By Andrew Adler
Community Editor
It was not the result Lisa Sobel, Jessica Kalb and Sarah Baron were hoping for on June 28, 2024, when a Jefferson County Circuit Court judge dismissed their lawsuit challenging Kentucky’s hyper-restrictive abortion statutes.
They’d argued that laws regarding embryos produced via in-vitro fertilization as people conflicted with their Jewish beliefs, which hold that personhood begins when the fetus can survive outside the womb. But Judge Brian Edwards tossed their lawsuit on the grounds that the plaintiffs lacked standing to sue, saying that since the three women weren’t pregnant or undergoing IVF procedures when their suit was filed, they were arguing potential, not actual, injuries.
“In the case before this Court, the alleged injuries of the three Plaintiffs are hypothetical as none are currently pregnant or undergoing IVF at the present time,” Edwards wrote in his nine-page decision. “Accordingly, the Court simply cannot find that the Plaintiffs have shown ‘the existence of an actual controversy respecting justiciable questions.’”
Edwards’ ruling was not exactly a shock. “We knew from the get-go that our biggest hurdle to overcome was going to be standing,” says attorney Ben Potash, who along with colleague Aaron Kemper is representing the three women. “Every time that anyone center-left tries to challenge the law, the first go-to from our conservative tradition is standing, which is a legal fiction created to act as a gatekeeper to justice.”
Moreover, the two lawyers believe that Edwards’s legal reasoning was inherently flawed. “The statute he was referring to is how Kentucky treats when challenging laws that have a criminal component,” Kemper says. “There’s 100 years of case law in Kentucky that says you don’t have to commit any act that can be criminalized before challenging it. It’s enough to say, ‘I want to commit the act, but I’m afraid that if I commit this act, I will be prosecuted.”
Indeed, “you can turn to Lisa because she is actually suffering as a result of these abortion laws,” Potash says. “This is not speculative. The reason she doesn’t have a second child is because of these laws, so that’s an injury.”
Beyond acknowledging that the rules regarding legal standing involved are “arcane and complex,” Kemper and Potash are careful not to make any public statements that might compromise their intended petition to the Kentucky Court of Appeals. The wheels of appellate jurisprudence turn slowly, so it could be a year or more before a decision is handed down.
Yet if patience is a necessary virtue regarding legal strategy, impatience often comes into play in the realm of fertility. All three women were employing IVF in their respective efforts to start or grow a family. Because a woman’s fertility declines with age, the window for a successful IVF conception shrinks commensurately. And there is no guarantee that the resulting embryos will themselves be viable.
“You can’t just do like a one-off,” explains Sobel, the suit’s lead plaintiff. “Some lawmaker, I think in Iowa, suggested: ‘Oh, they’ll just harvest one egg and one sperm and put them together.’ No, scientifically that’s not how it works. “The question then becomes: “Do you have extra embryos, God willing, that are viable?” Sobel says. “In my case, they were not. And the more fetal-personhood laws we have on the books, the more at-risk our assisted reproductive technology becomes, because you can’t divorce those two issues.”
Parties to the lawsuit had swung into action soon after the U.S. Supreme Court issued its landmark decision in Dobbs v. Jackson Women’s Health Organization on June 22, 2022. That decision held that the Constitution did not guarantee a woman’s right to an abortion, overturning the key provisions of Roe v. Wade, which had been the law of the land for almost half a century.
“The day the Dobbs decision came out, I immediately reached out to Jessica Kalb as a friend,” Sobel recalls. “I was, like, ‘What are we doing about this?’ (because) This impacts, literally, every aspect of our lives in terms of being mothers trying to become mothers again. But we didn’t really know at that point what our options were.”
The Temple became a kind of clearinghouse for information and action. Kemper was a member; Sobel’s husband worked there. Soon Potash, whose small law firm included Kemper, signed on.
Sobel proved a conspicuously persuasive advocate, realizing as well that she had vital allies in the two lawyers. Passions ran high. “The more I talked with Ben and Aaron, sharing my IVF story with them, and they explained how the fetal-personhood law impacts those of us going through IVF who have a high likelihood of creating non-viable embryos,” Sobel says, “the angrier I became.”
Facelessness would not do. She told the two lawyers: “I think the best course of action is to have me as Plaintiff One – put my name, put my story, put my face out there,” Sobel said. “No more fictitiously drawn images of fetuses – there needs to be moms’ faces, how this affects those of us with uteruses.”
Their pivotal legal argument turned on a foundational melding of law, science, and faith – specifically, Judaism. At the heart of this lawsuit – in fact, its very basis – is the intersection of Jewish tradition and modern scientific methodology. But who else would lend their voices to the cause?
“We decided that I would reach out to my network of Jewish women,” Sobel says, “to see who might want to hop on a Zoom call and learn more about the lawsuit, and then determine which way we would go. They’d know that if I’m getting behind an issue, it means something. We had about 20 people on Zoom. Then Aaron and Ben did their due diligence, talking to anybody who’d expressed interest in potentially joining the lawsuit.”
Seeing it summarily dismissed, even though not entirely surprising, still stung. “The judge stated in his opinion that we didn’t have standing, because none of us were currently pursuing IVF or were pregnant from use of IVF,” Sobel says. “I would like to point out that it took him 13 months to come to that decision. Pregnancy is only nine months, (but) IVF is generally longer than 13 months. So when we talk about families – I’ll use his words, ‘who are pursuing IVF’ or pursuing assisted reproductive technologies – there is generally a lot of time around that process. It takes a highly trained medical professional, and lots of time, to figure out what’s going on with your body. In my case — from start to finish, finding out that we couldn’t have children the normal way, to having our daughter – was 2 ½ years.”
And what do you do with embryos that are no longer needed? Donate them? Discard them? The latter choice could carry grievous legal consequences under laws that say embryos are human beings. David Cameron, Kentucky’s attorney general when the lawsuit was filed, said that women who underwent IVF procedures and then had unused embryos destroyed would not face criminal prosecution. His pronouncements were not much of a comfort.
“Here’s the long and short of it,” Potash says. “First of all, Mr. Cameron is no longer in office (Russell Coleman was elected AG this past November), so we can’t pick on him too much. And he issued two advisory opinions. Okay, what’s an advisory opinion? It’s exactly what it says: ‘I advise you that this is my opinion as attorney general. But the attorney general is not a Commonwealth prosecutor – he does not have the discretion to pursue or not pursue charges on the county level. However, any of the 120 counties can add a Commonwealth’s Attorney that disagree with that opinion and (can) in fact bring those charges.”
Meanwhile, 40-year-old Sobel’s biological clock ticks on. “I think it’s important to understand that the court system moves very slowly, which all of us plaintiffs knew was going to be a thing,” she says. “But because Judge Edwards took his time, my window of fertility is closing. That’s reality. And if you say that men are making these laws – men can have children in their 80s and 90s. For women, that’s just not the case. So more and more women are going to have to make hard decisions about whether they can start or grow their families in the state of Kentucky using these technologies.”