FILE - Exterior photo of the Kentucky State Capitol in Frankfort, Ky., Wednesday, April 7, 2021. On Friday, July 1, 2022, The Associated Press reported on stories circulating online incorrectly claiming Kentucky is considering legislation that would require women to submit to the state every month a statement from a doctor indicating if they are pregnant — or else face penalties. (AP Photo/Timothy D. Easley, File)
(RNS) — Three Jewish women in Kentucky have filed a lawsuit arguing that their religious rights are being violated by a set of state laws that ban most abortions.
The lawsuit, filed in Jefferson Circuit Court in Louisville, is the third such suit brought by Jewish organizations or individuals since the U.S. Supreme Court overturned Roe v. Wade in their ruling in Dobbs v. Jackson Women’s Health Organization. In all three suits — the first in Florida, the second in Indiana — the Jewish plaintiffs claim their state is infringing on their religious freedom by imposing a Christian understanding of when life begins.
Under current Kentucky laws, life begins at the moment of fertilization. Another law bans abortion after six weeks when cardiac activity is first detected.
Abortion will be on the ballot next month when Kentuckians decide the fate of a proposed constitutional amendment that would eliminate the right to abortion in the state.
“There are a whole patchwork of laws, passed over the last 20 years,” said Ben Potash, one of the lawyers who filed the complaint. “They’re internally inconsistent and, put together, very vague.”
Most Jews believe abortion is allowed, and in some cases, is even required.
“Judaism has never defined life beginning at conception,” the suit said, adding that “millenia of commentary from Jewish scholars has reaffirmed Judaism’s commitment to reproductive rights.”
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The women are not the first to challenge Kentucky’s abortion bans. The American Civil Liberties Union and Planned Parenthood sued that state shortly after the Dobbs ruling was handed down.
What’s distinct about the latest suit is that all three of the Jewish women require in-vitro fertilization to become pregnant but are afraid of beginning the procedure without greater clarity about what the law will permit them to do with excess frozen embryos. The suit claims that the women must spend exorbitant fees to keep their embryos frozen indefinitely, and they are unsure if they will face felony charges if they dispose of them.
Further, because pregnancies resulting from infertility treatments have a higher rate of stillbirth, the women foresee the possibility of not wanting to carry their IVF pregnancies to term if the fetus is not viable.
The law “does not impose clear standards, rules, or regulations regarding the potential experiences of potential birth givers with regards to their access to reproductive technology,” the suit claims.
In this sense the Kentucky suit is about women who want to give birth, not women who want to abort, said Sheila Katz, CEO of the National Council of Jewish Women, which is advising the women.
“It’s a scary time to be pregnant,” said Katz. “The state is telling them their life is not as valuable as the fetus. These women are saying, A: That’s against our religious tradition, and B, ‘You owe us with being less vague about what this will look like so we can start our families.’”
The suit, filed Thursday (Oct. 6), repurposes a legal tactic successfully used by conservative Christian groups in recent years.
In June, a Jewish congregation in Florida filed suit arguing the state’s 15-week abortion ban — signed into law by Gov. Ron DeSantis — prohibits Jewish women practicing their faith free of government intrusion.
In September, a group called Hoosier Jews for Choice sued, claiming, among other things, that the Indiana law banning abortion violated the state’s Religious Freedom Restoration Act.
The NCJW is supporting and advising Jews in all three states where the abortion restrictions are being challenged in court.
The women claim the abortion ban also violates Kentucky’s Religious Freedom Restoration Act. That law states that government “shall not substantially burden a person’s freedom of religion” unless it proves a compelling interest and uses “the least restrictive means” to do so.
“If you’re Jewish, you’re having a very narrowly defined idea of when life begins imposed on you that is incongruent with our religious beliefs of when life begins,” said Lisa Sobel, 38, one of the women in the lawsuit.
She said she met the other plaintiffs, Jessica Kalb and Sarah Barton, through Louisville’s Jewish community. All three require IVF treatments to have children.
“When Dobbs came down,” said Sobel, referring to Dobbs v. Jackson, the landmark Supreme Court case that struck down a constitutional right to abortion, “we didn’t know what to do.”
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