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Jewish women sue to block Kentucky abortion ban, say it violates religious freedom

Louisville Courier-Journal 10/6/2022 Joe Sonka, Louisville Courier Journal

Three Jewish women from Louisville filed a lawsuit Thursday morning to block Kentucky's laws banning most abortions from remaining in effect, arguing they are a violation of their religious rights under the state constitution.

Under current Kentucky laws, the protected human life of "an unborn child" begins when an egg is fertilized by a sperm, with abortion strictly prohibited once fetal cardiac activity is detected at roughly six weeks. Exceptions are only allowed to prevent a pregnant woman's death or a “substantial and irreversible impairment of a major bodily function."

The plaintiffs in the case say Jewish law, known as Halakha, for millennia has not defined human life as beginning at conception, rather at birth — while the abortion ban passed into law in Kentucky "has imposed sectarian theology on Jews."

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Their complaint, filed in Jefferson Circuit Court, states that Kentucky law particularly contradicts their constitutional religious rights when it comes to their past and intended future use of in vitro fertilization, in which a human egg is fertilized with sperm in a laboratory and then implanted in the uterus.

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Lisa Sobel, the lead plaintiff in the lawsuit, is the mother of one child through IVF, the only way she and her husband could conceive. Her IVF process was long, arduous and expensive, along with a medically difficult delivery, but she gave birth to a healthy girl in 2019.

While Sobel was considering having another baby, that calculus changed over the summer when the U.S. Supreme Court overturned Roe v. Wade and Kentucky's trigger abortion ban went into effect — which she says makes any future IVF pregnancy both legally and physically dangerous.

"As a mom, as a woman, this directly affects me, it affects my health care," Sobel told The Courier Journal. "And then it's a personal affront to my personal religious views, on top of it. As somebody who is a person of faith, that's just wrong to me."

Sobel is one of two of the plaintiffs who are the mother of a child conceived through IVF, with plaintiff Jessica Kalb still paying to store nine frozen embryos for possible future use for a pregnancy. Plaintiff Sarah Baron is the mother of two who is considering IVF for a future pregnancy, while all three would be subject to advanced risks during a pregnancy due to being aged in their 30s and other unique health factors, the lawsuit says.

Because the IVF process often results in surplus fertilized embryos that must either be kept frozen at high costs or discarded by the clinics at the consent of donors, the lawsuit states Kentucky law would force these Jewish women to spend considerable sums to keep them frozen indefinitely or face potential prosecution under the state's fetal homicide law.

"Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges," the complaint states. "This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious beliefs."

The complaint seeks to void Kentucky's laws banning abortion, naming Attorney General Daniel Cameron and Jefferson County Commonwealth's Attorney Tom Wine as defendants who should be at least temporarily enjoined from enforcing them with criminal penalties.

Cameron — an abortion opponent who is currently defending the ban in another lawsuit from abortion providers, which is now before the Kentucky Supreme Court — said in a statement he had not yet received the complaint, but is "committed to defending Kentucky’s pro-life laws."

“The General Assembly has made it clear that Kentucky will protect unborn life and these laws are an important part of the Commonwealth,” Cameron said.

'Flatly cruel and degrading'

Among the five counts in the complaint in favor of voiding the abortion laws, two argue it should be struck down for its vagueness and unintelligibility, as they could create a "patchwork" of allowable reproductive practices that vary from county to county depending on the judge or prosecutor — as well as great uncertainty for women, doctors and clinics who don't know what they are allowed to do with unused embryos or implanted fetuses that have died or are not viable.

Stating that the disposal of a fertilized embryo (blastocyst) or termination of a nonviable fetus have no specific protection under law, the complaint contends both outcomes "are strong possibilities for any IVF patient, and without legal protections for these medical procedures, IVF becomes legally dangerous if not impossible."

The complaint also argues that the abortion ban is a direct violation of Kentucky's Religious Freedom Restoration Act, which states the government "shall not substantially burden a person's freedom of religion" unless it proves clear and convincing evidence of a compelling governmental interest and uses the least restrictive means to further that interest.

Christian litigants have successfully cited this law and its federal companion in both state and federal courts to win recent cases, including those of a Louisville photographer who did not want to work same-sex weddings and a Lexington T-shirt company that refused to make gay pride shirts.

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"Forcing a mother to deliver a dead fetus to term, or one that will certainly die moments after birth, does not advance a governmental interest to protect fetal life, is contrary to Jewish law, severely damages the mental health of the mother, is flatly cruel and degrading, does not promote 'life,' and serves no legitimate purpose at all," the complaint states.

