In January 2017, the Kentucky legislature passed, and Governor Matt Bevin signed into law, a bill requiring all doctors performing abortions to make ultrasound imagery and the sound of the fetal heartbeat available to women who were contemplating killing their babies. Though the doctor–and I use that term for these butchers advisedly–must offer this to the women, the women had the right to refuse to either look at the image or listen to the heartbeat. EMW Women’s Surgical Center, Kentucky’s only abortion provider, sued claiming all manner of horrible things would happen…like the mother would decide to keep the child and EMW Women’s Surgical Center wouldn’t get paid.

An Obama-appointed judge, David Hale, ruled the law was unconstitutional. Hale is noted for allowing a lawsuit to proceed against President Trump because, during a March 2016 campaign rally in Louisville, KY, he repeatedly said, “get ’em out of here” while pointing at anti-Trump protesters. The protesters claim they were assaulted as they left.

“In the context of abortion, laws like H.B. 2 are designed to convey the state’s ideological, anti-abortion message,” he wrote. “Such laws go well beyond the basic disclosures necessary for informed consent to a medical procedure.” The 30-page ruling continues, “H.B. 2 is intended to dissuade women from choosing abortion by forcing ultrasound images, detailed descriptions of the fetus, and the sounds of the fetal heartbeat on them, against their will, at a time when they are most vulnerable.” … Judge Hale cited testimony from a March evidentiary hearing in his opinion, which found that the clinic’s compliance with H.B. 2 had caused its patients distress. “Although [patients] may attempt to avoid listening to the fetal heartbeat and ultrasound description,” he wrote, “it is impossible for patients to entirely drown out the sounds. During the process mandated by H.B. 2, patients are ‘very upset,’ ‘crying,’ and even ‘sobbing.’” … “It is impossible to say that H.B. 2 is intended to better inform women considering an abortion when it also permits women to cover their eyes and ears in order to avoid receiving the information the Commonwealth intends for them to receive,” Hale wrote. … In his conclusion, Hale cited testimony from the clinic’s experts, who explained that ultrasounds and fetal-heartbeat monitoring are always available at the request of a patient, and that “in the nearly three months since H.B. 2 took effect, not a single EMW patient decided against an abortion as a result of viewing an ultrasound image or hearing an ultrasound description and the fetal heartbeat.”

Kentucky appealed to the Sixth Circuit. Today a three-judge panel (one judge each from Trump, Obama, and Reagan) heard the case and, by a 2-1 vote, reversed the decision.

The case was argued before a Sixth Circuit panel last July. U.S. Circuit Judge John K. Bush, an appointee of President Donald Trump, authored the court’s majority opinion Thursday. Judge Bush relied heavily on the U.S. Supreme Court rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and National Institute of Family and Life Advocates v. Becerra (2018), and determined that because the disclosures required by HB 2 provide “truthful, non-misleading, and relevant information about an abortion,” the bill does not violate a doctor’s free speech rights. “In both NIFLA and Casey,” the judge wrote, “the court clarified that the First Amendment has a limited role to play in allowing doctors to avoid making truthful mandated disclosures related to informed consent.” Bush wrote that HB 2 “provides relevant information” that “gives a patient 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,” he continued. “That this information might persuade a woman to change her mind does not render it suspect under the First Amendment. It just means that it is pertinent to her decision-making.” EMW argued that the “negative emotional effect” of the forced ultrasound renders HB 2 unconstitutional, but Judge Bush disagreed, once again citing Casey. “Although the Casey district court’s findings as to emotional effect was quoted by Planned Parenthood in its brief to the Supreme Court, the controlling opinion in Casey did not make any note of this finding in its analysis of the doctors’ First Amendment challenge,” he wrote. Bush concluded, “Casey thus implicitly recognized that discomfort to the patient from the mandated disclosure of truthful, non-misleading, and relevant information does not make an informed-consent law invalid under the First Amendment.”

Holy Crap. Did that judge just say the feelings don’t matter?

On the legal side, the rule of law was restored and the low-level guerilla war progressive judges have been carrying out against pro-life legislation has come to a screeching halt in another federal circuit.

“there nothing suspect with…requiring a Dr, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion” — Undercover Huber (@JohnWHuber) April 4, 2019

Sixth now joins Fifth and Eighth circuits as holding that requiring doctors as part of professional regulations to issue truthful, non-misleading and relevant information is not a 1st amendment violation — Undercover Huber (@JohnWHuber) April 4, 2019

The reaction from the left, though, was delicious. The Obama appointee had a figurative aneurysm. Her dissent was nearly as long as the majority decision and it reeks of bowel leakage.

Judge Bernice Bouie Donald is not messing around. This is the end of her dissent in the Sixth Circuit's decision today upholding a state requirement that doctors play ultrasounds for patients before performing abortions. https://t.co/6Wl6ZQtVPB pic.twitter.com/qR6DzDeGPL — Sasha Samberg-Champion (@ssamcham) April 4, 2019

As they say: Womp! Womp!

This is how one of the clowns at Slate describes it:

Donald's dissent seems exactly right to me—it is bizarre that Bush evaluated the law under Casey's undue burden standard instead of a compelled speech standard. By doing so, Bush ducked all the tough First Amendment issues here and rubber-stamped the law. — Mark Joseph Stern (@mjs_DC) April 4, 2019

What’s equally amazing is that a guy who has never practiced appellate law is critiquing guys who are doing it professionally. But he’s been out of law school for a couple of years so he’s probably the authority.

For those keeping score: California can't compel unlicensed "crisis pregnancy centers" to disclose their lack of a license, but Kentucky can compel abortion providers to perform an ultrasound on patients and describe the fetus. Our First Amendment in action. — Mark Joseph Stern (@mjs_DC) April 4, 2019

Apparently, he never bothered reading the SCOTUS decision he’s criticizing because it doesn’t say that.

I wrote about this absolutely appalling ruling, which—it should be noted—will require many women to undergo transvaginal ultrasounds: https://t.co/ljyEd06LRz @Slate — Mark Joseph Stern (@mjs_DC) April 4, 2019

This was a superlative ruling. It puts three federal circuits in agreement on the issue. It aligns the reasoning with Casey. If the case makes it to the Supreme Court…and I doubt that there will be an appeal because the infanticide industry would not want this to become the law of the land…the ruling will stand. Having the left squirting blood from every orifice is just a bonus.

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