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Kentucky Judge Strikes Down Abortion Ultrasound Law

By William Vogeler, Esq. on October 02, 2017 | Last updated on March 21, 2019

Judge David Hale is not a man of few words, especially on the issues of abortion and free speech.

In a 30-page ruling, the federal judge struck down a Kentucky law that would require doctors to take an ultrasound of the fetus and describe it to a patient before performing an abortion.

He said the law, HB 2, violates doctors' First Amendment rights and "appears to inflict psychological harm on abortion patients."

Free Speech

The law allows patients to look away from the image and cover their ears to avoid hearing the description or the fetal heartbeat. However, it penalizes physicians up to $250,000 for not complying.

HB 2 is one of two abortion bills the state legislature passed this year. The other measure bans abortions after the 20th week of pregnancy.

The American Civil Liberties Union sued over the ultrasound bill, but not the abortion ban. In striking down the HB 2, the judge rejected a U.S. Fifth Circuit Court of Appeals opinion and followed a decision from the U.S. Fourth Circuit Court of Appeals.

"Finding the Fourth Circuit's reasoning persuasive, the court concludes that HB 2 violates the First Amendment," Hale said.

Split Decisions

Federal judges are split on the ultrasound issue around the country. The Fourth departed from the Fifth and Eighth Circuits, and Kentucky Gov. Matt Brown has vowed to take the issue to the Sixth Circuit.

"We are confident the constitutionality of HB 2 will be upheld, as similar laws have been in both the 5th and 8th Circuits," said Amanda Stamper, a spokeswoman for the governor.

Hale, an Obama appointee, has showed his teeth on free speech issues before. During the last presidential campaign, he said, Trump was "particularly reckless" when he spoke at a rally that broke out in violence and a subsequent lawsuit.

"It is plausible that Trump's direction to 'get 'em out of here' advocated the use of force," Hale wrote in allowing protesters to continue their complaint for damages.

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