LOUISVILLE — Lisa Sobel thinks any Kentuckian who has a uterus should have standing to challenge the state’s abortion ban.
The Kentucky Supreme Court and, more recently, a judge in Louisville, disagree.
Meanwhile, Sobel, one of three Jewish women challenging the ban on religious grounds, says she’s left in a “holding pattern.” She is afraid to risk having another child in a state where physicians must wait to terminate a pregnancy until a patient is at risk of dying.
Sobel’s lawsuit is the second challenge to Kentucky’s abortion ban to run aground on the issue of standing without advancing to an examination of the laws’ merits or constitutionality. Standing is the question of whether plaintiffs’ circumstances meet legal standards entitling them to challenge the law.
Jefferson Circuit Judge Brian Edwards ruled in June that Sobel and her co-plaintiffs — Jessica Kalb and Sarah Baron — lack standing because they are not pregnant or currently trying to conceive by in vitro fertilization (IVF). Therefore, he said, the harms they allege in their lawsuit are “speculative” or “hypothetical.”
That followed the Kentucky Supreme Court’s ruling in 2023 that abortion providers could not challenge the ban on behalf of their patients.
The Supreme Court ruling poses “a massive hurdle,” said Angela Cooper of the American Civil Liberties Union of Kentucky, “by asking someone who is navigating an unwanted pregnancy to pause pursuit of their medical care to file a lawsuit.”
The rulings have left the ban in place and the path for its opponents unclear but still open.
Edwards, in ruling against Sobel and her co-plaintiffs, also acknowledged “serious concerns regarding the substantive constitutionality” of Kentucky’s abortion laws — concerns that he said “will ultimately need to be revisited and addressed by the Kentucky Supreme Court.”
Sobel’s lawyers, Benjamin Potash and Aaron Kemper, have filed an appeal that could return the larger questions to the state Supreme Court, which will soon have a new member.
Chief Justice Laurance VanMeter isn’t seeking reelection this year. His 5th Supreme Court District seat will be filled either by Pamela Goodwine, a Kentucky Court of Appeals judge and former circuit and district judge in Lexington, or Erin Izzo, an attorney from Lexington. The race is nonpartisan, but Democratic Gov. Andy Beshear, who opposes Kentucky’s abortion ban and calls it extreme, has endorsed Goodwine, and his political action committee has contributed $2,100 to her campaign.
University of Louisville constitutional law professor Sam Marcosson said Edwards and the state Supreme Court took a “very narrow” view of standing — and that there is room in the law for the new Supreme Court to relax its standing demands if the justices have the appetite to do so.
“I think that’s certainly possible, at least something the Supreme Court could do,” he said. “Whether it will or not, whether the makeup of the court will make that more likely? Impossible to say at this point.”
Marcosson noted the U.S. Supreme Court that overturned abortion rights has recently avoided ruling on the merits in two abortion cases. The court had the chance to limit access to mifepristone, which is used in medication abortions, but did not. On the other hand, the court had a chance to “protect abortion rights” in an Idaho case and did not.
Marcosson said the decisions suggest “the court doesn’t want to continue, at least for the time being, having abortion on its docket and reaching cases on the merits, the way they did when they overruled Roe.”
Who has standing to challenge Kentucky’s abortion ban?
There are a few scenarios in which a person would have clear standing to challenge Kentucky’s abortion law, said Marcosson.
“A woman who is, in fact, pregnant and wants to obtain an abortion that would be, or might be, illegal under Kentucky law — that’s the obvious scenario,” he said. Such a person could later miscarry or have the baby and “standing wouldn’t change.”
Another scenario, hinted at by the Edwards decision, is if a person is actively undergoing IVF while suing, Marcosson said.
But, it’s unclear if she would need to be actively taking injections to release eggs and trigger ovulation. “I think that’s the weakest part of the opinion to me,” Marcosson said.
Someone who is at risk of injuries could have legal standing, he explained. “The law of standing has always said that injuries … don’t have to actually have already been incurred,” he said. “You can sue to prevent injuries.”
So, one could sue based on a hypothetical, and different judges and a different court could see it differently than Edwards did.
“Anytime you have a case involving prevention of future injury, the question is always going to be, well, how certain does the court have to be that the injury will occur, and how soon will it occur?” Marcosson said. “There’s no bright line for that.”
Potash and Kemper take issue with the judge basing part of his rejection of their lawsuit on a reading of Roe V. Wade. Marcosson said that while this is “noteworthy and eye popping” it’s “not unprecedented.” A decision can be overruled for one purpose while the reasoning behind other parts of the decision remains valid for use in future cases, Marcosson said.
