Lisa Sobel longed to be a mother, envisioning the “fairy tale” moment when she finally found out she was pregnant.
Reality for Sobel, 38, and her husband proved to be a “shocking and crazy and heartbreaking” experience. They tried to conceive for years without success. After a lot of prayer, two rounds of in vitro fertilization, tens of thousands of dollars in medical costs, a high-risk pregnancy and nearly bleeding to death while giving birth, Sobel is now the mother of a healthy little girl.
But as badly as Sobel wants to have more children, she said Kentucky’s current laws surrounding reproductive health are preventing her from trying for another baby.
“At this point, I’m scared to try and have another child,” she told the Herald-Leader in an interview Tuesday. “If I miscarry, I could bleed out before the doctors and the lawyers could decide whether or not they could treat me or if I needed to be prosecuted, and that’s not a risk I’m willing to take for myself or my child or my husband.”
That’s why Sobel and two other women — all of whom are Jewish mothers living in Louisville who face reproductive challenges — are suing Kentucky Attorney General Daniel Cameron in an attempt to strike down the commonwealth’s abortion ban and fetal personhood law.
In a lawsuit filed Thursday in Jefferson County Circuit Court, the three plaintiffs and their attorneys argue those laws are vague, unintelligible and give preference to Christian beliefs in a way that diminishes the rights and religious freedoms of Jews.
“In Judaism, reproductive health of a mother is between the mother, her rabbi and her doctor — not the attorney general,” Louisville attorney Aaron Kemper said.
Kentucky’s abortion law, which bans nearly all abortions except in cases where there is risk of death or substantial risk of death of the pregnant person, is already being challenged in court by the state’s two outpatient abortion clinics. The Kentucky Supreme Court will hear the case, but not until November 15, by which point Kentucky voters will have decided on whether or not to amend the state constitution to make clear there is no guaranteed right to an abortion.
Cameron, a Republican who is campaigning to be elected governor in 2023, has vowed to defend the state’s laws.
“Although we have not received the complaint, I am committed to defending Kentucky’s pro-life laws,” he said in a statement. “The General Assembly has made it clear that Kentucky will protect unborn life and these laws are an important part of the Commonwealth.”
The suit is among the first of its kind in the nation, as Jewish groups in Florida and Indiana are challenging laws that restrict access to abortion on the grounds of religious freedom. In Jewish law, life does not begin at conception, and abortion is not only allowed, but required in circumstances where it would protect the life and health of the pregnant person.
The Kentucky suit, however, is the only one of the three in which the women — Sobel, Jessica Kalb and Sarah Baron — publicly attach their names to the complaint. The five plaintiffs in Indiana, three of whom are Jewish, are anonymous, and the Florida suit was filed by a congregation.
Benjamin Potash, who also represents the Louisville plaintiffs, said these anti-abortion laws are “using a very specific philosophical and religious understanding about what the moment of humanness is.
“That is a very specific religious understanding from a very specific group of folks,” Potash said. “Simply put, it’s just not our belief, and we’re having that belief imposed upon us by the legislature.”
Who are the plaintiffs?
The June lawsuit filed by the Congregation L’Dor Va-Dor in Boynton Beach, Florida, shortly before the Supreme Court’s official Dobbs opinion overturning Roe vs. Wade was released, served as the inspiration for the Louisville complaint. Kemper and Potash wanted to try a similar challenge, and Sobel was willing to sign her name to it, alongside two of her good friends.
All three women have have endured challenges in becoming mothers. Kentucky’s laws make their situations that much more difficult, they argue in the suit.
Sobel’s first round of IVF resulted in four embryos, none of which were “compatible with life” due to four distinct genetic anomalies. A second attempt produced just two embryos; the first implantation didn’t take, but the second is now her daughter.
Through it all, Sobel says she and her husband were “guided by our faith.” Many in the local Jewish community donated to help with the costs of IVF. Sobel turned to her faith before signing paperwork authorizing the destruction of the four embryos. She’d go into a ritual bath before her embryo transfers and kept her daughter’s name a secret until her official naming ceremony.
