United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. HALE, JUDGE.
January 2017, the Kentucky General Assembly hastily passed
the Ultrasound Informed Consent Act, referred to as House
Bill 2 (H.B. 2). (Docket No. 1-1) Although Kentucky already
had a comprehensive informed-consent law pertaining to
abortions, Ky. Rev. Stat. § 311.725, H.B. 2 amended the
existing law to require physicians to perform an ultrasound
prior to an abortion procedure; display and describe the
ultrasound images; and auscultate, or make audible, the fetal
heartbeat. Physicians must comply with these requirements
even if a woman does not want to receive the information and
chooses to avert her eyes and cover her ears.
are the only licensed abortion clinic in Kentucky and its
three doctors, who provide abortions and other health
services. Defendants are various state government officials.
Plaintiffs challenge the constitutionality of H.B. 2,
primarily arguing that the law violates their rights under
the First Amendment by compelling ideological speech. The
Commonwealth argues that the law is within the
Commonwealth's authority to regulate the practice of
similar “speech-and-display” ultrasound laws have
been challenged in states outside the Sixth Circuit. The
Fifth Circuit upheld Texas's speech-and-display
ultrasound law in Texas Medical Providers Performing
Abortion Services v. Lakey, 667 F.3d 570 (5th Cir.
2012). Within a year of Lakey, the Supreme Court of
Oklahoma concluded that Oklahoma's speech-and-display
ultrasound law was facially unconstitutional. See Nova
Health Sys. v. Pruitt, 292 P.3d 28 (Okla. 2012) (per
curiam). In Stuart v. Camnitz, 774 F.3d 238 (4th
Cir. 2014), the Fourth Circuit explicitly disagreed with
Lakey, holding that North Carolina's
speech-and-display ultrasound law violated the First
Amendment. The main reason for these differing outcomes rests
on how the various courts interpreted a single paragraph in
Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992).
the Fourth Circuit's reasoning persuasive, the Court
concludes that H.B. 2 violates the First Amendment. Like the
Fourth Circuit, the Court recognizes that states have
substantial interests in protecting fetal life and ensuring
the psychological well-being and informed decision-making of
pregnant women. See Stuart, 774 F.3d at 250.
However, H.B. 2 does not advance those interests and
impermissibly interferes with physicians' First Amendment
rights. The Court will therefore enjoin enforcement of H.B.
to H.B. 2, the informed-consent process for abortion in
Kentucky was governed by Ky. Rev. Stat. § 311.725. This
statute required that, at least twenty-four hours before an
abortion was performed, a woman receiving an abortion must be
informed of the following:
• the nature and purpose of the abortion procedure to be
performed as well as the medical risks and alternatives to
the procedure that a reasonable patient would consider
material to the decision of whether or not to undergo the
• the probable gestational age of the fetus;
• the medical risks associated with carrying the
pregnancy to term;
• the availability of printed materials published by the
Cabinet for Health and Family Services that she has a right
to view free of charge if she so chooses;
• the potential availability of medical assistance
benefits for prenatal care, childbirth, and neonatal care;
• the liability of the father of the fetus to assist in
the support of her child.
Ky. Rev. Stat. § 311.725(1)(a)-(b).
Cabinet materials referred to in § 311.725 contain two
general types of information. The first concerns alternatives
to abortion, such as adoption. Ky. Rev. Stat. §
311.725(2)(a). A list of various agencies and the services
those agencies offer is provided. Id. These
materials also contain information on medical assistance
benefits for prenatal care, childbirth, and neonatal care, as
well as information on the father's child-support
obligations. Id. The second type of information is
“objective and nonjudgmental” scientific and
medical information about fetal development. §
311.725(2)(b). The materials inform the reader of the
“probable anatomical and physiological
characteristics” of the embryo or fetus at two-week
gestational increments for the first sixteen weeks and at
four-week gestational increments thereafter. Id. For
each stage, the materials must contain a pictorial
representation and some other image for scale to reflect the
actual size of the fetus. Id.
providers challenged these regulations in Eubanks v.
Schmidt, 126 F.Supp.2d 451 (W.D. Ky. 2000). The
plaintiffs in Eubanks sought to enjoin enforcement
of § 311.725 on behalf of themselves and their patients.
Id. at 453. The plaintiffs first argued that the
requirements placed an undue burden on a woman's right to
an abortion, particularly for those “who must travel
long distances, who have few financial resources, and who
have difficulty explaining their absence to employers,
spouses, or others.” Id. at 454. This Court
concluded that the statute did not place an undue burden on
women seeking an abortion in Kentucky. See Id. at
plaintiffs in Eubanks also challenged the law on
First Amendment grounds, arguing that it “compel[led]
them to pay for and distribute ideological speech with which
they disagree[d].” Id. at 457. Recognizing the
brevity of the Supreme Court's disposition of the First
Amendment claims in Casey,  Judge Heyburn reasoned that
“[i]f Kentucky's pamphlets and the resulting
infringement on speech are legally indistinguishable from
those presented in Casey, then Casey
controls.” Id. at 459. Judge Heyburn found
that the information provided in Kentucky's pamphlets was
“quite similar” to the information provided in
Casey. Id. He concluded that “distributing
these pamphlets is a reasonable measure to insure adequate
informed consent in all cases of abortion.”
