L’Dor v’Dor: To Grow their Families, Jewish Moms Fight Kentucky’s Abortion Ban

By Ben Potash and Aaron Kemper
Guest Columnists

Ben Potash (LinkedIn)

Aaron Kemper (Kemper Law Office)

Jews believe in reproductive freedom. Of course, saying that Jews believe anything is tricky. There are, after all, three opinions in a room of two Jews. But even the most conservative Jews in the world have a more permissive view on abortion than does Kentucky law. Kentucky law defines life beginning at conception, and it defines a human life as nothing more than a sperm that has met an egg.  

When the nation’s Supreme Court killed reproductive freedom in Dobbs v. Jackson, we as Jews, Kentuckians, and attorneys felt the need to stand up and fight. Together with our brave clients — Lisa Sobel, Sarah Baron, and Jessica Kalb — we filed a lawsuit against then-Attorney General Daniel Cameron demanding our state courts overturn the obscene laws standing between mothers, their children, their doctors, and their God.  

The Louisville Jewish community has laid the groundwork for this lawsuit. The attorney-authors of this article met at summer camp at the Jewish Community Center in elementary school and lived together in college. Aaron has known Lisa since elementary school, and they attended Ballard High School with another Plaintiff, Sarah’s husband, Dustin.  

Collectively between the Plaintiffs and their children, we share the joy of raising six young daughters. Echoing the sentiment of l’dor v’dor, we wish to pass on a more just and compassionate world to our children, to further the future of the Jewish community, and build on the strong work that has been done for so long by organizations like the JCRC, the NCJW, and the Jewish Federation.  

Like many of the professional Jewish women we’ve met through those organizations and throughout our community, our clients rely on in vitro fertilization (IVF). We recently saw IVF’s legality called into question in Alabama when Alabama’s IVF clinics began to shutter. The law the Alabama court chose to interpret, their state’s so-called “Human Life Protection Act,” (HLPA) is word-for-word identical to Kentucky’s HLPA. A similar outcome is not only possible here, but because of the absurd ways these statutes are put together, it is the likely outcome unless we do something about it.  

Our lawsuit challenges the HLPA, and the body of abortion restrictions put into play by our legislature. Those laws deeply affect reproductive rights, particularly those concerning the use of IVF technologies, which two out of the three plaintiffs in this case have relied upon. Under the state’s definition of a fetus as a human life, our clients could be prosecuted for murder for discarding excess IVF embryos. This is the logical legal outcome of the HLPA law here.  

The state’s rigid stance also includes no exceptions for genetic anomalies or non-viable fetuses, which forces women to carry pregnancies to term despite the certainty that the fetuses will not survive childbirth. When those mothers miscarry at home, they may face criminal charges simply for surviving the ordeal.  

These draconian measures contradict our Jewish values. The commandment to “be fruitful and multiply” highlights the importance of procreation, viewing children as a profound mitzvah. However, Jewish law does not define life as beginning at conception, and it places a paramount importance on the preservation of life, especially a mother’s health — including mental health — above all. By providing no exceptions for a woman’s mental health or in cases of rape or incest, Kentucky’s legislation starkly conflicts with these values.  

As in Alabama, extremists pretended that we were delusional, that IVF was safe, that the law adequately protected mothers, and our case was pointless.  

It can’t happen here, they told us. The then-Attorney General drafted his own opinion, promising that he’d never prosecute our clients for undergoing IVF. The lawyers on the other side of our lawsuit called our claims “self-inflicted” and “fictional.” As Jews, our ears perk up when we hear others dismiss our concerns about the erosion of civil liberties with, “it can’t happen here.” We know all too well it can, and it already is.  

We have been in litigation in our local circuit court for over a year and a half. Both sides agree on the facts, the only remaining issues are legal. We are set for oral arguments on both parties’ motions for summary judgment. Regardless of who wins, the decision will be appealed. We are still at the early stages of this litigation, but with our community at our side and our faith to guide us, we are confident that justice will prevail. 

 

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