Two years ago, Kentucky Gov. Matt Bevin (R) and his state’s Republican-led legislature approved a radical anti-abortion law. Under the measure, doctors who perform abortions are legally obligated to perform medically unnecessary ultrasound procedures and describe the on-screen images to women, in detail, before terminating an unwanted pregnancy.
Patients who object are required to – quite literally – shield their eyes and make noises to drown out the information physicians are forced to share.
A lower court ruled that the Kentucky law, among other things, obviously violates the First Amendment: politicians cannot instruct medical professionals to provide medically unnecessary information to their own patients. The private, doctor-patient discourse cannot and should not be dictated or regulated by politicians waging a culture war.
As the Courier-Journal in Louisville reported yesterday, the 6th Circuit Court of Appeals came to the opposite conclusion.
A federal appeals panel has upheld a 2017 Kentucky law requiring doctors who perform abortions to first perform an ultrasound and attempt to show and describe the image to the patient, as well as play an audible heartbeat of the fetus.
In a 2-1 vote, with Judge John Bush writing for the majority, the 6th U.S. Circuit Court of Appeals on Thursday struck down a lower court ruling that said the law known as House Bill 2 was unconstitutional because it violates the free speech rights of physicians.
Bush, in his opinion, rejected the opponents’ argument that forcing the physician to perform an ultrasound that may not be necessary and describe in detail the results to the patient is a violation of free speech rights.
“We hold that HB 2 provides relevant information,” Bush wrote in his ruling. “The information conveyed by an ultrasound image, its description and the audible beating fetal heart gives a patient a greater knowledge of the unborn life inside her. 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.”
In other words, conservative politicians and judges, without medical training, feel justified dictating medical practices and instructions – because they say so.
But in this case, it’s worth pausing to note not only the offensive court ruling, but also its author.
If John Bush’s name sounds familiar, it’s because he was chosen for the federal appellate bench by Donald Trump. As regular readers may recall, senators were given plenty of reasons not to confirm him to a lifetime position. Dahlia Lithwick explained at the time:
Blogging under a pseudonym, the Kentucky lawyer wrote more than 400 posts for the website Elephants in the Bluegrass. His wide-ranging and unfiltered commentary has included, for instance, the claim that abortion and slavery are “[t]he two greatest tragedies in our country.” His blog posts have cited conspiracy theories and false information, including references to the claim that President Obama was not born in the United States.
In his Senate questionnaire, he described the vicious 1991 beating of Rodney King as a “police encounter.” As Eleanor Clift notes in the Daily Beast, he has also gone on record arguing that the Supreme Court made a bad ruling in the landmark freedom of the press case New York Times Co. v. Sullivan. In the Trump era, that’s a feature, not a bug.
Senate Republicans voted unanimously to confirm John Bush. Even the chamber’s ostensible GOP “moderates,” such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, voted to give Bush a lifetime position on the appellate bench.
Yes, yesterday’s ruling was just one case, which will be appealed. But it’s also emblematic of a larger truth: Trump and his Republican allies are changing federal judiciary, and Americans will be dealing with the consequences for many years.