Coleman
FRANKFORT, Ky. - A woman can sue over Kentucky’s abortion ban because it casts doubt on whether she can proceed with in vitro fertilization, an appeals court ruled, in a case that also raises questions about religious practices.
Jessica Kalb and two other women sought a declaratory judgment that Kentucky’s abortion law was unconstitutional because it was uncertain whether it made in vitro fertilization a criminal act. The law makes it a capital offense to cause the death of an “unborn human being.”
In vitro fertilization involves the harvest of multiple eggs that are fertilized outside the body and would be considered unborn children under the most rigorous religious belief that life begins at conception. As part of that process, some fertilized eggs may be destroyed or donated to other women.
Kentucky Attorney General Russell Coleman pledged the state had no intention of prosecuting anyone over in vitro fertilization but the plaintiffs argued it was still a real threat that caused them to avoid going through the procedure. The appeals court agreed.
“While we acknowledge this pledge, we also acknowledge that the fifty-seven Commonwealth Attorneys in this state could elect to prosecute regardless of the assurance of the Attorney General,” the appeals court said in a July 11 decision.
The trial court dismissed all three cases for lack of standing and the appeals court upheld two of the dismissals, saying there was no evidence the plaintiffs were involved in IVF treatments or have embryos in storage.
“They simply state that they might want to have children in the future,” the court said. “This is too speculative and does not create an impending injury.”
Kalb, however, has nine embryos frozen and awaiting implantation, the court said, and her decision about what to do with them “is being thwarted by her uncertainty surrounding the abortion laws.”
“This is not a speculative issue because these embryos currently exist, and Ms. Kalb is entitled to know her options without fear of potential legal peril,” the court concluded. At trial, the court added, she may raise arguments her Jewish faith requires her to increase her family and multiply.
