Louisville Circuit Judge Brian Edwards rejects Jewish women’s religious challenge to Kentucky’s near-total ban on abortions

By Heather Close Published July 1, 2024 FEATURED, HEALTH POLICY, YOUR HEALTH

Jefferson Circuit Judge Brian Edwards has ruled against a lawsuit by three Jewish women challenging Kentucky’s abortion ban on religious grounds.

In a nine-page opinion issued Friday night, Edwards said the women do not have standing and that their concerns are “hypothetical.” Citing several earlier cases, the judge said the issue was not yet a concrete problem and lacked “ripeness.”

“Individuals cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,” Edwards wrote. Therefore, “Plaintiffs have failed to demonstrate the existence of a justiciable controversy as defined by generations of case law.”

The ruling came more than a month after the judge heard oral arguments, which heavily focused on in vitro fertilization (IVF) and the extent to which it overlaps with the state’s abortion ban.

One of the plaintiffs has nine frozen embryos that she’s paying thousands of dollars annually to preserve, just as Kentucky lawmakers are split on what protections exist for IVF in the state.

The women’s lawyers, Benjamin Potash and Aaron Kemper, argued that by banning most abortions, Kentucky had imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.

They also said the plaintiffs — Jessica Kalb, Sarah Baron and Lisa Sobel — feel Kentucky’s current laws around abortion inhibit their ability to grow their families.

Benjamin Potash, one of the lawyers for the plaintiffs, told the Lantern that the decision “makes numerous obvious errors,” such as basing part of the ruling on a reading of Roe v. Wade, which established a federal right to abortion but was overturned in 2022 by the U.S. Supreme Court.

Assistant Attorney General Lindsey Keiser defended the law on May 13 for the Attorney General Russell Coleman, who praised Friday’s decision “to uphold Kentucky law.”

“Most importantly, the court eliminates any notion that access to IVF services in our commonwealth is at risk,” Coleman said in a statement. “Today’s opinion is a welcome reassurance to the many Kentuckians seeking to become parents.”

Potash said the judge’s decision is “disappointing” and said “we look forward to review by higher courts.”

“After 13 months of waiting, we received a nine-page decision that we feel fails to comport with the law,” he said. “Our nation is waiting for a judiciary brave enough to do what the law and our traditions require.”