A Jewish Kentuckian is moving forward with a challenge to the state’s near-total abortion ban after a lower court previously dismissed a lawsuit from her and two other women who argue the state ban violates their religious freedom, and could endanger their ability to undergo in vitro fertilization procedures.
The Kentucky Court of Appeals ruled Friday that Jessica Kalb has the standing to sue over the state’s abortion ban and sent her case back to the lower court.
Kalb has nine embryos frozen and awaiting implantation, disposal, or donation. She already canceled an implantation in 2022 because she feared the state’s abortion laws could be used against her, according to court records. The appeals court also pointed to the fact that Kalb is still paying to keep those embryos frozen.
“Should she continue to do so in perpetuity because the government will not clarify what she can and can’t do with them? No,” the ruling reads. “This is not a speculative issue because these embryos currently exist, and Ms. Kalb is entitled to know her options without fear of potential legal peril.”
Unless the Kentucky Attorney General’s office decides to appeal to the state Supreme Court, the case will go back to the trial court to rule on the merits of the argument, not just whether Kalb has the ability to sue in the first place.
In Kentucky, only pregnant women in imminent danger of death or permanent injury are legally allowed to access an abortion in the state. In an attempt to further clarify that exception, a new law passed this year allows doctors to provide an abortion in case of an ectopic or molar pregnancies and cases of sepsis or hemorrhage when an impending or completed miscarriage causes a “life-threatening infection or excessive bleeding.”
The women argue that Kentucky’s laws are too vague and confusing, so they don’t know whether they’re allowed to get certain fertilization treatments, especially ones that require clinics to discard embryos.
“Kentucky's abortion law is incoherent, internally inconsistent, and based in definitions that really make no sense medically or scientifically, and that has big legal repercussions when it comes to due process and even something like separation of powers,” Kalb’s Attorney Ben Potash said.
The attorney general’s office interprets the law to allow IVF and destruction of embryos in private clinics. State law prevents publicly-funded institutions, like a hospital at a public university, from destroying embryos.
In a statement, GOP Attorney General Russell Coleman said, “Kentucky law is clear. Access to IVF is fully protected for Kentuckians hoping to grow their families. We are confident the circuit court will agree once again.”
The appellate ruling pointed to various definitions of “unborn child” in Kentucky statutes that are used to define crimes like fetal homicide and those that create the state’s abortion ban. In different places, statutes define an unborn child as an individual “throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation” or “in utero from conception onward.”
The women argue the state’s abortion laws violate their religious freedom by giving preference to Christian definitions of life and disadvantaging Jewish beliefs. The appeal’s court found that Kalb had standing to make that argument too.
“These laws that we have right now on the books are absolutely, unquestionably based in a religious definition of life beginning at conception, and that definition has all kinds of legal repercussions that I don't think anyone ever thought through,” Potash said. “At the end of the day, they conflict with Jessica's beliefs as a Jewish person, and they conflict with a lot of other people's philosophical and religious beliefs.”
Potash said they are asking the court to strike down the state’s abortion law and send them “back to the drawing board” to create laws that don’t violate religious freedoms or endanger fertility treatments.
“I don't think that our legislature is going to be able to pass laws that respect people's religious rights and that makes sense as long as they're trying to codify life beginning at conception,” Potash said.
Arguing that plaintiffs don’t have “standing,” the legal term for where someone has the ability to bring suit, has become a standard way the state stops women or organizations from suing over abortion bans 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.
Advocacy organizations have struggled ever since to bring a court challenge to the abortion ban with a client that would be acceptable to the courts. The ACLU of Kentucky has since twice attempted to sue over the ban by representing pregnant Kentuckians, but has had to drop the suits both times. Potash pointed to the fact that his clients have had to wait 3 years just to establish one of them has standing — far longer than a nine-month pregnancy.
After the Jewish women’s lawsuit was filed in Kentucky, the Alabama Supreme Court found that embryos created through fertility treatments should be considered children. The Alabama legislature then moved to protect IVF services under state law. Kentucky lawmakers on both sides of the aisle filed legislation last year that would explicitly protect fertility treatments under the state’s near-total abortion ban, but they were not adopted.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