“For us, these Jewish traditions were so integral to our experience of becoming parents,” she said. “I think that it is so special that we live in a time where assisted reproductive technologies exist and are available to allow people like myself to become parents, but it’s really scary right now. Anything that I would need at this point is in question as to whether or not it’s legal or how legal it is. The state is mandating how many children I can have.”
Like Sobel, Kalb, 32, went through IVF in order to have her daughter, she said at a press conference Thursday. Her IVF resulted in 10 blastocysts, nine of which remain frozen.
“Transferring my daughter was amazing and I’m so glad that I have her,” Kalb said. “She’s the joy and light of my life. We completely intended, and still hope to be able to do, a sibling transfer with one of those other embryos. Right now in Kentucky, I don’t feel like that’s possible for me — or safe.”
Kalb also spoke of the possibility of having embryos that are incompatible with life, meaning they would not survive pregnancy or birth, or would die shortly after.
“Going through fertility treatment before this law came into effect, that was my biggest fear,” she said. “I was so afraid I was gonna get pregnant and go to a scan and hear, ‘Your baby’s not compatible with life.’ After this law, that’s no longer my greatest fear. Now, my greatest fear is that I become pregnant, and I go to a scan and they say, ‘Your baby’s incompatible with life, and we can’t help you.’
“Because that’s the reality right now in our state.”
And Baron, 37, has two children, but faces a higher risk of passing along genetic anomalies, like the fatal Tay-Sachs disease, should she choose to have more kids, the suit says.
Daniel Grossberg, a Democratic state representative-elect and Jewish activist, said many Jewish women “wouldn’t even consider” having kids without reproductive freedom.
“Jewish women are not going to get pregnant if they know that they’re going to get that scan and be told, ‘you’re forced to carry this to term and suffer and the fetus who will become a baby will have to suffer as well,’” Grossberg said.
Across denominations of Judaism, there is agreement that saving the life of the parent giving birth takes priority over the fetus, though there is some disagreement about elective abortions. Jewish law also interprets health risks to includes mental and emotional health; Kentucky law does not and makes no exceptions for pregnancies resulting from rape or incest.
Grossberg pointed out the lawsuit has widespread support among Jews, including the National Council of Jewish Women, the Jewish Federation of Louisville, the Jewish Community Relations Council and “multiple synagogues, rabbis and cantors.”
What does the lawsuit say?
In addition to being in conflict with millennia-old Jewish law, the suit also goes after the abortion laws for having “little to no relationship with scientific understanding of fetal development” and being “internally contradictory, vague and unintelligible.”
Kemper and Potash also argue Kentucky’s laws as written could be interpreted in a way that makes discarding unused embryos resulting from IVF into the capital offense of fetal homicide.
“We have no guidance on this,” Kemper said. “No one has prosecuted so far, but there’s 120 counties in Kentucky. All it takes is one (prosecutor) to read that a fertilized egg is a human being and say, ‘You know what? I found out that person discarded their IVF embryos. I think I’m going to prosecute them.”
“Prosecute the patient. Prosecute the doctor. Prosecute the nurse. Prosecute the people who funded the procedure,” Potash added. “Any of these things potentially could happen. All it takes is one — sometimes elected official, sometimes an unelected bureaucrat — to make that jump and say, ‘We’re going to prosecute this as a capital offense.’”
The suit, which also names Jefferson County Commonwealth’s Attorney Tom Wine as a defendant, says Kentucky’s laws are so unclear that “without protections for these medical procedures, IVF becomes legally dangerous if not impossible.”
Additionally, the suit says the trigger law “runs afoul” of the Kentucky Religious Freedom Restoration Act by violating “the religious freedoms of Jewish birth-givers.”
It continues: “Forcing a mother to deliver a dead fetus to term, or one that will certainly die moments after birth, does not advance a governmental interest to protect fetal life, is contrary to Jewish law, severely damages the mental health of the mother, is flatly cruel and degrading, does nothing to promote ‘life’ and serves no legitimate purpose at all.”
Cameron has positioned himself as “leading the way in the battle to protect the unborn” on both the websites of his office and his campaign, and his office has repeatedly gone to court to enforce Kentucky’s anti-abortion laws.