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Judge rules against Jewish women’s challenge of Kentucky’s near-total abortion ban

Jessica Kalb, Sarah Baron and Lisa Sobel stand outside the Jefferson Circuit court room where there case was just heard on May 13. The three Kentucky Jewish women allege that the state's near-total abortion ban infringes on their religious freedoms.
Sylvia Goodman
/
LPM
Jessica Kalb, Sarah Baron and Lisa Sobel stand outside the Jefferson Circuit court room where there case was just heard on May 13. The three Kentucky Jewish women allege that the state's near-total abortion ban infringes on their religious freedoms.

Three Jewish women making a religious freedom argument against the state’s near-total abortion ban don’t have the standing to sue, a Louisville judge ruled.

A Jefferson County circuit court judge ruled that three Jewish women who are arguing that Kentucky’s near-total ban on abortion violates their religious freedoms don’t have the standing to sue because their injuries are “hypothetical.”

The women argued that Kentucky laws are unclear and vague, specifically pointing to in vitro fertilization in which fertilized embryos are discarded, which they said could run afoul of some of Kentucky’s abortion laws.

In his nine-page opinion, Judge Brian C. Edwards called the concern “misplaced.” He pointed to a 2004 statute dealing with fetal homicide that says acts performed by a health care provider as part of a “fertility treatment” are exempted.

Edwards wrote that he would address neither the claims that the state statutes are vague and unintelligible, nor the questions of religious freedom.

“However, the Court does acknowledge serious concerns regarding the substantive constitutionality of [Kentucky’s abortion trigger law] and these questions will ultimately need to be revisited and addressed by the Kentucky Supreme Court,” Edwards wrote.

According to the women, Kentucky’s ban endangers not only their health, but their ability to practice their religion. Lisa Sobel, the lead plaintiff, and the other two women say they are unable to begin IVF treatments for fear of prosecution.

“As much as I'd like to go forward and try and have more children, I can't in good conscience because there's too much risk to my life and to what I may or may not be charged with,” Sobel said before the decision came out.

The women argue that Kentucky’s laws are so vague, so unintelligible, they don’t know whether they’re allowed to get certain fertilization treatments, especially ones that require clinics to discard embryos.

Lawyers for the Attorney General’s office argued that they interpret the law to allow IVF and destruction of embryos in private clinics — an interpretation Edwards agreed with in his opinion. State law prevents publicly-funded institutions, like a hospital at a public university, from destroying embryos.

“We applaud the Court’s decision to uphold Kentucky law,” said Kentucky’s Republican Attorney General Russell Coleman. “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.”

The women’s lawyers said in a statement after the decision came out that they intend to “continue the fight” and will appeal the decision to a higher court.

“Judge Edwards’s decision is disappointing,” lawyers Aaron Kemper and Ben Potash said. “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. Our nation is waiting for a judiciary brave enough to do what the law and our traditions require.”

Sylvia is the Capitol reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Lexington, WKU Public Radio and WKMS-Murray. Email her at sgoodman@lpm.org.
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