920 F.3d 421
6th Cir.2019Background
- Kentucky’s "Ultrasound Informed Consent Act" (H.B. 2) requires, before an abortion, that a physician perform an ultrasound, display the images, describe them to the patient, and auscultate the fetal heartbeat (patient may decline to view or hear). Noncompliance exposes physicians to fines and medical-board referral.
- EMW Women’s Surgical Center and its physicians sued state officials asserting that H.B. 2 unconstitutionally compels physician speech in violation of the First Amendment; the district court granted summary judgment to EMW and permanently enjoined the law.
- On appeal the Sixth Circuit panel considered Supreme Court precedents (notably Planned Parenthood v. Casey and NIFLA) addressing compelled professional speech and informed-consent rules for abortion.
- The majority held that informed-consent requirements that are truthful, non-misleading, and relevant to a medical procedure are regulations of professional conduct (incidental burdens on speech) and are not subject to heightened First Amendment scrutiny; it reversed the injunction and found H.B. 2 constitutional under that framework.
- The panel also held Kentucky’s Attorney General Andrew Beshear is not a proper defendant because enforcement authority lies with local prosecutors and the AG had not threatened enforcement.
- Judge Donald dissented, arguing H.B. 2 is not part of the medical practice of informed consent (it eliminates physician discretion, contradicts standards of care, and causes patient harm) and thus should receive heightened First Amendment scrutiny and be invalidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether H.B. 2 unconstitutionally compels physicians to speak in violation of the First Amendment | EMW: statute compels ideological speech, interferes with doctor‑patient relationship, and causes emotional harm to patients | State: law regulates abortion as medical procedure; disclosures are truthful, non‑misleading, and relevant; Casey and NIFLA permit such informed‑consent regulation and no heightened scrutiny applies | Reversed district court; H.B. 2 does not violate physicians’ First Amendment rights because the mandated disclosures are truthful, non‑misleading, relevant and incidental to regulation of medical conduct |
| Whether the required ultrasound/display/describe/auscultation falls within the practice of medicine such that deferential review applies | EMW: H.B. 2 is not coterminous with medical informed consent, eliminates physician discretion, conflicts with medical standards of care | State: sonogram/heartbeat disclosures convey objective facts relevant to abortion decisions and are materially similar to Casey disclosures; statute contains exceptions and patient may decline to view/hear | Majority: the statute relates to a medical procedure and requires truthful, relevant, non‑misleading information—so it is an incidental regulation of professional conduct (no heightened scrutiny) |
| Whether emotional or clinical harms alleged by plaintiffs make the statute unconstitutional | EMW: evidence (physician and patient testimony) shows mandated procedure can harm patients and does not facilitate informed consent | State: emotional impact does not change the First Amendment test; Casey allows disclosures even if they may persuade toward childbirth; the record did not require weighing harms at summary judgment | Held: emotional effects do not transform truthful, relevant disclosures into constitutionally protected forbidden compelled speech under Casey/NIFLA; not material to First Amendment holding |
| Whether Attorney General Beshear is a proper defendant (Eleventh Amendment / Ex parte Young) | EMW: AG is chief law officer and can enforce the statute so he is a proper defendant | Beshear: enforcement is vested in local Commonwealth’s and county attorneys; AG has no imminent threat or special enforcement duty here | Held: AG is not a proper party and should be dismissed; local prosecutors, not the AG, have enforcement responsibility |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (U.S. 1973) (establishes constitutional right to choose abortion)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (U.S. 1992) (upheld certain abortion informed‑consent disclosures; held physician speech may be regulated as part of the practice of medicine)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. 2018) (clarified that regulations of professional conduct that incidentally burden speech receive lower scrutiny and limited the reach of compelled‑speech doctrine)
- Gonzales v. Carhart, 550 U.S. 124 (U.S. 2007) (recognized state interests related to unborn life and upheld certain abortion regulations)
- West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (U.S. 1943) (compelled speech precedent)
- Wooley v. Maynard, 430 U.S. 705 (U.S. 1977) (compelled display of state motto held unconstitutional)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (U.S. 1995) (private speakers cannot be forced to convey messages contrary to their views)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (permitted compelled commercial disclosures that are factual and non‑misleading)