The plaintiffs also argue the abortion ban violates Section 5 of the Kentucky Constitution by giving preference to sectarian Christianity and diminishing their privileges, rights and capacities on account of their Jewish faith.

Under current "theocratic" law, the complaint says the plaintiffs are essentially "enjoined from reproduction," noting that procreation has "a special place in Jewish law, thought, and tradition," especially since the massive genocide of the Holocaust.

Hearts, minds, votes and laws

While two similar lawsuits have been filed in Florida and Indiana to block state abortion bans on the grounds that it violates the religious freedom of Jewish people, the Kentucky lawsuit is the first one known to have named individual plaintiffs, according to Benjamin Potash and Aaron Kemper, who filed the complaint.

Sobel said she has never been an outwardly political person and taking this public action is "very scary." But she said she is stepping forward with her lawsuit because the ban has a direct effect on Jewish women and challenging it in court "was really the only thing that I could think of to affect real change."

After speaking with her attorneys, "it became clear that this was something that I could do, and by putting my name on there, by putting my face out there, it becomes personal to other people and hopefully will help change hearts, minds and votes — and eventually laws."

Noting that she "almost died because I was bleeding out" while delivering her child, Sobel said current Kentucky law would make another pregnancy much riskier if she attempted IVF again.

"It's really scary for me to go into a hospital. ... Having a natural miscarriage at this point is a risk, because they have to talk to their lawyers and they have to talk to other doctors to determine whether this is a naturally occurring miscarriage," she said. "By the time they determine that, I could be dead."

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At a press conference Thursday afternoon of the plaintiffs and their attorneys, Kalb said she had hoped to use her remaining frozen embryos to have another child, but no longer felt safe legally or physically to do so.

"I was so afraid I was gonna get pregnant and go to a scan and hear, 'Your baby's not compatible with life,'" Kalb said. "After this law, that's no longer my greatest fear. Now, my greatest fear is that I become pregnant and I go to a scan and they say, 'Your baby is incompatible with life and we can't help you.' Because that's the reality right now in our state."

"What's the pro-life position here?" asked Potash. "Should Lisa be able to have children? Because the way the law is written now, maybe not. So I think there's a lot of hypocrisy in this law, because it prevents people from giving birth in some circumstances, and it also forces people to give birth to a dead person. It's horrifying."

Kemper said if it were determined that a fetus is not going to survive — which is more common with IVF — a high-risk patient like Sobel might have to be "on the verge of death" before a doctor believes they can legally end a pregnancy.

"It's cruel and violates Jewish law and the health of the mother and the mental health of the mother — and it's not the least restrictive means to promote life," Kemper said. "So that's where it has a chilling effect, these vague laws without having exceptions."

Sobel said she and the plaintiffs have received private support on the lawsuit from most of the rabbis and cantors in Louisville, spanning all denominations and ideologies.

"For us as a Jewish community, the issue isn't reform, conservative, orthodox, liberal or conservative," Sobel said. "We are a united community on this issue because we have 2,000 years of understanding and commentary that tells us where the line is."

Plaintiff attorneys 'drew inspiration' from AG filings

While Attorney General Cameron's immediate response to the lawsuit was to tout his support for "pro-life laws," his office has frequently defended religious freedom and liberty in state and federal court filings in recent years.

Cameron, who is running for governor next year, has filed briefs in support of the religious liberty of military members and federal contractors who opposed COVID-19 vaccine mandates and churches who opposed early pandemic restrictions from Gov. Andy Beshear's administration on in-person services. He even asked the U.S. Supreme Court to strike down the Beshear administration's pandemic mandates on religious schools.

Just Wednesday, Cameron's gubernatorial campaign sent out an email heralding his work to stop vaccine mandates for military member on religious grounds, with the subject line: "I’m Leading the Fight for Religious Liberty."

Asked about Cameron's repeated support for religious freedom in his first three years in office and how he might square that with this complaint, Kemper noted their complaint had used his briefs as a sort of blueprint.

"I will say that in drafting our complaints and researching our complaints that we filed under the RFRA, we drew inspiration from some of the complaints that were filed during COVID-19 that the attorney general's office supported," Kemper said. "And we drew on the case law that they cited as inspiration for our lawsuit."

Reach reporter Joe Sonka at jsonka@courierjournal.com and follow him on Twitter at @joesonka.

This article originally appeared on Louisville Courier Journal: Jewish women sue to block Kentucky abortion ban, say it violates religious freedom

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