Women file lawsuit to end KY abortion ban for violating Jewish law and religion

Three Louisville Jewish women filed a lawsuit Thursday morning to block Kentucky 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 heart activity is detected at around six weeks. Exceptions are only allowed to prevent the death of a pregnant woman or “substantial and irreversible impairment of a major bodily function”.

The plaintiffs in the case claim that Jewish law, known as Halakha, has for millennia not defined human life as beginning at conception, but rather at birth – while the ban on abortion enacted into Kentucky law “imposed a sectarian theology on the Jews”.

Their lawsuit, filed in Jefferson Circuit Court, says Kentucky law specifically contradicts their constitutional religious rights with respect to their past and future use of in vitro fertilization, in which a human egg is fertilized with sperm in a lab. , then implanted in the uterus.

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

While Sobel considered having another baby, that calculation 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 unsafe.

“As a mother, as a woman, it affects me directly, it affects my health care,” Sobel told the Courier Journal. “And then it’s a personal affront to my personal religious views, too. As a person of faith, it’s just plain wrong for me.”

Sobel is one of two plaintiffs who are the mothers of a child conceived through IVF, with plaintiff Jessica Kalb still paying to store nine frozen embryos for possible future use in pregnancy. Plaintiff Sarah Baron is the mother of two children who are considering IVF for a future pregnancy, when all three would be at advanced risk during a pregnancy due to their age in their thirties and other unique health factors, indicates the trial.

Because the IVF process often results in surplus fertilized embryos that must either be kept frozen at great cost or discarded by clinics with the consent of the donors, the lawsuit states that Kentucky law would require such Jewish women to spend vast sums to keep them frozen indefinitely or risk being prosecuted under state fetal homicide law.

“Plaintiffs’ religious beliefs dictate that they have more children through IVF, but the law forces plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face possible felony charges,” says the complaint. “This dilemma forces plaintiffs to give up their sincere religious beliefs to have more children by limiting access to IVF and significantly impairs their right to freely exercise those sincere religious beliefs.”

The suit seeks to strike down Kentucky laws banning abortion, naming Attorney General Daniel Cameron and Jefferson County Attorney Tom Wine as defendants who should be at least temporarily barred from enforcing them with criminal penalties.

A spokesperson for Cameron — an abortion opponent who is currently defending the ban in another lawsuit brought by abortion providers, which is now before the Kentucky Supreme Court — did not immediately respond to a request comment on the new trial.

“Obviously cruel and degrading”

Of the five counts in favor of overturning abortion laws, two argue that it should be overturned for its vagueness and unintelligibility, as it could create a “patchwork” of permitted reproductive practices that vary from county to county according to the judge. or attorney — as well as great uncertainty for women, doctors, and clinics who don’t know what they’re allowed to do with unused embryos or implanted fetuses that are dead or nonviable.

Stating that the removal of a fertilized embryo (blastocyst) or the termination of a non-viable fetus enjoys no specific protection under the law, the complaint argues that both outcomes “are strong possibilities for any IVF patient, and without legal protection 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 that the government “shall not substantially interfere with a person’s freedom of religion.” unless it clearly and convincingly demonstrates a compelling government interest and uses the least restrictive means to further that interest.

Christian litigants have successfully cited this law and its federal counterpart in state and federal courts to win recent lawsuits, including those of a Louisville photographer who did not want to work gay marriages and a t- shirts from lexington who refused to make gay pride shirts.

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“Forcing a mother to deliver a dead fetus at term, or one that will certainly die within moments of birth, does not serve the government’s interest in protecting fetal life, is contrary to Jewish law, seriously undermines the mother’s mental health, is downright cruel and degrading, does not promote ‘life’ and serves no legitimate purpose,” the complaint states.

Plaintiffs also argue that the abortion ban violates Section 5 of the Kentucky Constitution by giving preference to sectarian Christianity and diminishing their privileges, rights, and abilities because of their Jewish faith.

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

Hearts, minds, votes and laws

Lisa Sobel talks about filing a lawsuit to overturn Kentucky's abortion ban.

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

Sobel said she had never been an overtly political person and that taking this public action was “very scary”. But she said she was going ahead with her lawsuit because the ban had a direct effect on Jewish women and challenging it in court “was really the only thing I could think of to bring about real change. “.

After speaking with his lawyers, “it became clear that this was something I could do, and by putting my name there, putting my face there, it becomes personal to other people and, hopefully will help change hearts, minds and votes – and eventually laws.”

Noting that she “nearly died because I was bleeding” during childbirth, Sobel said current Kentucky law would make another pregnancy much riskier if she tried IVF again.

“It’s really scary for me to go to the hospital. … Having a natural miscarriage at this stage is a risk because they have to talk to their lawyers and they have to talk to other doctors to figure out if it’s this is a natural miscarriage,” she said. “By the time they figure that out, I could be dead.”

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“What is the pro-life stance here?” asked Potash. “Should Lisa be able to have children? Because the law is written now, maybe not. So I think there’s a lot of hypocrisy in this law, because it prevents people from give birth under certain circumstances, and it also forces people to give birth to a dead person.

Kemper said if it’s determined that a fetus won’t survive – which is more common with IVF – a high-risk patient like Sobel might have to be “close to death” before a doctor thinks that he can legally terminate a pregnancy.

“It’s cruel and violates Jewish law and mother’s health and mother’s sanity — and it’s not the least restrictive way to promote life,” Kemper said. “So that’s where it has a chilling effect, these vague laws with no exceptions.”

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

“For us, as a Jewish community, the issue is not 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 feedback that tell us where the line is.”

Contact journalist Joe Sonka at [email protected] and follow him on Twitter at@joesonka.

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