A Jefferson County judge has ruled against three Jewish women who argue that Kentucky’s near-total abortion ban infringes on their religious freedom and their ability to carry out a pregnancy safely.
Jefferson County Circuit Judge Brian Edwards on Friday issued an order dismissing a lawsuit filed by Louisville residents Lisa Sobel, Jessica Kalb and Sarah Baron, who faced challenges becoming mothers.
He said the women lacked standing to bring the case and granted summary judgment to the Kentucky Attorney General’s Office, which defended the state’s abortion laws.
“We applaud the Court’s decision to uphold Kentucky law,” Attorney General Russell Coleman said in a press release Friday evening. “Most importantly, the Court eliminates any notion that access to IVF services in our Commonwealth is at risk. Today’s opinion is welcome reassurance for many Kentuckians seeking to become parents.”
But Aaron Kemper, an attorney for the women, said that’s not his reading of the situation.
“It doesn’t offer any protection for in vitro fertilization,” he said in a brief phone interview. “We are definitely concerned.”
Kemper said his clients “are hurt and disappointed” by the ruling and plan to appeal.
“After thirteen months of waiting, we received a nine-page decision that we consider does not comply with the law and makes several obvious errors,” he said in a written statement. “Our nation waits for a judiciary courageous enough to do what the law and our traditions demand. Our clients demand that we continue the fight and await review by the higher courts.”
Kentucky’s Two Abortion Bans came into force in summer 2022, after the fall of Roe v. Wade, and both are still in effect today. A six-week ban, or fetal heartbeat lawprohibits termination of pregnancy after detection of fetal cardiac activity, generally at around six weeks of gestation, and a separate procedure trigger law prohibits abortion except when necessary to save the life of a pregnant woman.
Sobel, Kalb and Barão sued the state in October 2022, arguing that these “unintelligible” laws give preference to Christian beliefs in a way that diminishes their rights and religious freedom as people of the Jewish faith, who believe that life begins at birth rather than conception. They also argue that the prohibitions are “intentionally vague (so that) ordinary people cannot understand what conduct is prohibited.”
Kalb and Sobel had children through in vitro fertilization, and Kalb currently has nine “frozen” embryos in storage in case she wants to have more children, according to the lawsuit.
Baron, who was 37 at the time the lawsuit was filed, has two children and wants a third. But the threat of pregnancy complications – a pregnancy is considered “geriatric” and higher risk over age 35 – is compounded by the limited ability of doctors to respond with the standard of care due to state-imposed restrictions on abortion.
Even if the fetus is non-viable, if the pregnancy poses no risk to the woman, premature induction abortion is illegal under Kentucky law. This has led many women with non-viable pregnancies to traveling out of state to access what is medically considered routine care this is recommended by your doctors.
As it stands, “current Kentucky law relating to reproduction has discouraged (Baron) from having more children,” the suit says.
Furthermore, they argue that the lack of exceptions to the prohibitions for cases of rape, incest and fatal fetal anomalies violates their religious beliefs.
“While the fetus deserves some level of respect under halakha, the donor takes precedence,” the lawsuit says. “Jews never believed that life begins at conception. This belief belongs to certain Christian groups.”
“Jewish law emphasizes the need to protect those who give birth in the event that a pregnancy puts the woman’s life at risk and causes physical and mental harm to the mother,” the lawsuit says. “Harm includes, but is not limited to, rape, incest, or the event of a significant fetal anomaly.”
Kentucky’s trigger law threatens health care providers with a Class D felony if they provide care, whether through a procedure or medication, “with the specific intent to cause or encourage the termination of the life of an unborn human being ”.
The specific reference to the “unborn human being” is where the plaintiffs also take issue.
They pose a question that has not been explicitly answered by lawmakers to clarify the bill’s language or by the judicial system: Does the destruction of frozen embryos that were extracted for in vitro fertilization lead to criminal sanctions?
Edwards wrote in his order filed Friday that plaintiffs’ “allegations relating to concerns about being criminally prosecuted for participating in in vitro fertilization processes are misguided.”
He cited an advisory opinion from former Attorney General Daniel Cameron in which he sought clarify the scope of the bansaying it “does not apply to the use, care or disposition of embryos fertilized by in vitro fertilization.”
But according to Kentucky Revised Statutesthe prohibitions apply to the disposal of embryos, the plaintiffs argue.
The KRS defines an “unborn human being” – the being that current abortion law prohibits terminating – as an “individual member of the species homo sapiens throughout the embryonic and fetal state of the unborn child, from fertilization to full gestation and the birth.”
“It is common practice for a couple who have undergone in vitro fertilization to choose to discard their embryos,” they argue in the lawsuit. “It is unclear whether, under Kentucky law, choosing to discard embryos during IFV is a capital offense.”
Edwards also cited Kentucky law regarding the prosecution of the death of an unborn child. He said the law does not apply “if these acts were committed as part of…fertility treatment.”
The trio asked for an injunction, that is, for a judge to temporarily block the laws they challenge. To reach this threshold, they had to demonstrate that they were or are irreparably and immediately harmed by the laws in force and that they are in need of reparation.
They fell short in that regard, Edwards said.
Lindsey Keizer, an attorney defending Attorney General Coleman’s office, said during oral arguments in late May that none of the three is pregnant and there is not a “clear and imminent” threat of prosecution, WFPL reported.
“In vitro fertilization is permitted, and the disposal of embryos treated by IVF but not yet implanted will not carry criminal penalties,” Keiser said. “The only legal restriction on IVF concerns public medical facilities.”
