The court's refusal to review an invasive Kentucky abortion restriction says a lot about conservative's purported support of free speech.
Last month, the United States Supreme Court refused to review a case, EMW Women's Surgical Center v. Meier, that challenged Kentucky's transvaginal ultrasound law. That means the law, one of the most invasive anti-abortion laws on the books, is now in effect. And while the law itself is repugnant, the court's failure to take it up flies in the face of their ostensible concerns about free speech.
At first glance, this doesn't look much like a free speech case. Rather, it looks like yet another extreme anti-abortion law was enacted, one that will severely restrict reproductive health choices. Doctors performing abortions in Kentucky must perform ultrasounds and describe, in detail, what they see, including the development of the organs. They also have to play sounds of what the bill calls the "fetal heartbeat," but that's misleading. At the early stage of pregnancy, there is no heart. There's simply a group of cells that are pulsing and beginning to display cardiac activity.
Even worse, the ultrasound will, in most instances, be transvaginal. That's because a transvaginal ultrasound — an incredibly invasive procedure where a person is forced to have a probe inserted into their vagina and then moved around inside — is the only way to get accurate fetal development images in the first trimester. The far less invasive transabdominal ultrasound, which does not involve penetrating the patient, is used in the second and third trimester. is the only way to get fetal images prior to 12 weeks.
People can't say no to the procedure, and doctors can't refuse to perform them. In the smallest of mercies, people are allowed to turn their head away and cover their ears, but they can't make it stop. It's all in the name of a twisted form of "informed consent." Informed consent is a sound medical idea. The American Medical Association defines it as patients having "the right to receive information and ask questions about recommended treatments so they can make well-considered decisions." The AMA goes on to say that "successful communication in the patient-physician relationship fosters trust and supports shared decision making."
Instead of fostering trust, this law forces doctors to say and do things they are opposed to, and it forces patients to be present, even if they can try to avoid watching and listening.
It's that part that makes it curious — and hypocritical — that the U.S. Supreme Court refused to take the case.
In other contexts, this court has been exceedingly concerned about what is known as "forced speech" and how that violates the First Amendment. In NIFLA v. Becerra, decided in 2018, the court came to the exact opposite conclusion. NIFLA is nearly the funhouse mirror image of the Kentucky case. The Supreme Court ruled that anti-choice "crisis pregnancy centers" in California couldn't be required to give notice to pregnant people that the state provides free or low-cost reproductive health services, including abortions. In his concurring opinion, then-Justice Anthony Kennedy declared, "Governments must not be allowed to force persons to express messages contrary to their deepest convictions."
Apparently, that protection doesn't apply to people who believe in reproductive freedom and don't wish to be forced to share a message — and perform a procedure — that is "contrary to their deepest convictions."
This isn't the only case where this ultra-conservative court has expressed consternation about speech far more minimal than what is now required of Kentucky doctors and their patients. In Janus v. AFSCME, also decided in 2018, the conservative majority held that public-sector unions run afoul of the First Amendment if they charge a "fair share" fee to non-union members.
Unions negotiate on behalf of all employees, and prior to Janus, people who opted out of union membership still had to pay a fee to cover that. They weren't required to pay the portion of membership that dealt with union lobbying, precisely so none of their money went to political stances a union might take. However, the Court decided that the mere act of having to pay any money to a union compelled Janus to engage in speech to which he was opposed.
Put another way, the court was willing to say that paying money to a union to negotiate working conditions when you opposed the union's political speech — which you were not paying for — was compelled speech.
But being forced to perform an invasive procedure on an unwilling patient is just fine, it seems. Doctors also must engage in literal speech, by providing a "medical description" of the images, including the "presence of external members and internal organs" if viewable.
And then there's the Masterpiece Cakeshop case, where an evangelical Christian baker, Jack Phillips, refused to bake a cake for a gay couple. Ultimately, the decision there rested on different grounds, but a concurrence by Justices Clarence Thomas and Neil Gorsuch discussed the idea of compelled speech at length. The justices stated that asking Phillips to make a cake for same-sex marriage would require him to "at the very least, acknowledge that same-sex weddings are 'weddings' and suggest that they should be celebrated—the precise message he believes his faith forbids."
Under the reasoning of Gorsuch and Thomas, Phillips making a cake for someone he disapproves of is impermissible compelled speech that strikes at the heart of his faith. But apparently neither Gorsuch nor Thomas — nor any of the other conservative members of the court — found the idea of the state imposing an invasive act and forced speech on a medical patient problematic, simply because the speech being compelled is an anti-choice message.
In light of the NIFLA, Janus, and Masterpiece Cakeshop cases, the Supreme Court's failure to take up the Kentucky case looks like a stark act of hypocrisy. Conservatives seem to only care about compelled speech when they can further a conservative agenda: They have no problem with undermining the rights the rights of people seeking abortions, and making doctors and patients engage in speech they abhor. It's all part of the conservative goal of making abortions harder and harder to get.
Published with permission of The American Independent Foundation.