Three Jewish women sat in the front row of a Jefferson County Circuit Court room in Louisville, listening as their lawyers and representatives from Kentucky’s Attorney General office argued whether the state’s near-total ban on abortion violates the religious freedoms of those who don’t believe life begins at conception. More than a year and a half ago, the women filed a lawsuit saying the ban violated their religious freedom and hurt their ability to grow their family.
One of the women, Jessica Kalb, currently has nine embryos “on ice” as she contemplates undergoing implantation. But, Kalb said, she worries the state’s abortion ban could apply to her or her doctors if the first fertilized embryo is successful. She said she also suffers from polycystic ovary syndrome, which carries higher risk for some problems and complications during pregnancy.
In Kentucky, only pregnant women in imminent danger of death or permanent injury are legally allowed to access an abortion in the state.
“I have these nine embryos that are viable. I only needed one transfer to become pregnant,” Kalb said. “The way the law is written, I could have to deal with nine pregnancies. And I'm 33, about to be 34. It's a really scary situation, especially to have all of this publicly known.”
Kentucky A.G.'s office counters
In oral arguments Monday, Lindsey Keiser, a lawyer with the Attorney General office, questioned whether the women should be allowed to bring the case at all. None of the women are currently pregnant, and Keiser said there isn’t a “clear and imminent” threat of prosecution.
She also argued that the state is allowed to incorporate some “religious references” into its laws.
“The commonwealth's interest in preserving life encompasses fostering respect for the sanctity of human life and supporting the ability of the human being to live for however long that might be,” Keiser said, referring to nonviable pregnancies. “Kentucky's Constitution has never required complete absence of religion or religious references in state activity or statutes.”
Keiser also argued that the state law around in vitro fertilization or IVF treatments is clear, and wouldn’t apply to the women should they discard an embryo.
“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.”
A bipartisan group of lawmakers may disagree with Keiser. A Democrat and Republican filed two similar pieces of legislation this year to clarify that IVF doctors are not liable for any lost or discarded embryos during pregnancy. Neither of those bills passed, failing to clear up the dispute.
Benjamin Potash, one of the Jewish women’s lawyers, argued that defining life as beginning at conception is a religious doctrine being imposed on those of differing beliefs and conscience.
“Kentucky is codifying the religious viewpoint that life begins at conception. And they've defined the fertilized egg as a human being,” Potash said.
Several members of the local Jewish clergy attended the hearing in a show of support for the women.
Lisa Sobel said women shouldn’t have to leave their state just to receive medical care, consistent with their faith and religious identities. She said she has previously undergone IVF treatments that resulted in nonviable embryos. Sobel said she’s scared to try the treatments again if it would mean she would be required to carry those pregnancies, pay for their indefinite storage or face prosecution for discarding them.
“Being a Kentuckian is who I am,” Sobel said. “I shouldn't have to leave in order to grow my family. I shouldn't have to leave because the legislators don't want to recognize that my faith matters too.”
Similar challenges on religious grounds have been successful in other states. In neighboring Indiana, the Indiana Court of Appeals ruled in favor of one religious freedom lawsuit, although the ban remains in effect. A similar argument, brought by Christian faith leaders, is also progressing in Missouri courts.
Importance of “standing”
Arguing that plaintiffs don’t have “standing,” the legal term for where someone has the ability to bring suit, has become a standard defense that the state uses to stop women or organizations from suing over abortion bans. And it’s so far been successful in Kentucky. The state’s Supreme Court ruled that organizations, including abortion clinics, do not have the ability to sue on the behalf of their client.
That decision made the case at hand moot, but left open the door to future challenges. Advocacy organizations have struggled ever since to bring a court challenge to the abortion ban. Late last year, the ACLU attempted to bring a case headed by a woman who was eight weeks pregnant. But they were forced to drop the suit when the anonymous woman’s embryo lost cardiac activity.
In Monday’s hearing, Keiser argued that the three women were not in imminent threat of prosecution and therefore couldn’t bring their case.
“The Kentucky Supreme Court has said that plaintiffs cannot manufacture standing merely based on their fears of hypothetical future harm,” Keiser said.
Potash said after the hearing that if his clients don’t have the right to bring their case, no one does.
“They actually have a dispute with the government that needs adjudication,” Potash said. “If the courts are going to shut their doors on these women, then they're going to shut the doors on all of us.
It’s rare for women involved in abortion lawsuits to make their names available, but all three plaintiffs in the Kentucky case have taken the leap. Aaron Kemper, the plaintiffs’ other lawyer, said the stakes are higher because these aren’t anonymous attempts.
“They want their rights declared, and they want to have their day in court. They're here, and they're shouting, ‘Please let me know what I can do.’”
After both sides finished presenting their cases, Judge Brian C. Edwards said he would try to make a decision “quickly.”
This will be the first judicial decision in the case. Regardless of the outcome, Kemper and Potash said they expect the case will continue up to the appeals court and potentially all the way to the state’s Supreme Court before a final decision is reached.
This story has been updated.
