A Jefferson County judge has ruled against three Jewish women who argue that Kentucky’s near-total abortion bans infringe on their religious freedom and their ability to safely carry out a pregnancy.
Jefferson County Circuit Judge Brian Edwards on Friday issued an order tossing out a lawsuit brought by Louisville residents Lisa Sobel, Jessica Kalb and Sarah Baron, who have all experienced challenges to 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 news 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 a welcome reassurance to the many Kentuckians seeking to become parents.”
But Aaron Kemper, an attorney for the women, said that is not his reading of the situation.
“This doesn’t offer any protection for IVF whatsoever,” he said in a brief telephone interview. “We are definitely concerned.”
Kemper said his clients “are hurt and disappointed” by the ruling, and they plan to appeal.
“After thirteen months of waiting, we received a nine page decision that we feel fails to comport with the law and makes numerous obvious errors,” he said in a written statement. “Our nation is waiting for a judiciary brave enough to do what the law and our traditions require. Our clients demand that we continue the fight and we look forward to review by higher courts.”
Kentucky’s two abortion bans took effect in the summer of 2022, after the fall of Roe v. Wade, and both are still in place today. A six-week ban, or fetal heartbeat law, prohibits pregnancy termination after a fetal cardiac activity is detected, usually around six weeks gestation, and a separate trigger law bans abortion except when it’s necessary to save the life of a pregnant woman.
Sobel, Kalb and Baron sued the state in October 2022, arguing that these “unintelligible” laws give preference to Christian beliefs in such a way that diminishes their rights and religious freedom as people of Jewish faith, who believe life begins at birth, not conception. They also argue the bans are “intentionally vague (so) that ordinary people cannot understand what conduct is prohibited.”
Kalb and Sobel have had children by way of in-vitro fertilization, and Kalb currently has nine “frozen” embryos in storage, in the event she does want 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 the age of 35 — are compounded by doctors’ limited ability to respond with the standard of care, because of the state’s abortion restrictions.
Even if a fetus is nonviable, if the pregnancy poses no risk to a woman, abortion by way of pre-term induction is illegal under Kentucky law. This has led many women with nonviable pregnancies to travel out of state to access what is medically considered routine care that’s recommended by their doctors.
As it stands, “Kentucky’s current law related to reproduction has discouraged (Baron) from having more children,” the lawsuit reads.
What’s more, they argue the bans’ lack of exceptions for cases of rape, incest and fatal fetal abnormalities violate their religious beliefs.
“While a fetus is deserving of some level of respect under halakha, the birth giver takes precedence,” their lawsuit reads. “Jews have never believed that life begins at conception. This belief belongs to certain Christian groups.”
“Jewish law stresses the necessity of protecting birth givers in the event a pregnancy endangers the woman’s life and causes the mother physical and mental harm,” their lawsuit reads. “Harm includes but is not limited to rape, incest, or the case of a significant fetal anomaly.”
Kentucky’s trigger law threatens health care providers with a Class-D felony if they provide care, either by way of a procedure or medication, “with the specific intent of causing or abetting the termination of the life of an unborn human being.”
The specific reference to “unborn human being” is where the plaintiffs also take issue.
They posit a question that has not explicitly been answered by lawmakers by way of clarifying bill language, or the judicial system: Does destruction of frozen embryos that have been extracted for IVF purposes lead to criminal penalties?
Edwards wrote in his order filed Friday that the plaintiffs’ “claims relating to concerns about being criminally prosecuted for participation in IVF processes are misplaced.”
He cited an advisory opinion by former Attorney General Daniel Cameron in which he sought to clarifiy the ban’s scope, saying it “does not apply to the use, care, or disposition of embryos fertilized by in vitro fertilization.”
But according to Kentucky Revised Statutes, the bans do apply to the disposal of embryos, the plaintiffs argue.
KRS define “unborn human being” — the being current abortion law forbids the termination of — as an “individual member of the species homo sapiens throughout the entire embryonic and fetal states of the unborn child, from fertilization to full gestation and childbirth.”
“It is common practice for a couple who has undergone IVF to choose to discard their embryos,” they argue in their suit. “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 those 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’re contesting. In order to meet that threshold, they had to show they were or are irreparably and immediately harmed by the current laws and in need of relief.
They fell short in this regard, Edwards said.
Lindsey Keiser, a lawyer arguing on behalf of Attorney General Coleman’s office, said during oral arguments in late May that none of the three are currently pregnant, and there isn’t a “clear and imminent” threat of prosecution, WFPL reported.
“IVF is permissible, and the disposal of embryos treated by IVF but not yet implanted will not trigger criminal penalties,” Keiser said. “The only statutory restriction on IVF relates to public medical facilities.”
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