Louisville judge hears arguments in Jewish women’s challenge of Kentucky’s abortion ban

Republished from Kentucky Lantern

LOUISVILLE — Jefferson County Circuit Court Judge Brian Edwards heard oral arguments Monday in the case of  three Jewish women who argue their religious freedom is violated by Kentucky’s abortion ban. 

Much of the arguments focused on in vitro fertilization (IVF) and the extent to which it overlaps with the state’s abortion ban. Several lawmakers filed bills to protect the process in Kentucky this session, but none became law. Some feel IVF is in limbo since the Alabama Supreme Court ruled in mid February that frozen embryos are children. 

Is IVF protected in Kentucky? Depends on whom you ask.

The oral arguments 

Aaron Kemper and Benjamin Potash, lawyers for the plaintiffs, argued Monday that Kentucky has imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.

They also said their plaintiffs — Lisa Sobel, Jessica Kalb and Sarah Baron — feel Kentucky’s current laws around abortion inhibit their ability to grow their families

One of the plaintiffs, Kalb, has nine frozen embryos right now that she’s paying thousands of dollars annually to preserve. 

“She’s 33 years old; she does not plan on having nine children,” Kemper said. 

Attorneys Aaron Kemper, left, and Ben Potash, speak with media after the arguments. (Kentucky Lantern photo by Sarah Ladd)

“You have three women here who are not pregnant right now, all of whom want to be pregnant,” Potash said. “They’re not able to be pregnant because these laws get in the way.”  

As Kentucky law stands now, there is disagreement on what protections exist for unused frozen embryos and if discarding them is permissible. “We don’t know if terminating a fertilized egg is illegal on day zero,” Kemper said. 

Lindsey Keiser argued for the Kentucky Attorney General’s office — which is named as a defendant — that the “alleged injuries are hypothetical” since the plaintiffs are not currently pregnant. 

Keiser said “it’s not clear or imminent that (Kalb) will have to dispose (of) all of those” embryos since sometimes implantations fail. 

Furthermore, Keiser argued, since Kentucky’s law defines pregnancy as a fetus inside a woman, “the disposal of embryos that are created through the process of IVF but not yet implanted will not trigger criminal penalties under either the abortion statute or the fetal homicide statute.”  

Since the AG’s position is that IVF in Kentucky is not limited, Keiser said, no rights in that area have been violated. 

When it comes to abortion, she argued Kentucky does have a “compelling interest” in restricting the practice, even in the context of opposing religious beliefs. 

“Kentucky’s interest in preserving potential life is not limited to preserving it only for those who live long and healthy lives,” Keiser said. “The commonwealth’s interest in preserving life encompasses fostering respect for the sanctity of human life.” 

‘The law is on our side’

Judge Edwards said he will “endeavor to get an opinion out quickly.” 

No matter what the opinion is, Potash said, he expects one side to appeal.

“Eventually, in all likelihood, it will make it up to the Kentucky Supreme Court, where the same issues will be discussed,” Potash said after Monday’s arguments. “What it all boils down to are the issues in our summary judgment motion, and whether we have standing around or our clients have standing to bring those claims.” 

The lawyers said they’re confident their clients have personal standing, or the right to bring this case. 

“If they don’t have standing, no one has standing to challenge abortion rights in America,” Potash said. “They actually have a dispute with the government that needs adjudication. And if the courts are going to shut their doors on these women, and they’re going to shut the doors on all of us.” 

Jewish women cite Kentucky’s Religious Freedom law in contesting state abortion ban

While waiting for the judge’s decision, Potash said: “We’re confident that the law is on our side, and the facts are on our side.” 

‘I shouldn’t have to leave.’ 

Kalb told reporters after Monday’s arguments that because of her condition — she has polycystic ovary syndrome (PCOS), which can cause cysts to form in the ovaries and lead to infertility — her pregnancies are more likely to end in miscarriage or abortion or need other complicated interventions. 

In June 2022,, the U.S. Supreme Court overturned Roe. V. Wade, which had established the constitutional right to abortion. Kentucky’s trigger law went into effect immediately, which bans abortion except when the mother’s life is at risk. 

Kalb, who moved to Kentucky in 2020, said the ruling put her plans to expand her family on hold. “Going through IVF again for me means that I have to put myself in that vulnerable situation of being pregnant, and possibly not being able to access care,” Kalb said. To get pregnant before, she said, she only needed one transfer. 

“It wasn’t like I went through four, five, six, seven. So right now, the way the law’s written, I could have to deal with nine pregnancies,” she said. “I’m 33, about to be 34. It’s a really scary situation, especially to have all of this publicly known. So, if the tides were to shift, I mean, there’s nothing protecting me right now.” 

Despite that, the women said it’s important for them to stay in Kentucky and fight to change the laws instead of going elsewhere. 

“My family has been here since the early 1800s, and Jewish,” Sobel said. “I’ve always been a Kentucky Jew. … I always celebrated the Derby. I always cheered for the Louisville Cardinals. Being a Kentuckian is who I am. 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.”

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