06 Dec 2022 Jewish Women Challenge Kentucky Abortion Ban

The overturning of Roe v. Wade by the U.S. Supreme Court this summer had elected officials in many states vowing to protect women’s rights, while other states’ leaders already had so-called “trigger laws” on the books that immediately put restrictive abortion laws into effect. Kentucky, a trigger law state, promptly banned all abortions after six weeks of pregnancy with few exceptions and defined life as beginning at conception.

Now three Jewish women from Kentucky, arguing that the new anti-abortion laws are forcing Christian viewpoints upon all women regardless of their religions, have sued the state on the grounds that its abortion ban directly violates their deeply held religious beliefs.

Infertile Women Depend on IVF to Procreate

Due to health reasons, plaintiffs Lisa Sobel, 32, Jessica Kalb, 38, and Sarah Baron, 37, rely upon assisted reproductive technology, specifically in vitro fertilization (IVF), to procreate. According to their religion, and as stated in the lawsuit, “Procreation has a special place in Jewish law, thought, and tradition. While all Abrahamic religions value the divine injunction to ‘Be fruitful and multiply,’ Jewish births are of special significance to Jewish people today because of the genocide they suffered during the Holocaust, which destroyed much of world Jewry.” 

As a part of their Jewish faith, the women believe they are obligated to procreate, but with the process of IVF often creating a surplus of embryos, and the state now defining life at conception, IVF has become potentially dangerous legally. The process of IVF often produces multiple embryos, typically more than can be used. If women discard their unused embryos, do they face possible criminal charges for violating Kentucky’s abortion ban? Or do they continue to pay yearly storage fees to keep the embryos frozen via cryopreservation indefinitely to avoid possible prosecution?

Sobel was considering having another baby but now believes that any future IVF procedure and pregnancy could be physically and legally dangerous. She tells the Louisville Courier-Journal, “As a mom, as a woman, this directly affects me, it affects my health care. And then it’s a personal affront to my personal religious views, on top of it.  As somebody who is a person of faith, that’s just wrong to me.”

Kentucky Abortion Ban Threatens Legality of IVF

The lawsuit also states in two of its five counts that the vague and unintelligible verbiage of the Kentucky law provides “a path for the further erosion of reproductive rights.” It creates a “patchwork” of allowable reproductive practices that vary from county to county, with the interpretation of the vague law left up to the prosecutors or judges.

Attorney Ben Potash, representing the women, states in MSN, “Under the laws, it stands today, our clients could potentially be tried and perhaps convicted for capital murder for undergoing in-vitro fertilization. All it takes is one ambitious or vengeful prosecutor.”

Given the new law’s definition of the beginning of life, it is unclear if Sobel would be in legal trouble over any extra embryos, and with its vague terminology, it is unclear if she would have any legal rights to protect her health if she were to become pregnant and there were complications. With her first IVF pregnancy, Sobel says that she almost died during childbirth and goes on to say in the Journal, “Having a natural miscarriage at this point is a risk, because they have to talk to their lawyers, and they have to talk to the other doctors to determine whether this is a naturally occurring miscarriage. By the time they determine that, I could be dead.”

Plaintiff Kalb, who has one child conceived via IVF, has a remainder of nine frozen embryos but does not plan to have nine more children. According to WDRB, Kalb said in a press conference that even though she and her husband want to have more children, they have chosen not to have any more at this time as she does not want to become a criminal. She has yet to decide whether to donate the embryos or discard them. For now, the embryos remain in limbo, frozen in a cryobank, while Kalb must pay an exorbitant annual fee to continue to keep them there.

In her decision to put her pregnancy on hold, she says in MSN, “Now, my greatest fear is that I become pregnant, and I go to a scan, and they say, ‘Your baby is incompatible with life, and we can’t help you.’ Because that’s the reality right now in our state.”

State Abortion Bans May Criminalize IVF

The lawsuit states, “Jewish law (‘halakha’) asked and answered the question of fetal personhood thousands of years ago, and rabbis, commentators, and Jewish legal scholars have repeatedly confirmed these answers the in the intervening millennia.” It goes on to state, “While the fetus is deserving of some level of respect under the halakha, the birth giver takes precedence. Jews have never believed that life begins at conception. This belief belongs to certain Christian groups.”

The Kentucky women believe the new abortion laws infringe upon their right to practice their Jewish faith and are in direct violation of Kentucky’s Religious Freedom Restoration Act, which states that the government “shall not substantially burden a person’s freedom of religion.” In the Jewish faith, life is not defined at conception but rather at the moment the child exits the womb; therefore, frozen embryos are not considered life. Although it is not uncommon to discard unused embryos during the IVF process, according to the language of the Kentucky ban, intended parents and physicians may incur legal prosecution for doing so. In other words, Jewish intended parents could be prosecuted for following their religious beliefs, whether that is to discard their unused embryos or make a decision based on their religion if there is a complication during pregnancy.

Although similar cases have been filed in Florida and Indiana over abortion laws infringing upon religious freedoms in the Jewish community, this is the first case to pertain to IVF. The suit highlights an all-too-possible reality in which IVF and other reproductive technologies might face legal prosecution in the future.

The Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade and 50 years of legal precedent, has created potential hesitation for future IVF-intended parents and trapped thousands of current fertility patients in confusion and uncertainty about where their legal rights stand. This case will likely be only the first of many, as prospective parents, state legislatures, and the courts litigate these issues. If there is any bright spot on the horizon, it is the prospect that Congress could finally act to protect procreative and reproductive freedom. Codifying abortion rights into federal law would help protect both women’s rights to bodily autonomy and religious freedom, creating a definitive process void of state-to-state and county-to-county interpretation of abortion laws while also providing welcome clarity on these related and important assisted reproduction questions.