Lisa Sobel, right, Sarah Baron, center, and Jessica Kalb, left, filed a challenge to Kentucky's abortion law in 2022. An appeals court allowed Kalb to proceed with the challenge. (Kentucky Lantern photo by Sarah Ladd)
LOUISVILLE — Jefferson Circuit Judge Brian Edwards once again heard arguments Monday in a three-year old court case seeking to strike down Kentucky’s abortion ban and clarify the legality of in vitro fertilization (IVF) in the state.
Lawyers for Jessica Kalb argued that Kentucky has a patchwork of laws that could complicate their client’s ability to safely continue with the IVF process, including discarding unneeded embryos and having access to a medically-necessary abortion.
The attorney general’s office argued that IVF is protected in state law and embryos that are not implanted in a person don’t fall under relevant homicide or abortion laws.
Edwards initially ruled against Kalb when she was one of three Jewish women seeking to challenge Kentucky’s abortion ban on religious grounds, finding none of the women — who want to expand their families through in vitro fertilization (IVF) — had standing to challenge.
Jewish woman’s challenge of Kentucky’s abortion ban gets green light from appeals court
An appeals court, however, found that while the other two women do not have standing, Kalb does. That ruling then sent her back to Edwards’ court, resulting in a new round of oral arguments to hash out the case. Standing is the question of whether plaintiffs’ circumstances meet legal standards entitling them to challenge the law.
Kalb has nine frozen embryos that she’s paying to preserve and doesn’t know how she can proceed with the IVF process under the state’s restrictions on abortion and definition of life. She also canceled having an embryo implanted in 2022 because she was unclear what interventions she would have under Kentucky’s near-total ban on abortion.
She also has polycystic ovary syndrome (PCOS), which can cause cysts to form in the ovaries and lead to infertility. This condition also means her pregnancies are more likely to end in miscarriage and that she might need an abortion or other complicated interventions.
After Monday’s hearing, Kalb said she still wants to grow her family, and the uncertainty around the case — which was filed in October 2022, months after the United States Supreme Court overturned the constitutional right to abortion — leaves her with many questions about how she can do that.
“This is hard. This is always hard. I’d really like it to be not still going on,” she said. “I think that everybody here wants the same thing. We all want to be able to safely have children in Kentucky. And right now, we can’t. I can’t.”
At 35, Kalb will be considered “geriatric” in any future pregnancy. Her risk of complications increased at this age, according to the Cleveland Clinic.
“I think that the lawyers did a fantastic job today pointing out statutes that apply to the embryos. I still think there’s a lot of kind of skew as to focusing on the non-life that exists in those petri dishes and not focusing on the life that is here: Me, my life as a mom, my daughter who deserves to have a mom,” Kalb said. “And I think that we’re still fighting the wrong fight in some capacity. We’re not really looking at the bigger issue, which is, what is motherhood? What is being a pregnant person in the state of Kentucky right now, and how do we make that safe?”
Lindsey Keiser argued for the Kentucky attorney general’s office — which is named as a defendant — on Monday that Kalb “can freely engage in the conduct she desires to undertake without legal consequences or fear of prosecution” when it comes to implanting and disposing embryos.
“IVF is a procedure, in the plaintiff’s words, to assist with pregnancy, not to terminate it, and disposing of embryos that have not been implanted is not conduct to or upon a pregnant woman,” Keiser said. “Therefore, the Human Life Protection Act prohibitions simply do not apply.”
Kalb’s lawyers, Benjamin Potash and Aaron Kemper, have argued that Kentucky, in heavily restricting abortion, has imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.
Keiser on Monday said that the idea that life begins at conception is not inherently a religious or exclusively Christian idea.
“Not all Christians hold that idea, and there are certainly religious groups outside of Christians who hold that idea as well,” she said.
While speaking with reporters after the hearing, Kemper said that idea sidesteps the religious freedom point.
“I don’t want to get into an argument about what is or is not Christianity,” he said. “We know it’s not a Jewish ideal. Our clients are Jewish, and Judaism does not define life (as beginning at) conception. And that is clear.”
Keiser did not speak with reporters after the hearing.
Keiser, representing the attorney general, argued that the appeals court ruling that gave Kalb standing on questions about the IVF process doesn’t extend to the abortion ban. For Kalb to maintain that if she became pregnant and if a complication required her to get an abortion are “speculative” claims and “not sufficiently concrete.”
Potash said Kalb is far from asking for a “carte blanche” to do whatever she wants. She’s asking the court for a “pretty precise, limited remedy,” he said.
As it stands now, Kemper said after the hearing, people like Kalb have a “pinky promise that they won’t prosecute” and that the attorney general is asking citizens to “‘just have faith my (successor) will be like me,’ which is just not good enough.”
Edwards ended the hearing by saying he would “get something out as quickly as possible.”
The judge, Potash said afterward, “is taking the case very seriously, and we’re going to have a sober and reflective decision from this court, and we look forward to the next steps.”
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