Kentucky AG files appeal after judge strikes down portion of pro-life law

Kentucky Attorney General Russell Coleman has filed an appeal after a judge ruled that the definition of "human being" within Kentucky's pro-life law is "vague and unintelligible."

Lawyers arguing for the Plaintiff in the case have also filed an appeal, as the judge ruling in the same case dismissed the Plaintiff's claim that the law violates religious freedom.

Key Takeaways:

• Earlier this month Jefferson County Circuit Court Judge Brian Edwards struck down a portion of Kentucky's Human Life Act, saying the definition of human being was "vague." However, he dismissed a claim that the law violates religious freedom.

• Attorney General Russell Coleman has asked Edwards to reconsider his ruling, saying he made a "manifest error of the law" in calling the language unconstitutional.

• Coleman doubled down on the state's support of IVF, saying the state's abortion law does not apply to the disposal of human embryos created via IVF.

• Aaron Kemper and Benjamin Potash, attorneys for the plaintiff in the case, have also filed an appeal, arguing that the pro-life law violates the religious beliefs of their Jewish client.

The Backstory:

Earlier this month, Jefferson County Circuit Court Judge Brian Edwards struck down a portion of the state's Human Life Protection Act, which protects nearly all preborn children from abortion. Edwards said the law is "unconstitutionally void for vagueness," because the definition of "human being" within the law is "vague and unintelligible."

The state defines "human being" as "any member of the species homo sapiens from fertilization until death."

Notably, in his ruling, Edwards did not place an injunction, or halt, on any portion of the law.

Edwards' ruling was seen as a partial victory for Jessica Kalb, a plaintiff in the case, who had argued that because the state defines human beings as "any member of the species homo sapiens" beginning at fertilization, she was unable to proceed with in-vitro fertilization (IVF) for fear of prosecution.

Though Edwards did rule against that portion of the law, he dismissed Kalb's claim that the law violated her religious freedom, as he said instead the law is "religiously neutral," and does not burden the Jewish community  “any more than it burdens followers of Christianity, Islam, or Hindu from exercising their religious beliefs.” 

The Details:

On May 11, Coleman filed a motion of appeal, arguing that Edwards made “a manifest error of law” when ruling that the state's definition of human being was vague. In his appeal, Coleman also doubled down on the state's support of IVF, arguing that the the state’s “prohibition of abortions does not apply to IVF, including to the disposal of unused embryos,” while also saying that prosecuting those who practice IVF “is a gross over-reading of the Human Life Protection Act.”  

“There is … no basis to conclude that the definition of ‘unborn human being’ … could ever be used as a basis for a homicide prosecution against Ms. Kalb,” he wrote.

Kalb's attorneys, Aaron Kemper and Benjamin Potash, have also filed an appeal, as they, too, were unsatisfied with Edwards' ruling.

The duo argued that the pro-life law “forces (Kalb) to plan her family under a statutory definition of ‘human being,’ that her sincerely held Jewish faith expressly rejects. Jewish law teaches that life begins at birth, not at conception, and that the life and health of the mother take priority over the developing fetus,” they wrote.

Because the state's law does not contain exceptions for things like the mother's mental health or cases of rape or incest, the lawyers say it “thus compels (Kalb) to govern her religiously commanded family planning by a doctrine her faith rejects, on terms her faith forbids.”   

However, in an op-ed detailing the Jewish pro-life position, the President of the Jewish Pro-Life Foundation, Cecily Routman, MSW, noted that Jewish law does not support abortion. "Jewish law considers abortion to be murder. Moses ben Maimon (Maimonides), an influential Torah scholar, rabbi, legal authority, physician and philosopher, declared in his compilation of Jewish law, the Mishneh Torah: “The definition of murder according to the Noahide Laws includes a person ‘who kills even one unborn in the womb of its mother,’ and adds that such a person is liable for the death penalty," she wrote.

The Bottom Line:

The squabbling on both sides fails to consider that all preborn children — even those in the smallest embryo stages — are human beings worthy of protection. Science is clear that life begins at the moment of fertilization. There is no process, procedure, or religion that makes it a right to destroy that human life.