Three Jewish women sue Kentucky over abortion ban, say it violates their faith

Suit claims legislation barring abortions runs counter to Jewish law, also cite state rule forbidding government from infringing on freedom of religion

Abortion rights supporters chant their objections at the Kentucky Capitol on April 13, 2022, in Frankfort, Kentucky. (AP/Bruce Schreiner)
Abortion rights supporters chant their objections at the Kentucky Capitol on April 13, 2022, in Frankfort, Kentucky. (AP/Bruce Schreiner)

LOUISVILLE, Kentucky (AP) — Kentucky’s sweeping abortion ban was challenged Thursday by three Jewish women who brought a lawsuit arguing that it violates their religious rights under the state’s constitution.

The legal challenge, filed in state court in Louisville, says the state’s Republican-dominated legislature “imposed sectarian theology” by prohibiting nearly all abortions. The lawsuit bears similarities to legal challenges to abortion bans in at least two other states.

“Plaintiffs’ religious beliefs have been infringed: they are Jewish and Jewish law (“halacha”) asked and answered the question of fetal personhood thousands of years ago and rabbis, commentators and Jewish legal scholars have repeatedly confirmed these answers in the intervening millenia,” the Kentucky lawsuit reads. “While a fetus is deserving of some level of respect under halacha, the birth giver takes precedence. Jews have never believed that life begins at conception.”

Kentucky’s Republican attorney general, Daniel Cameron, signaled he will fight the lawsuit, which names him as a defendant. Cameron has defended the state’s abortions restrictions in various courts, touting his anti-abortion stance in his campaign for governor. The gubernatorial election will be in 2023.

“The General Assembly has made it clear that Kentucky will protect unborn life and these laws are an important part of the commonwealth,” Cameron said Thursday in a statement.

It’s the latest attempt to strike down Kentucky’s far-reaching abortion prohibitions, but the newest suit offers another legal twist by basing the challenge on religious grounds.

Kentucky’s Supreme Court has set a November hearing in another case challenging the abortion restrictions. The high court allowed the near-total ban to remain in place while it reviews that case.

Abortion-rights activists react after hearing the Supreme Court decision on abortion outside the Supreme Court in Washington, Friday, June 24, 2022. (AP/Jacquelyn Martin)

Also, abortion will be on the ballot next month when Kentuckians decide the fate of a proposed constitutional amendment that would eliminate the right to abortion in the state.

The lawsuit filed Thursday in Jefferson County Circuit Court in Louisville delves into theology and medical science. The question of when human life begins, it reads, “is a religious and philosophical question without universal beliefs across different religions.”

“Judaism has never defined life beginning at conception,” the suit said, adding that “millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.”

“Under Jewish law, a fetus does not become a human being or child until birth,” it said.

The abortion ban also violates Kentucky’s Religious Freedom Restoration Act, the women said in their lawsuit. That law states that government “shall not substantially burden a person’s freedom of religion” unless it proves a compelling interest and uses ”the least restrictive means” to do so, it noted.

“As a mom, as a woman, this directly affects me, it affects my health care,” Lisa Sobel, one of the three women who filed the suit, told the Louisville Courier-Journal. “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.”

Sobel filed the suit alongside Jessica Kalb and Sarah Baron.

Demonstrators protest about abortion outside the Supreme Court in Washington, June 24, 2022. (AP Photo/Jacquelyn Martin)

The suit also claims that Kentucky’s abortion law infringes on constitutional religious rights in regard to use of in vitro fertilization. Two plaintiffs have a child conceived through IVF, the suit said.

The IVF process often results in surplus embryos that must either be kept frozen at high costs or discarded by the clinics with the consent of the donors, the lawsuit reads.

“Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges” under the state’s fetal homicide law, the suit said.

“This dilemma forces plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious beliefs,” it added.

The Kentucky case echoes lawsuits that were filed in Florida and Indiana to block state abortion bans on the grounds that the measures violate religious freedom.

Members of the crowd holding signs that read ‘This is not a game,’and ‘B”H (Thank God) for Abortion’ at a pro-abortion rights rally organized by the National Council of Jewish Women in Washington, DC, May 17, 2022. (Julia Gergely)

Kentucky’s legislature enacted a “trigger law” banning nearly all abortions that took effect after the US Supreme Court Court in June stripped women’s constitutional protections for abortion. The only exception under the Kentucky law is when the health of the mother is threatened.

Lawmakers also passed a separate six-week ban. Those laws already are being challenged by the two remaining clinics in Kentucky that provide abortions, both in Louisville.

American Jews support abortion rights more than any other religious group, according to polling. Non-Orthodox Jews have been at the fore of advocacy against the current sweep of abortion legislation, while some Orthodox groups have said they applaud the Dobbs v. Jackson decision while still believing that abortion should be permitted in some cases.

Scholars of Jewish law largely agree that it requires abortion when the pregnant person’s health is at risk, though there is disagreement about what constitutes such a risk.

JTA contributed to this report.

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