A Jefferson Circuit judge declared part of Kentucky’s near-total abortion ban unconstitutional in a ruling Friday, specifically related to its definition of when human life begins.
The opinion and order of Judge Brian Edwards declared the statutes “unconstitutionally void for vagueness,” specifically in relation to confusion over their conflicting definitions of “human being.”
It is not immediately clear what effect the ruling has on the enforcement of Kentucky’s abortion ban, but attorneys representing the women who brought suit view it as an immediate win for women seeking in vitro fertilization. Edwards’ order does not include any specific injunction on the enforcement of the abortion statutes.
The ruling stems from a Jewish woman’s lawsuit challenging the ban as a violation of her religious freedom that puts her at risk of criminal prosecution if she pursues IVF and discards any frozen embryos she doesn’t need.
Kentucky has one of the most restrictive abortion bans in the country, with the only exception being to protect the life of the mother. The ban went into effect in 2022 after the U.S. Supreme Court overturned Roe v. Wade and allowed states to ban the procedure.
An appellate court previously ruled that two of the three Jewish women did not have standing to sue over the law, but determined that Jessica Kalb did. Kalb is storing nine embryos created during a previous IVF process, but felt she could be forced to implant a nonviable embryo or would be unable to discard any of them under Kentucky’s current abortion laws.
A spokesperson for Kentucky Attorney General Russell Coleman responded to the ruling with a statement that his position remains “that IVF is fully legal and those services in our Commonwealth are not at risk.” She added that the office is “reviewing this opinion before determining next steps.”
The Jewish women also alleged that Kentucky’s laws violated her religious freedom because they use Christian doctrines and beliefs around the beginning of human life, imposing them over other religious beliefs.
While Edwards partially ruled in Kalb’s favor, he discarded the religious freedom argument, saying the law applies to people of all religions equally.
Edwards wrote that the state’s near-total abortion ban “is a religiously neutral, general burden upon virtually any Kentuckian of faith seeking to participate in IVF.”
Ben Potash, one of the women’s attorneys, said they would consider appealing that portion of the ruling and may ask for stronger relief that would strike down the abortion ban entirely as unconstitutional.
During the Kentucky General Assembly session that concluded in mid-April, Republican lawmakers filed at least two bills that would have allowed a woman to be charged with homicide in the death of an “unborn child” or “fetal homicide.”
Edwards pointed to one case in Wolfe County, in which a woman was indicted for allegedly aborting her fetus using medication — the charges included fetal homicide and abuse of a corpse. He said it showed the courts “can no longer dismiss” Kalb’s fear of prosecution.
In his order in favor of the plaintiff, Edwards wrote that Kentucky’s abortion ban statutes had “conflicting and intertwined definitions” for human being, fetus, and unborn child, which made their scope vague and unintelligible.
“Because of the myriad of definitions regarding the definition of ‘human being’ and under what circumstances an individual can be held civilly liable or criminally culpable for terminating the life of a ‘human being,’ this Court can no longer dismiss the concerns raised by Plaintiff Kalb regarding how she and others should interpret what they can and cannot lawfully do in order to avoid possible incarceration and criminal prosecution,” Edwards wrote.
The judge added that “this conundrum can and should be resolved” by the General Assembly providing more clarity under the statutes.
Potash agreed, saying the laws as they are create more confusion.
“The legislature needs to pass coherent laws,” Potash said.
Potash isn’t certain how the state will interpret Edwards’ ruling as it relates to enforcement of the abortion ban.
“He's agreeing with us that these specific provisions … are the problem, and they are no longer law per this order,” Potash said. “Since the rest of those laws rely on those definitions, how are the rest of those laws going to be applied? I don't know.”
