by Brendan Beery & Dan Ray

CNN reports the following anti-abortion legislation from Kentucky:

House Bill 2 requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion.

The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

HB2 passed the House with an 83-12 vote and passed the Senate by a vote of 32-5.

Senate Bill 5 prohibits abortions in the state at or after 20 weeks of pregnancy. The bill would not apply in cases where an abortion is required to save the life of the mother or prevent serious risk of bodily harm to the mother, but it does not contain exceptions for cases of rape or incest.

There are many infirmities in this proposal from a political, philosophical, and intellectual standpoint, but we’ll focus on the two big constitutional problems presented by this soon-to-be law. We note at the outset that the proposed legislation flies in the face of any concern for fiscal conservatism. As it stands now, the law has no chance of surviving in court, but that hasn’t stopped the Republican legislature from inviting the massive expense Kentucky taxpayers will underwrite to defend the indefensible. The amount of money Republican state governments have thrown away defending unconstitutional laws in this century has to be staggering.

  1. The 20-week threshold is invalid.

The Supreme Court has ruled that a state may not ban abortion procedures that occur before the point of viability. As we’ve written in prior posts, we’re not medical professionals, but people who are medical professionals have said that the point of viability for a human fetus – meaning the point at which the fetus could survive outside the womb without extraordinary medical intervention – is some time after the 23rd or 24th week of pregnancy, at the earliest.

So this is just a matter of math. Kentucky’s legislature seeks to ban abortions at week 20, and last time we checked, 20 came before 23 or 24. So this a pre-viability ban, and judicially speaking, it’s dead on arrival.

The exception for the life or health of the mother doesn’t save the ban from constitutional invalidity. All bans on abortion procedures (with one exception that doesn’t apply here) must provide for the availability of abortion procedures when they’re necessary to save the life or preserve the health of the mother. The point is that there may be no such ban (even with those provisions protecting the mother) before the point of viability. Kentucky’s legislation could not provide a more obvious violation of this bright-line rule.

  1. The ultrasound requirement is a shaming mechanism rather than a medically necessary procedure.

The most recent Supreme Court abortion case was groundbreaking. The case was Whole Woman’s Health v Hellerstedt. In that case, the Court reaffirmed the following principles:

  1. That a state may ban a post-viability abortion procedure if it includes a provision to protect the health of the mother; and
  2. That as to pre-viability procedures, a state may not impose an “undue burden” on the right of a woman to terminate a pregnancy.

As to (2) above, the Court in Whole Woman’s Health tweaked the legal test a little bit. It used to be that courts would simply ask whether the burden imposed by a law restricting access to abortion procedures, without reference to any benefit that might be derived from such a restriction, placed a substantial (big) obstacle in the path of a woman who wanted to have an abortion. Under that standard, even if some burden on a woman’s right to terminate a pregnancy served essentially no purpose at all, it was nonetheless valid if the obstacle course it created for a woman seeking an abortion was merely cumbersome rather than insurmountable.

Whole Woman’s Health changed that standard. Under Whole Woman’s Health, a court must now analyze not just the burden (obstacle) placed on a woman seeking an abortion, but also whether the restriction imposed by the state provides any medical benefit. What was once a one-pronged test analyzing the weight of the burden is now a two-pronged balancing test. If the burden placed on a woman outweighs any benefit derived from the restriction, then the restriction is invalid.

This is a nifty test because it can be used to smoke out pretextual justifications for abortion restrictions. When a state claims to be protecting a woman from some harm by stopping her from making her own decision about whether to terminate a pregnancy, a court must now analyze whether the claimed benefit has any legitimate grounding in fact. Using this approach, the Court in Whole Woman’s Health struck down two provisions of a state law: 1) a requirement that physicians at abortion clinics have admitting privileges at nearby hospitals; and 2) a requirement that any abortion clinic have top-flight, emergency-room-level surgical facilities at the ready before any abortion procedures could be offered by the clinic.

The Court noted that, first, abortion clinics already had contracts with nearby hospitals requiring that those hospitals admit patients from the clinics in the event of any emergency, and, second, that no top-flight surgical facilities were required for the many abortion procedures that are non-surgical in nature (like, for example, the many procedures that involve nothing more than the instruction that the woman go home and take a pill).  Since the restrictions imposed by abortion restrictions provided no material benefit, the Court said, the jig is up: we know the real reason for the restrictions. They were imposed as gratuitous obstacles in the path of a woman who wants an abortion. Regardless of how weighty the burden (and since the restrictions were causing clinics to close down completely, those burdens were plenty weighty), the restrictions were unconstitutional because they provided no medical benefit.

Let’s apply these principles to the ultrasound requirement. Under the old standard, the only question would have been whether the requirement imposed a nearly insurmountable obstacle, and a court could have said that it did not. But under the new standard, a court also must also analyze the benefit derived from the restriction. And what possible benefit is there?

All that an ultrasound would confirm is that the woman seeking an abortion actually is pregnant (no kidding) and that the fetus has a heartbeat. Those are things that any woman wishing to have an abortion already knows. The only thing the ultrasound requirement accomplishes, then, is not the provision of additional useful information, but a sort of torturous exposition of visual and audio stimuli to which a woman must submit before exercising a constitutionally guaranteed right.

Keep in mind that although Kentucky purports to allow a woman not to see or hear the results of the ultrasound, it does not allow a woman to opt out of the ultrasound itself. Whether you want it or not, a stranger will place hands and instruments on your body and perform a medical procedure on you because the state in which you live seeks to stigmatize the choice you have made as immoral.

The opt-out provision, if it’s possible, seems even more odious than the ultrasound itself. The only way you can avoid the trauma of seeing or hearing that which you choose not to see or hear is to affirmatively avert your eyes from and ask not to hear the heartbeat of the fetus inside you. You must beg a stranger to allow you not to see or hear what the state wants you to see or hear – and thereby betray yourself as the uncaring and heartless human being that the state, collectively, has already concluded you are.

The very fact that a woman is permitted to look away and ask that the monitor next to her be muted shows that there is no medical benefit to the procedure. If it was medically necessary that a woman see and hear the fetus inside her before terminating her pregnancy, then she would not be allowed to look away or mute the program. So the jig is up: this isn’t about medicine or protecting the woman; it’s about a traumatic shaming imposed on a woman who wants to have an abortion by politicians who purport, ironically, to be against big, intrusive government meddling in the lives of citizens who just want to go about their business unmolested by Big Brother.

But Donald Trump is soon to be president, and Whole Woman’s Health hangs in the balance. We can expect many more of these kinds of laws, and if Trump gets to appoint more than just Scalia’s replacement to the Supreme Court, we can expect that laws like Kentucky’s will be the least of women’s worries.