Jessica Kalb has been waiting over three years for a court to decide if Kentucky law, including its ban on abortion, violates her religious freedom and puts her at risk of criminal prosecution if, as a patient pursuing in vitro fertilization, she eventually discards any frozen embryos that she doesn’t need.
Kalb launched this lawsuit when she was 32 years old, just a few months after the U.S. Supreme Court’s Republican-appointed justices overturned Roe v. Wade and allowed Kentucky’s near-total abortion ban – outlawing abortion except in life-threatening cases – to take effect.
Now, Kalb is 35. At that age, pregnancies are considered higher-risk.
“We were trying to get all of this done before that milestone,” she said. “Because with geriatric pregnancies, there's a lot more risk.”
This is just one of many lawsuits challenging state-level abortion bans that have been fought across the country since the U.S. Supreme Court eliminated the national right to an abortion. Kalb originally filed her lawsuit alongside two other Jewish women, but ultimately the Kentucky Court of Appeals decided that she was the only one with the necessary legal standing to sue.
In a courtroom Monday, Kalb’s attorney, Aaron Kemper, argued that Kentucky law is “vague and unintelligible” concerning the legality of discarding frozen embryos from IVF in a state where human life is legally defined, in multiple statutes, as including embryos.
Kalb fears she and others could be charged with homicide if they successfully give birth through IVF and then discard their remaining unused embryos.
Kentucky Assistant Attorney General Lindsey Keiser argued Monday that the state’s abortion ban and homicide laws do not apply to discarded embryos.
“Nothing in Kentucky law prevents or criminalizes the plaintiff [Kalb] engaging in IVF or disposing of unimplanted embryos,” Keiser said.
Kemper, Kalb’s lawyer, disagreed.
“If the law was so clear and easy to understand, the attorney general would not have had to issue advisory opinions, the legislature would not be constantly amending these statutes, and we would not be here today,” he said.
Kalb’s case also challenges Kentucky’s abortion ban as a violation of her religious freedom. Her other attorney, Ben Potash, discussed Monday how Kentucky law’s assertion that life begins at conception is a religious belief preached by some Christian denominations, but that belief is not held by Jewish people like Kalb.
“And while there's not a prohibition on religiously motivated laws, there is a prohibition on saying, ‘This religious interpretation is given primacy,’” he said.
Potash said Kalb’s faith permits her to get an abortion if non-life-threatening complications occur in a pregnancy, but state law wouldn’t allow an abortion under those circumstances.
Keiser, with the attorney general’s office, argued that the Kentucky legislature stands on firm legal ground when it comes to the question of whether it can define when human life begins under state law. Keiser said Kalb’s religious freedom argument fails in part because she has failed to demonstrate a “substantial burden on the exercise of her religion.”
Potash contended that Kalb has proven a substantial burden, which he said is essentially “a forced choice between following what you believe God is telling you to do” or following what you believe the state is telling you to do.
At the end of Monday’s hearing, Jefferson County Circuit Court Judge Brian Edwards said he hopes to issue a ruling “as quickly as possible.”
