who submitted an amicus brief in support of the ACLU-led challenge to the law. The American College of Obstetricians and Gynecologists, the American Medical Association, the North American Society for Pediatric and Adolescent Gynecology, the American College of Osteopathic Obstetricians and Gynecologists, and the American Academy of Family Physicians also submitted a brief arguing against the ultrasound mandate.
As challengers have pointed out, forced narrated ultrasounds like those required by Kentucky’s law “undermine a key provision of [landmark 1992 Supreme Court decision] Planned Parenthood v. Casey, which prohibits regulations that pose an ‘undue burden’ on a woman’s constitutional right under Roe v. Wade to choose an abortion.”
Erwin says that it is “critical” to elect legislative advocates who understand these issues. In Kentucky, State Representative Attica Woodson Scott (KY-41) is one legislator who fought against the law.
“It was one of the hardest things that I had to do to stand up and speak in opposition to this bill,” she said, reflecting on the January 2017 Kentucky House vote on HB2. At the time, Scott was a newly elected legislator—the vote took place on her third day at the Capitol. Although the fight against HB2 has been an uphill battle, Scott says it is a reminder of why she got into elected service.
Scott argues legislators have a “calling” not just to cast the right vote, but to ensure constituents are informed about these issues.
“I believe . . . it’s our responsibility to be mindful of where are people getting their information from,” she said. Scott says that it’s important for people to ask, “where are people? Where are the natural spaces where people are gathering where we can go and ask for some time and space to address folks about some of these issues?’”
In particular, Scott pointed out the need for informed constituency groups to help raise awareness about “some of the most hurtful and heinous decisions that are being made in our state legislative bodies.”
State level advocates and organizers also have an important role to play. Like Scott, Meg Sasse Stern, the support fund director of the statewide reproductive justice nonprofit Kentucky Health Justice Network emphasized the importance of keeping people informed of the facts regarding abortion care availability. Particularly in Kentucky, Stern said, a state with only one abortion provider and other legal and tangible barriers to abortion access, misinformation and the presence of fake clinics represent an “active barrier to care.” To combat such misinformation and other barriers, the Kentucky Health Justice Network provides education, advocates for pro-choice policy, and conducts community outreach, all in addition to providing direct financial support to people seeking abortions.
UPDATE: An earlier version of this article incorrectly stated the Kentucky forced narrated ultrasound law was the only such law in effect. It has been updated to reflect that KY is one of four states, including Wisconsin, Louisiana, and Texas.