Enacted in 2013, Kentucky’s “Religious Freedom Restoration Act,” has been used to champion conservative causes ranging from tax incentives for a Noah’s Ark theme park in Grant County to the right of churches to stay open during the pandemic shutdown.
Now, three Jewish women from Louisville argue that same law protects their reproductive rights as they seek to overturn two state laws that together essentially ban abortion in Kentucky.
In the lawsuit, they argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth.
"Jews do not consider life to begin at conception; this religious belief is forced on them by the government,” their lawyers said in a recent court filing. “Kentucky’s laws are Christian in origin and design and impugn the faith of Jewish Kentuckians.”
But Republican Kentucky Attorney General Daniel Cameron, who is defending the abortion laws — and who has invoked the religious freedom act in other cases including to challenge pandemic restrictions on churches and Christian schools — argues it doesn’t apply in this case.
“Kentucky’s abortion laws are not specifically directed at religious practice,” said a recent court filing on behalf of Cameron, who is a GOP candidate for governor. “Even if abortion is allowed by some religious denominations, abortion is not a religious practice.”
The three women, all mothers, say they would like to have more children but fear the potential impact of Kentucky’s laws on needed fertility treatments or prenatal care in case of complications that could disrupt a pregnancy or force them to carry to birth a malformed fetus at personal risk.
“Kentucky law forces a mother to give birth to a child who will immediately die, perhaps painfully, instead of allowing the fetus to be medically removed,” said the court filing on behalf of Lisa Sobel, Jessica Kalb and Sarah Baron.
One of the laws known as the “trigger law,” banned abortion once the U.S. Supreme Court overturned the federal constitutional right to abortion, which it did last year in striking down the 1973 Roe v. Wade decision. The other bans abortion after about six weeks of pregnancy, once cardiac activity is detected in an embryo.
The laws permit abortion only to save the life of a pregnant patient or prevent disabling injury.
Jewish teaching “prioritizes the mother’s life over the potential life of a fetus,” said the women’s lawsuit.
A separate challenge to the two abortion laws is nearing its 12th month in Jefferson Circuit Court, with no immediate resolution. In that case, Kentucky’s two former abortion providers, EMW Women’s Surgical Center and Planned Parenthood, argue abortion rights are protected by the state constitution and seek to overturn the trigger law and six-week ban.
The state Supreme Court in February sent that case back to circuit court after refusing to block enforcement of the abortion laws and also, narrowing grounds on which EMW and Planned Parenthood may challenge them.
Meanwhile, the Jewish plaintiffs are proceeding on a separate track based on claims of religious freedom though their lawsuit also argues Kentucky’s “slapdash” compilation of abortion laws created in recent years is vague and contradictory.
That case was filed in October and recently picked up steam amid a flurry of motions from both sides asking Jefferson Circuit Judge Brian Edwards to rule in their favor. The judge has given parties until May 17 to submit further pleadings.
Cameron has cited the religious freedom act in challenges to pandemic orders of Gov. Andy Beshear, a Democrat, that temporarily closed churches and Christian schools, as well as other legal actions including a Louisville photographer seeking the right to refuse to take photos at same-sex weddings.
In a recent court filing, lawyers for Cameron said the purpose of the abortion laws is to “protect human life.”
A spokeswoman for Cameron’s office declined to comment on the case, other than to say “our filing speaks for itself.”
Lawyers for the women who filed the lawsuit have asked the judge to rule in their favor, arguing state abortion laws are problematic for reasons beyond religious freedom.
The more than a dozen state laws meant to ban or limit abortion “contain multiple contradictions, omissions and ambiguities” that make them impossible to understand or follow, said the filing by lawyers Aaron Kemper and Benjamin Potash.
Beth Salamon, state policy advocate for the Louisville chapter of the National Council of Jewish Women, said religious freedom should apply to reproductive rights.
“The faith-based narrative has been monopolized by Kentucky Right to Life,” Salamon said. “There’s a different narrative out there.”
Her organization supports the women who filed the lawsuit — and recently awarded them the “Jewish Voice for Choice Award” for stepping forward as plaintiffs.
“They are putting a name on this case and I think that’s incredibly brave,” she said.
Samuel Marcosson, a constitutional law professor at the University of Louisville Brandeis School of Law, said the challenge based on religious freedom raises interesting issues.
“It’s clever,” he said of the legal strategy. “It flips the burden on the state to justify its law.”
But first, he said, the plaintiffs must establish “standing,” the legal right to pursue the lawsuit.
That has become an obstacle in the other lawsuit by Planned Parenthood and EMW after the state Supreme Court found they lacked standing as clinics to challenge the six-week ban on abortion without adding a client who had been affected by the law.
Cameron’s office, in its recent motion, argued in the case based on religious freedom, that the three women lack such standing and therefore, the judge should rule against them through a summary judgment.
“None of the plaintiffs have constitutional standing,” it said. “Their only alleged injuries are hypothetical.”
Their lawyers disagree.
“Plaintiffs’ injuries are that they are prevented from having more children,” their filing said. “No rule of law requires plaintiffs to undergo an abortion for religious reasons, or be jailed or sued, before bringing this action.”
This story was originally published by the Kentucky Lantern and republished here with permission.
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