Sobel thinks only one thing should determine standing. “Anybody who has a uterus in the state of Kentucky should have standing on this issue,” she said.
IVF is not a ‘fairy tale’
Unlike Judge Edwards, the women and their lawyers do not see theirs as a hypothetical situation at all.
Kentucky abortion law states that an embryo is an “unborn human being” from egg fertilization to birth, a Christian belief not shared by Jewish people. The women argue the abortion law violates the Kentucky Religious Freedom Restoration Act. That definition in Kentucky law also makes them uneasy about trying to conceive through IVF, which involves destroying or indefinitely storing fertilized eggs; they also fear what would happen if a wanted pregnancy went wrong and they lacked access to abortion.
The lawyers say the courts and legislature have not offered the reassurance the women and others like them need that IVF is protected.
One of the plaintiffs, Kalb, has nine frozen embryos right now that she’s paying thousands of dollars annually to preserve. The 33-year-old doesn’t plan to carry nine children, and worries about what she can legally do with the rest of the embryos at a time when Kentucky lawmakers disagree on what protections exist for the IVF process.
... the Court does acknowledge serious concerns regarding the substantive constitutionality of KRS 311.772 and these questions will ultimately need to be revisted and addressed by the Kentucky Supreme Court.
– Jefferson Circuit Judge Brian Edwards
In the 13 months while she waited for a ruling, Sobel, who conceived her three-year-old daughter through in vitro and would like to have another child, said, “I have met with multiple doctors for gynecological procedures.”
“So, to just write me off because … I’m not currently paying to move forward with IVF, and saying that I’m not seeking it, is really unfair,” she said.
The process takes a lot of time, and she also has to make sure her body is “ready to accept” the treatments.
“At any given time, you could be happily going along and then your doctor says, ‘hey … we have to push pause,’ or ‘we need to make a change because your hormones are out of whack,’ or ‘your lining isn’t perfect,’ and so then you have to go and take a side road before you can get back on the main track.”
Potash acknowledges that Attorney General Russell Coleman has said that IVF is protected in Kentucky but points out that local prosecutors are not bound by Coleman’s statement.
Sobel’s interpretation of Edwards’ June ruling is “the judge doesn’t understand what the process of IVF and being part of the infertility community is like.”
IVF isn’t the “fairy tale” way of starting a family, she said, in which “you went out for a nice, romantic night, you had sex, and magically, six weeks later, you find out you’re pregnant.”
It involves an intricate process involving shots, egg retrievals, mixing eggs with sperm in a lab, and implantation. There are usually eggs leftover in this process, which can be donated, stored or discarded.
“I don’t want to get to the point,” Sobel said, “where I’m stuck paying indefinitely for embryos I can’t use because I don’t want to face criminal prosecution.”
Storing them can cost thousands annually. The women fear prosecution if they are forced to discard embryos, a common part of the IVF process.
“I’m still young enough that should I choose to do more rounds of (in vitro fertilization) I could,” said Sobel, 40. “That might not be the same in five, six years. But right now, my safest option for my health and my well being is to continue to wait to get clarity from the court system on whether or not IVF is truly protected, and the only way to do that is to take out the fetal personhood laws that are on the books.”
Addia Wuchner, a former legislator and the executive director of the Kentucky chapter of Right to Life, which opposes abortion, sees IVF as being protected in the state, in line with the attorney general’s position.
“If anyone is projecting fear or concerns,” she told the Lantern, “it’s misplaced.”
What happens next
“A random bank of judges” within the Court of Appeals will consider arguments from both sides, Potash said, who added “we’re looking forward to some review.”
Meanwhile, Marcosson said the state Supreme Court does have a pathway to change its rules of standing, if the appeal of the Edwards ruling or someone with a “stronger case for standing” reaches the high court.
But since “two judges can take a very different view of how speculative the harm really is, and how impending it really is,” the appeals panel could side with the women on the issue of standing and return their case to the circuit judge for further consideration.
The American Civil Liberties Union of Kentucky is still looking for an opening and plaintiffs to challenge the law. Cooper said that despite the state Supreme Court’s “unprecedented and impractical demand” on standing, “we are undeterred in our commitment to restoring access to abortion care in the Commonwealth, and the legal path remains open, however fraught with obstacles it may be.”
Meanwhile, Sobel feels she must wait out the case before making decisions to expand her family because of the potential harm to her health.
“My one option is … not to take the risk of dying,” she said. “Which is really what I’m faced with here, is that I’m stuck between a rock and a hard place.”
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Written by Sarah Ladd. Cross-posted from the Kentucky Lantern.
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