Jewish Women and an Atypical Challenge to Kentucky’s Abortion Ban
Since the Supreme Court’s overturning of Roe vs. Wade, states have responded with their own bans and restrictions on reproductive rights. In the face of the seeming implausibility of the passage of a congressional codification of Roe, pro-choice groups across the country have sought manifold efforts to fight abortion bans and protect abortion access. One such effort, which has propped up in multiple states but was most recently featured in a lawsuit in Kentucky, has garnered attention for its atypical argument against abortion bans.
On October 6, three Jewish women filed a lawsuit in Kentucky claiming the state’s abortion ban impinged on their religious freedom. This legal dispute mirrors those featuring other Jewish groups in states including Florida, Indiana, and Ohio. In the Kentucky case, the law in question – passed after the Supreme Court struck down Roe – defines fetal life as beginning at fertilization and bans nearly all abortions after six weeks. Further, the law presents a threat to those who wish to become pregnant through In-Vitro Fertilization (IVF), as it bars the removal of a fetus “throughout the entire embryonic and fetal stage,” which is sometimes necessitated when IVF treatment results in excess embryos.
According to the lawsuit, the “Plaintiffs’ religious beliefs have been infringed: they are Jewish and 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 in the intervening millenia.” In Jewish law, fetal life does not begin at fertilization; rather, the fetus is considered a part of the pregnant person’s body until birth. Judaism teaches that upon the baby’s first breath outside the womb, the soul enters the body, thus transmuting the fetus into a legally recognized individual. Moreover, as it pertains to Kentucky’s restrictive approach to exceptions for the life and health of the mother, abortion is required under Jewish law whenever the mother may be at risk.
The plaintiffs in this case also pointed to the aforementioned threat to IVF in making an argument not featured in the other Jewish challenges to abortion laws around the country. The three plaintiffs, each over the age of thirty, have expressed the role that IVF will need to play in their ability to conceive in the future, in pursuit of the Jewish responsibility to have children. The lawsuit states that the “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.”
The lawsuit argues that the abortion ban is in contrast to the principles of Jewish law, thus impeding the religious expression of the plaintiffs. If true, this burden on religious freedom would be in violation of Kentucky’s Religious Freedom Restoration Act. This argument reflects a tactic frequently used by Christian activists in counteracting legislation pertaining to the right to contraceptives (Burwell vs. Hobby Lobby), the responsibility to serve LGBTQ+ customers (Masterpiece Cake Shop vs. Colorado Civil Rights Commission), and other such cases. Thus, while some have celebrated this form of challenge to abortion bans, others have questioned the sagacity of using tactics typically weaponized by the right against right-wing legislation.
Since the fall of Roe, many legal arguments against abortion bans have emerged. The three women behind this Kentucky lawsuit – Lisa Sobel, Jessica Kalb, and Sarah Baron – have joined a nationwide effort of Jewish organizations to challenge restrictions on abortion. The utilization of Jewish law as a means of arguing that these abortion bans should not stand is a fascinating approach to this legal challenge. However, these challenges have not proven very successful so far. So too, activists advocating for an intersectional approach to reproductive rights and freedom have questioned the long-term wisdom of strengthening a religious freedom argument most frequently advocated by the Religious Right.
Jesse Eick is a freshman concentrating in International & Public Affairs and History. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jesse_eick@brown.edu.