A Jefferson County judge has struck down part of Kentucky law that defined human life as beginning at conception, clarifying women who sued the state over the issue can pursue in vitro fertilization without fear of prosecution.
Five months after he heard arguments in a more than three-year old court case seeking to strike down Kentucky’s abortion ban and clarify the legality of in vitro fertilization (IVF) in the state, Jefferson Circuit Judge Brian Edwards said part of Kentucky law dealing with the definition of life is “void for vagueness.”
That part defined a human being as “an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.”
This is the latest in a long court case from women who want to have children via IVF but have said state law restricted their ability to pursue that freely. Three women sued in 2022. An appeals court let only one of them move forward, saying the other two did not have standing.
Lisa Sobel, one of the original three plaintiffs, said in a statement that the definition of human life Edwards struck “has hung over all Kentuckians, but especially IVF families.”
“This victory comes after years of telling deeply personal stories, reliving trauma, waiting for rulings, and wondering whether the legal system could see the full human cost of what these laws have done,” Sobel said in a statement. “For those of us who have gone through IVF, that fear was not abstract. IVF is how my husband and I became parents. It is part of our family’s story. And anyone who has lived through it knows it already asks so much of you: your body, your finances, your hope, your marriage, your faith, your ability to keep getting back up after disappointment. No one going through that should also have to ask, ‘Could the state prosecute me for this?’
“Today, the Court recognized that Kentucky’s laws created real fear and real confusion,” she said. “That matters.”
Lawyers for Jessica Kalb, the plaintiff allowed to move forward with the suit, have argued that Kentucky has a patchwork of laws that could complicate their client’s ability to safely continue with the IVF process, including discarding unneeded embryos and having access to a medically-necessary abortion.
They’ve also argued that Kentucky’s laws around abortion have imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.
Edwards did not agree with the religion argument. In his Friday ruling he said the Human Life Protection Act is “religiously neutral” and that it doesn’t burden the Jewish community “any more than it burdens followers of Christianity, Islam, or Hindu from exercising their religious beliefs.”
Sobel acknowledged the victory she feels is incomplete.
“The Court did not rule in our favor on our religious freedom claims, and that matters to me,” she said. “Jewish law has a clear, millennia-old answer to the question of fetal personhood — and it is not the answer Kentucky wrote into its statutes. I wanted the Court to see through the neutral-sounding language to the sectarian belief embedded within it.”
Kalb, the plaintiff, has nine frozen embryos that she’s paying to preserve; she sued because she did not know how to proceed with the IVF process under the state’s restrictions on abortion and definition of life.
The attorney general’s office argued that IVF is protected in state law and embryos that are not implanted in a person don’t fall under relevant homicide or abortion laws.
The Lantern has asked the attorney general’s office for comment on the ruling.
Kalb also has polycystic ovary syndrome (PCOS), which can cause cysts to form in the ovaries and lead to infertility. This condition also means her pregnancies are more likely to end in miscarriage and that she might need an abortion or other complicated interventions. Abortion is outlawed in most cases in Kentucky.
Attorneys Aaron Kemper and Ben Potash, who represent Kalb, said that while the ruling did not overturn the abortion ban, it could potentially open the door to more legal challenges.
“In significant part, those laws do rely on these definitions” of human life, Potash said.
Meanwhile, Kalb and the other women who initially brought the case should be in the clear to pursue IVF.
“I think this clears up all issues of IVF and reproductive access. I don’t think there could be any prosecution of IVF under this decision,” Kemper said. “Because if you strike down the definition that a human being is a fetus, then IVF should be completely clear.”
Eyes to legislature
Edwards’ ruling criticizes several parts of Kentucky’s law around abortion saying he “has other concerns regarding the general unintelligibility and vagueness concerns presented” but that clarification lies with the state legislature.
Edwards specifically cited a bill filed in the General Assembly this year that would have paved the way for homicide charges against women who get abortions. It never received a hearing.
The judge also referenced a January case in which a Wolfe County woman was initially charged with fetal homicide after taking abortion medication. That charge was dropped.
Still: “This Court can no longer dismiss the concerns raised by (Kalb) regarding how she and others should interpret what they can and cannot lawfully do in order to avoid possible incarceration and criminal prosecution,” Edwards wrote. “This conundrum can and should be resolved; however, the power to resolve rests not with this Court but with the Kentucky State Legislature.”
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Written by Sarah Ladd. Cross-posted from the Kentucky Lantern.
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