Kentucky Judge Rejects Religious Challenge to Abortion Bans, Jewish Women Plan to Appeal

A recent ruling by Jefferson County Circuit Judge Brian Edwards has decided against three Jewish women who have challenged Kentucky’s near-total abortion bans on the grounds of religious freedom and their ability to safely carry out a pregnancy.

Judge Edwards ruled that the women lacked the standing to bring the case and granted summary judgment to the Kentucky Attorney General’s Office, denying the lawsuit brought by Lisa Sobel, Jessica Kalb, and Sarah Baron, who have all faced difficulties in their journey to motherhood.

Attorney General’s Response

Attorney General Russell Coleman lauded the court’s decision, emphasizing that the ruling eliminates any notion of the risk to access to IVF services in Kentucky, making it a welcome reassurance for those seeking to become parents.

However, the women’s attorney, Aaron Kemper, expressed discontent with the verdict, stating that it does not offer sufficient protection for IVF and has left his clients hurt and disappointed. The women plan to appeal the decision, believing that the judgment did not align with the law and contained numerous errors.

Abortion Bans Background

The abortion bans in question were enforced in the summer of 2022, subsequent to the fall of Roe v. Wade, and have remained in place since. One ban restricts pregnancy termination after a fetal cardiac activity is detected, typically around six weeks gestation, and the other permits abortion only when essential to save the life of the pregnant woman.

Plaintiffs’ Claims

The three women - Sobel, Kalb, and Baron - filed the lawsuit in October 2022, contending that the laws favor Christian beliefs and impinge on their rights and religious freedom as individuals of the Jewish faith. They argued that the bans are ambiguous and disadvantageous to those of Jewish faith, who believe that life begins at birth and not at conception.

Challenges Faced

Kalb and Sobel, who have had children through in-vitro fertilization, raised concerns about the restrictions affecting their ability to have more children, with Kalb having nine frozen embryos in storage. Baron, who was 37 at the time of the lawsuit, desires a third child but faces the heightened risks associated with pregnancy at her age, compounded by doctors’ restricted ability to provide standard care due to the abortion laws.

Impact on Reproductive Choices

These laws have discouraged Baron from expanding her family, and the absence of exceptions for cases of rape, incest, and fatal fetal abnormalities infringe on the women’s religious beliefs. They highlighted that Jewish law prioritizes protecting mothers in cases where the pregnancy endangers the woman’s life and causes physical and mental harm.

Legal Ambiguities

The ban’s lack of clarity on exceptions and the specific reference to “unborn human being” raise questions about the legality of procedures such as in-vitro fertilization and the disposal of embryos. The plaintiffs questioned whether the destruction of extracted frozen embryos for IVF purposes would lead to criminal penalties under Kentucky law.

Judge Edwards clarified that concerns about criminal prosecution for participation in IVF processes were misplaced, citing an advisory opinion by former Attorney General Daniel Cameron. However, the plaintiffs argue that Kentucky law regarding the definition of “unborn human being” includes the entire embryonic and fetal states, raising uncertainties about the legality of discarding embryos and the potential criminal implications.

Finally, the trio requested an injunction to temporarily block the contested laws, but the judge ruled that they had not demonstrated irreparable and immediate harm by the current laws to warrant relief.

State’s Position

Lindsey Keiser, representing the Kentucky Attorney General’s Office, emphasized during oral arguments that none of the plaintiffs are currently pregnant, and there is no clear and imminent threat of prosecution. She clarified that IVF is permissible, and the disposal of embryos treated by IVF that are not yet implanted will not trigger criminal penalties.