KY woman’s abortion ban challenge on religious, IVF grounds can continue, court rules
AI-generated summary reviewed by our newsroom.
- Appeals court ruled Jessica Kalb has standing to challenge KY abortion ban.
- Ruling marks first challenge to KY abortion law to advance on case merits.
- Embryo storage costs and IVF disruption deemed sufficient injury for standing.
A Kentucky appeals court has ruled that a Jewish woman who sued the state in 2022 over its abortion ban has the necessary legal standing to challenge that law.
The appeals court based its unanimous ruling off of the precedent from a 2016 case in which a thoroughbred horse owner was granted standing to sue the state racing commission for preventing his horse from competing in an out-of-state race because of Kentucky’s restrictive regulations.
Jessica Kalb, a mother in Louisville, has the right to challenge Kentucky’s abortion ban because she has directly been harmed by the law, Chief Judge Larry Thompson explained in a July 11 ruling, joined in his opinion by judges Susanne Cetrulo and Jeff Taylor.
Kalb was one of three Jewish women to sue the state three years ago soon after Kentucky’s abortion ban, or trigger law, took effect, which limits pregnancy terminations in all scenarios except when a pregnant woman’s life was immediately in danger.
Kalb, who has one child and has experienced challenges getting pregnant again, has had to rely on in vitro fertilization. She pays roughly $800 annually to store nine embryos, her attorney Ben Potash told the Herald-Leader, with the goal of eventually implanting some in her uterus in hopes of becoming pregnant.
Since the ban took effect in 2022, she has already canceled one planned implantation, worried that the inadvertent termination of one of her embryos through the IVF process could result in her or her provider being charged with violating the abortion ban.
Under the ban, an embryo is considered an “unborn human being,” and the charge for “knowingly . . . causing or abetting the termination of the life of an unborn human being” is a Class D felony.
This constitutes as legal injury under the law, which gives Kalb standing to continue her challenge, Thompson, Cetrulo and Taylor said in the unanimous ruling.
Their ruling kicks Kalb’s lawsuit back down to a lower court, where her lawyers will get to argue the merits of her case. It’s the first time since abortion was criminalized in Kentucky that a legal challenge to that ban will be argued on its merits, allowing courts to weigh in on whether the it’s constitutional.
‘Not a speculative issue’
Kalb, Lisa Sobel and Sarah Baron — all mothers who have each experienced trouble getting pregnant — first sued the state in 2022, arguing that the Human Life Protection Act threatens to punish them for using IVF to get pregnant.
Under that act, life, or an “unborn human being,” begins at “fertilization,” spanning “the entire embryonic” process. That means an embryo is a person under Kentucky law — a definition Kalb said puts her at risk of criminal liability, should her in vitro fertilization process cause the destruction of one or more of her embryos, which she’s currently paying to store in sub-zero temperatures at an in-state facility.
Kalb, Sobel and Baron also argue that beyond the ban being “vague,” “unintelligible” and “punitive,” it conflicts with their respective Jewish beliefs, which define life as beginning at birth, not fertilization. The current abortion ban gives preference to Judeo-Christian beliefs, effectively diminishing the rights and religious freedoms of Jews, they’ve said.
Up until now, the three women and their attorneys, Ben Potash and Aaron Kemper, have been arguing to be granted standing.
In June 2024, Jefferson Circuit Judge Brian Edwards said none of the three had standing, because their fears were too hypothetical and they were not immediately injured by the law.
The appellate court on Friday agreed that Sobel and Baron don’t meet the legal requirement of standing, but Kalb does, because she continues to pay for her embryos to be in storage and she’s canceled one previously scheduled implantation for fear of the trigger law’s repercussions.
“We reverse the summary judgment as it pertains to Ms. Kalb because her injuries are not too speculative and satisfy the standing requirement for a declaratory judgment action,” Thompson wrote.
To challenge a law, a person or entity must show they have standing, or the right, to challenge that law because they have been injured by it. Determining standing can be a squishy concept that’s somewhat subjective and not always consistent from court to court.
