Sight and sound: A US appeals court upholds use of technology to inform choice in abortion

Arthur Goldberg
May 1, 2019
Reproduced with Permission

The Sixth Circuit Court of Appeals, in EMW Women's Surgical Ctr. vs. Beshear et. al, recently decided that a statute is constitutional under Supreme Court precedents if it "requires the disclosure of truthful, non-misleading, and relevant information about an abortion." This important case, celebrated by pro-life advocates, upheld a Kentucky law requiring doctors to conduct an ultrasound, and thereafter offer to show and to explain to the patients the images taken, as well permitting the patient to hear the fetal heartbeat of the unborn life in utero, all at least 24 hours prior to having an abortion performed.

In its opening paragraph, the court unequivocally set forth the issues in the case:

"Under Roe v. Wade [citation omitted], a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient."

By emphasizing that the Roe v. Wade decision involved a right to choose an abortion rather than providing an absolute right to abort, the Court opined on the appropriateness of the state requiring a doctor to provide certain information in order to "inform that choice." It is worth noting that the opinion focuses on the obligation of the doctor to offer an explanation of the images within the ultrasound while recognizing that the patient is not obligated to either view the images or listen to the doctor's description thereof. Moreover, while the doctor must also offer the woman the right to hear her unborn child's heartbeat, there is no penalty if the patient requests the heartbeat sound be turned off.

By observing that "the information conveyed by an ultrasound image, its description, and the audible beating fetal heart gives a patient greater knowledge of the unborn life inside her," the Court determined that such "mandated disclosures" are relevant to the "patient's decision whether to abort an unborn life" because they are "the epitome of truthful, non-misleading information."

The Court also recognized that decisions of the Fifth and Eighth Circuit Court of Appeals supported its holding while the Fourth Circuit Court of Appeals disagreed. The Sixth Circuit opinion explained why it agreed with the Fifth and Eighth and disagreed with the Fourth.

Impact of viewing an ultrasound image

Does an ultrasound image of the unborn life being carried affect a woman's decision to abort? Pro-life advocates believe the answer is "yes." They further believe that a substantial percentage of women considering an abortion but then are able to see the child they are carrying in utero will choose to carry the child to term. It is for this reason that several pro-life organizations provide grants to pregnancy centers for ultrasound machines. On the other hand, those favoring the abortion option argue that "no peer-reviewed empirical data has supported this proposition that viewing an ultrasound image discourages women from abortion." If, however, there is no empirical data that viewing ultrasound images discourages abortion, it is curious why these same advocates strenuously fight, as they did in this case, against permitting expectant mothers to see the ultrasound image of the unborn life in utero. Their actions belie their arguments.

Indeed, in this Sixth Circuit Court of Appeals case, those opposing Kentucky's law argued that viewing such images and listening to the heartbeat would have a negative "emotional effect on patients." In refusing to uphold that argument, the court cited the Supreme Court's Planned Parenthood v. Casey decision, stating that Casey implicitly recognized "that discomfort to the patient from the mandated disclosure of truthful, non-misleading, and relevant information does not make [unconstitutional] an informed-consent law." Moreover, the Court pointed out that "because of its individualized nature, a sonogram provides even more relevant information for the patient's decision than any of the required materials at issue in Casey."

In the movie Unplanned, the former Planned Parenthood clinic director portrayed there explains how the policy of her clinic was to not show the ultrasound image to the potential mother, thus preventing any possibility of maternal bonding between the mother and her child. Rather, they utilized the ultrasound to determine the gestational age of the unborn life in utero in order to determine the amount to be charged for the abortion.

Because of a fear that mothers will change their minds about abortion after seeing their child in the womb via ultrasound, even some internet based crowd-funding sites have denied access to their platforms if a pro-life group sought to raise funds for an ultrasound machine. An example involved You Caring, a crowdfunding site started by three friends who identify themselves as former missionaries. They removed a pro-life campaign that sought funding for a new mobile ultrasound unit in Monroe, North Carolina (HELP Crisis Pregnancy Center), publicly stating that their decision to remove the campaign was based upon the belief that running such an appeal could potentially be too "divisive."

Heartbeat of an unborn child

Although several states have passed legislation to prohibit an abortion once the heartbeat of an unborn child is detected, the legislation challenged in this case simply provided the woman with the opportunity to hear the heartbeat rather than utilize the existence of such a heartbeat in the unborn child to prevent the woman from aborting the child. However, Kentucky passed a new law this past year, banning abortion after detecting an infant's heartbeat. That law was not involved in the present case and until a hearing is scheduled on the new law, a federal judge temporarily blocked that law from going into effect.

I have previously written about the growing movement to expand abortion bans from the moment an unborn child's heartbeat is detected. Pro-life proponents see such a ban as an alternative to the "viability" standard set forth in Roe v. Wade. They argue that detection of a fetal heartbeat is a "more consistent and certain market than viability." They are hoping to ultimately have the Supreme Court use the heartbeat standard to replace the viability standard of Roe.

A poll conducted by the Barna Group in 2017 evidences public support for the detection of a heartbeat as the critical factor in preventing the abortion of a child. Nearly 7 out of 10 Americans polled agreed on legally protecting an unborn life if the doctor is able to detect his or her heartbeat. They believe that once there is a beating heart, a separate living human being exists and thus should receive legal standing to survive.

Incorporating judicial advances into advocacy of the moral issue involved

A person does not have to be religious to understand that the unborn child from conception onward is a living human being; this is a scientific fact. However, twentieth century materialism and rationalism, combined with the population explosion scare, relativised the value of these immature, unseen children and made them expendable. In practice, it fell to those with religious faith to reject such materialistic premises and defend what was traditionally called "the sanctity of life".

Nevertheless, 60 million lives do not exist today because Roe v. Wade effectively created a right to abortion on demand across America. Because of its frequency and the sheer numbers, secular society became desensitized to the fact that procuring abortion is murder.

A leading theologian, Rabbi Norman Lamm, retired president of Yeshiva University, predicted even before the Roe v. Wade decision:

"The freedom of parents to crush prenatal life, which now seems to be in vogue, will eventually lead to utter destruction, because it is only a small leap of logic from foeticide to infanticide, to getting rid of infants who may not fulfill our ideals of mental and physical health, or eventually, ethnic and genetic respectability."

Even though he correctly predicted that secular society would move toward infanticide, a process to which several liberal politicians now give approval, it is unlikely that Rabbi Lamm could have conceived how far so-called progressive politicians and states would move in that direction.

Individuals within the Abrahamic faiths (Judaism, Christianity, and Islam) are taught that all of humanity should follow the Noahide Code, a set of imperatives given by G-d as a binding set of laws for the Children of Noah and which serves as the foundational premise of their individual faiths. There is simply no question that abortion comes under the Noahide prohibition against murder and the subsequent incorporation of such view within the three Abrahamic faiths.

By incorporating scientific advances in prenatal care, such as ultrasound technology, together with the knowledge that abortion is not only morally wrong (murder) but also corrosive of society, pro-life advocates continue to challenge and chip away at the consensus prevailing since Roe v. Wade. And, over time, because of well-reasoned decisions such as EMW v. Beshear, pro-life advocates will ultimately successfully change the dynamics of the debate over abortion.