A federal appeals court decision undermines informed-consent conversations between Kentucky physicians and patients seeking abortions, forcing doctors to violate medical ethics by providing medically unnecessary information that could be harmful for some patients.
In a 2–1 decision, the 6th U.S. District Court of Appeals in Cincinnati upheld Kentucky’s Ultrasound Informed Consent Act, despite a joint AMA and American College of Obstetricians and Gynecologists (ACOG) amicus brief advising the court of these concerns and informing judges that the statute “serves no medical purpose and should be invalidated.”
Unless it is a medical emergency, Kentucky’s law requires a physician to make the fetal heartbeat audible, display ultrasound images and describe them to the patient—pointing out organs, for example—before the woman can consent to the procedure. If the patient says she doesn’t want to see or hear the information, the physician still must share it or face fines and a referral to the state medical licensing board.
The woman can turn her head away from the image, ask the physician to turn off the sound or cover her ears. The law doesn’t penalize a physician for telling the patient she doesn’t have to listen or view the screen, or for advising the patient to have an abortion.
In its ruling in EMW Women’s Surgical Center v. Beshear, the majority said the statute is legal because “the disclosure of truthful, nonmisleading and relevant information about an abortion … does not violate a doctor’s right to free speech under the First Amendment.” The surgical center and its physicians challenged the law, saying it did violate doctors’ First Amendment rights.
The majority of the three-judge panel wrote that “the information conveyed by an ultrasound image, its description and the audible beating fetal heartbeat 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. 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.”
The AMA brief called into question that line of thinking.
“The fact that a woman can close her eyes and cover her ears, yet still consent to an abortion, belies [the commonwealth’s] claim that the Act conveys any necessary medical information at all. It is proof that the ultimate goal is to convey [the commonwealth’s] particular speech—whether or not the patient receives the message—rather than to provide medically necessary information for her to consent to the procedure,” the brief told the court.
In May, the AMA joined ACOG in filing an amicus brief in the U.S. 6th Circuit Court of Appeals. The brief argues that the 6th Circuit’s decision to defer to the Kentucky legislature’s determination of informed consent without regard for the expertise of the medical community “erodes the informed consent process from the perspective of both the patient and the physician” and is against precedent established in Planned Parenthood of Se. Pennsylvania v. Casey and Gonzales v. Carhart.
The April decision reverses a lower court opinion and sets up a situation where federal appellate courts have ruled differently on similar statutes. The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in 2014 struck down a North Carolina ultrasound-display law that was substantially similar to the Kentucky law.
This split in the courts makes it more likely that the U.S. Supreme Court will take up the case.
Circuit Judge Bernice Bouie Donald disagreed with the majority’s case law interpretation, saying Kentucky’s act should be struck down.
She quoted the AMA brief when arguing the law doesn’t facilitate informed consent, saying “the ethical doctrine of informed consent is ‘rooted in the concept of self-determination and the fundamental understanding that patients have the right to make their own decisions regarding their own bodies.’”
She also included text from the AMA Code of Medical Ethics opinion 2.1.1, which, in part, directs physicians to “present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information.”
Donald said she was “gravely concerned” with the precedent the majority created, concluding that it “coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician.”