Among the slew of challenges to state abortion laws after the decision in Dobbs v. Jackson Women’s Health Organization, a newly filed action in Kentucky may be one of the most creative. The complaint by three Jewish women from Louisville seeks to block the state trigger law on the basis that it violates their religious rights since they do not believe that life begins at fertilization under Jewish law, or Halakha. I am highly skeptical of the religious claims, which have also been made in other states.
The complaint below states “Judaism has never defined life beginning at conception” and “millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.”
Kentucky defines “an unborn child” as beginning when an egg is fertilized and abortion is prohibited once fetal cardiac activity is detected at roughly six weeks. There are exceptions to prevent a pregnant woman’s death or a “substantial and irreversible impairment of a major bodily function.”
The women are citing Halakha that defines a human life at birth rather than conception. It flips the script on past religious based arguments against abortion and say that Kentucky “has imposed sectarian theology on Jews.”
The complaint (below) is also different in that these women insist that they want to become pregnant but must use in vitro fertilization, in which a human egg is fertilized with sperm in a laboratory and then implanted in the uterus.
Given the definition of a human life, they argue that, once fertilized, they could not destroy the eggs under the abortion law.
Lisa Sobel, the lead plaintiff in the lawsuit, is the mother of one child through IVF. She also argues that, if there are problems in the pregnancy, she would not be able to secure an abortion in the state.
Plaintiff Jessica Kalb is still paying to store nine frozen embryos for possible future use for a pregnancy. The third plaintiff, Sarah Baron, is the mother of two who is considering an IVF procedure.
The religious challenge under Kentucky’s Religious Freedom Restoration Act is based on the mandate that the government “shall not substantially burden a person’s freedom of religion” unless it proves clear and convincing evidence of a compelling governmental interest and uses the least restrictive means to further that interest.
The claim, in my view, is facially weak. Having a more protective law on the issue of human life is not a cognizable violation under the law. While advocates reference past such pro-life challenges on religious grounds, those challenges were not successful. Dobbs was based on the view that the Constitution does not contain a right to abortion, not that such a right is barred under the religious clauses.
The Plaintiffs have a more credible claim based on vagueness. The law is not a model of legislative drafting. Two of five counts in the complaint rely on vagueness and the lack of clarity. However, a court could easily adopt a logical interpretation that the destruction of a fertilized egg outside of the womb is not an abortion. The law states that the crime is tied to an actual pregnancy (emphasis added):
No person may knowingly:
1. Administer to, prescribe for, procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being; or
2. Use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing.
The law defines “pregnant” to mean “the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.”
It is true that the act defines “unborn human being” as “an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.” However, the criminal provision itself refers to an actual pregnancy within the body of a woman.
I do not share the view that the law, despite its poor drafting, makes “IVF … legally dangerous if not impossible.” More importantly, I do not think that most courts would take that view throughout a trial and appellate process. The portrayal of the law as a “theocratic” measure will be hard to maintain in such litigation.