Id. at 460 (citing Casey, 505 U.S. at
882-83). Because the content of the Kentucky pamphlet was
similar to that in Casey, it fell within “the
constitutional limits for which Casey stands.”
Kentucky's existing informed-consent laws, H.B. 2 was not
accompanied by any legislative findings. See Ky.
Rev. Stat. Ann. § 311.710 (containing the General
Assembly's legislative findings in support of §
311.725). H.B. 2 imposes additional requirements upon
abortion providers and women seeking abortions. Prior to a
woman giving informed consent to an abortion, H.B. 2 requires
a physician to
• perform an obstetric ultrasound on the woman;
• give a simultaneous explanation of what the ultrasound
• display the ultrasound images so that the woman may
• auscultate the fetal heartbeat so that the woman may
• provide a medical description of the ultrasound
• retain signed certification from the woman that the
above information was given.
H.R. 2, 2017 Gen. Assemb., Reg. Sess. (Ky. 2017). The only
exception to these requirements is for medical emergencies.
Id. H.B. 2 further states that “nothing in
this section shall be construed to prevent the pregnant woman
from averting her eyes from the ultrasound images or
requesting the volume of the heartbeat be reduced or turned
off.” Id. No penalty is imposed on a woman who
refuses to look at the ultrasound images or listen to the
heartbeat. Id. However, physicians who violate the
requirements are subject to penalties including fines of up
to $100, 000 for the first offense and $250, 000 for each
subsequent offense. Id. Further, courts are to
report any violation to the Kentucky Board of Medical
Licensure for whatever action or discipline the Board deems
H.B. 2 contained an emergency clause, it became effective
immediately once signed by the governor. Plaintiffs filed
this action (D.N. 1) and moved for a temporary restraining
order to temporarily block enforcement of H.B.
(D.N. 3) The Court held an evidentiary hearing on March 23,
2017, on Plaintiffs' motion for temporary restraining
order.The parties agreed to advance the trial on
the merits and consolidate it with the March 23, 2017 hearing
pursuant to Rule 65(a)(2) of the Federal Rules of Civil
Procedure. (D.N. 53) The parties then filed cross-motions for
summary judgment, which are now before the Court. (D.N. 58;
D.N. 59; D.N. 60; D.N. 62)
order to grant a motion for summary judgment, the Court must
find that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The moving party bears the
initial burden of identifying the basis for its motion and
the parts of the record that demonstrate an absence of any
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
satisfies this burden, the non-moving party must point to
specific facts demonstrating a genuine issue of fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); see Fed. R. Civ. P. 56(c)(1).
“[O]n cross-motions for summary judgment, ‘the
court must evaluate each party's motion on its own
merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.'” B.F. Goodrich Co. v. U.S.
Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001) (quoting
Taft Broad. Co. v. United States, 929 F.2d 240, 248
(6th Cir. 1991)). The Court concludes that there is no
genuine dispute of material fact in this case.
argue that H.B. 2 violates their First Amendment rights
because it compels them to deliver the state's
ideological, anti-abortion message to their patients. (D.N.
60-1, PageID # 903) But for H.B. 2, Plaintiffs would not
force ultrasound images, detailed descriptions of the
fetuses, or the sounds of the fetal heartbeat on abortion
patients who do not wish to hear the descriptions or
heartbeat or see the images. (Id., PageID # 904)
Plaintiffs assert that because H.B. 2 compels ideological,
content-based speech, it necessarily triggers at least
intermediate scrutiny, which it cannot survive.
(Id., PageID # 903, 910) Intermediate scrutiny
requires the state to prove that “the statute directly
advances a substantial governmental interest and that the
measure is drawn to achieve that interest.” Sorrell
v. IMS Health, Inc., 564 U.S. 552, 572 (2011) (citing
Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492
U.S. 469, 480-81 (1989); Central Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557,
Commonwealth maintains that H.B. 2 is constitutional because
states have the right to regulate the practice of medicine.
(D.N. 62-1, PageID # 1820) It argues that H.B. 2 is subject
to rational basis review, which requires only that the
statute “bear some rational relation to a legitimate
state interest.” Craigmiles v. Giles, 312 F.3d
220, 223 (6th Cir. 2002) (citing Romer v. Evans, 517
U.S. 620, 632 (1996)). But the Commonwealth adds that H.B. 2
could survive even intermediate scrutiny, as the law merely
requires physicians to disclose truthful, non-misleading, and
relevant information. (D.N. 62-1, PageID # 1825, 1835)
Court's analysis will begin with a discussion of relevant
authority, including those cases forming the circuit split
over the constitutionality of speech-and-display ultrasound
laws. Next, the Court will explain that the Fourth
Circuit's intermediate-scrutiny approach is appropriate
because H.B. 2 compels ideological speech. The Court will