Since Kentucky’s trigger law took effect after the fall of Roe v. Wade, four lawsuits have been filed in Kentucky challenging the ban.
The first, filed by Louisville’s Planned Parenthood and EMW Women’s Clinic, made it to the Kentucky Supreme Court. But justices essentially declined to grant the case full standing, saying providers could not challenge the law on behalf of their patients; they were not directly injured, but their patients were.
That ruling, legal scholars told the Herald-Leader, made it harder to challenge in court than in nearly any other state with an abortion ban. It meant that a woman needed to be pregnant and actively in need of an abortion to sue. Two women in this window have since filed lawsuits, both under pseudonyms — Jane Doe and Mary Poe. But both were eventually withdrawn by the plaintiff or their attorneys.
The lawsuit from Kalb, Sobel and Baron was different. Each wanted to become pregnant again, but the vagueness of the ban, coupled with the potential criminal liability for destroying an “unborn human being” in the IVF process, thwarted all three from trying to get pregnant.
Lower courts have said all three womens’ cases were too hypothetical to constitute actual injury under the law. The three-judge panel agreed in its 15-page ruling with that finding for Sobel and Baron — their injuries were “too speculative,” they said — but Kalb could show “imminent injury.”
They settled on this conclusion, in part, citing a 2016 case brought by Jerry Jamgotchian, a California-based thoroughbred horse owner.
Kentucky’s horse-racing regulations required one of Jamgotchian’s horses, a bay filly named Rochitta, whom he purchased at Churchill Downs in Louisville in 2011, could not be sold or raced anywhere else but Churchill for 30 days.
Jamgotchian entered Rochitta into a race in Pennsylvania less than a month after her purchase, but she never raced during the probationary period, in part because of the racing regulations. Though he was never fined for violating the state regulations, Jamgotchian eventually sued the Horse Racing Commission, arguing the state’s regulations violate the U.S. Constitution’s Commerce Clause.
The commission argued that because he wasn’t penalized, he didn’t have standing to sue. But a court disagreed, as the appellate judges referenced in their ruling.
“Because Mr. Jamgotchian was eligible to purchase more horses at Churchill Downs, showed an interest in doing so, and demonstrated an intent to flout the regulations, he had the required standing and was allowed to challenge the regulations,” Thompson, Cetrolo and Taylor wrote.
In her case, “Ms. Kalb has shown a similar interest and intention. (She) currently has nine embryos frozen and awaiting implantation, disposal or donation. She also canceled an embryo implantation in 2022 due to her uncertainty surrounding Kentucky’s abortion laws,” they said. “Her decisions as to what to do with her frozen embryos is being thwarted by her uncertainty surrounding the abortion laws. Her injury is impending because she has shown she wants to use the frozen embryos but is unsure of her options.
“Should she continue to do so in perpetuity because the government will not clarify what she can and can’t do with them? No. This is not a speculative issue . . . and Ms. Kalb is entitled to know her options without fear of potential legal peril.”
‘Kentucky law is clear’
Many Republicans who support Kentucky’s abortion bans have said they want to preserve access to IVF.
But after the Alabama Supreme Court in early 2024 ruled that embryos frozen outside the womb are considered live children, Republicans and Democrats alike scrambled to preserve access by amending current statute to make clear that embryos are not human beings. But those efforts never panned out.
Both Kentucky’s and Alabama’s abortion bans classify an embryo as an “unborn” child.
Kentucky Attorney General Russell Coleman called on lawmakers last year to focus on “safeguarding access to IVF,” describing it as “an incredible blessing for so many seeking to become parents.”
Coleman said in a statement Tuesday that state “law is clear. Access to IVF is fully protected for Kentuckians hoping to grow their families We are confident the circuit court will agree once again.”
But that aspect of the law has not been amended, and the intentional destruction of an embryo is still considered to be in violation of the state’s abortion ban, Potash and Kemper have said.
Potash said Tuesday morning he hopes to get the case back in front of a Jefferson court “as soon as possible.”
