Case: Sobel v. Cameron

This is a case about Kentucky’s abortion laws (Revised Statutes KRS 311.710 et seq.), and the ways in which they allegedly restricted religious freedom. The statutes posed a complete ban on abortions, beginning at fertilization, and provided exceptions only to save the pregnant person's life and/or to prevent serious risk to the pregnant person's physical health. The statutes also made it a felony for physicians to perform an abortion on a viable fetus except to preserve the life and health of the mother.

On October 6, 2022, three Jewish women filed suit in Kentucky state trial court in Jefferson county. Plaintiffs sued Kentucky Attorney General Daniel Cameron and Jefferson County Attorney Thomas Wine, in their official capacities, under the Kentucky Religious Freedom Restoration Act (KRFRA) and Section 5 of the Kentucky Constitution, which provides that no preference shall be given to a specific religious sect, and that the civil rights of any person shall not be taken away or diminished on account of his belief. Represented by private counsel, the women sought a declaration that the statutes (specifically KRS 311.715) are void, a preliminary injunction enjoining defendants from taking any action that would prevent or otherwise interfere with the ability of the plaintiffs to get healthcare as directed by their religious beliefs, and attorney’s fees. 

Plaintiffs alleged several claims, arguing that the statutes were void for vagueness and unintelligibility, and that they unconstitutionally gave preference to sectarian Christian beliefs. First, they alleged the KRS 311.715 was void for vagueness and unintelligibility. A statute is meant to provide fair notice of prohibited conduct and Kentucky’s abortion law, plaintiffs argued, provided insufficient guidance on how law enforcement officials would treat individuals who had undergone IVF. The statute left it unclear whether discarding embryos during IVF was a prohibited capital offense. Additionally, one of the plaintiffs had nine preserved fertilized embryos in cold storage. She didn’t know if, or how, she would be penalized for terminating them if she wanted to do so, or whether she was responsible for paying for their preservation indefinitely. IVF treatment also frequently involves at least one nonviable pregnancy. Plaintiffs argued that the law was unclear as to whether they had to carry every nonviable pregnancy to miscarriage, or whether they could still try to conceive through IVF knowing it could involve a nonviable pregnancy. As a result, they couldn’t determine whether they were prevented from having children at all.

The second claim was filed under the KRFRA. The Kentucky abortion statutes defined life as beginning at conception, contrary to the predominant belief in the Jewish faith. Teachings in the Jewish faith state that a fetus does not become a human being until birth. The women argued that by forcing a definition of life on them that directly contradicted their religious beliefs, Kentucky’s legislature imposed sectarian theology on Jewish people, thereby violating their religious freedom.

The plaintiffs’ final two claims were regarding violations of Section 5 of the Kentucky Constitution. The women alleged that the Kentucky state legislature’s adoption of the abortion statutes violated Section 5 because they gave preference to sectarian Christianity, and diminished plaintiffs' privileges, rights, and capacities on account of their Jewish faith.

On October 26, 2022 the case was removed to the United States District Court, Western District of Kentucky and the case was reassigned to Judge Rebecca Grady Jennings. However, on December 13, 2022 the Court granted Plaintiffs' motion to remand.  The Court granted the motion by reasoning that all five causes of action failed all four Grable test factors and therefore did not constitute federal claims and that the Attorney General failed to meet his burden to prove that the case was subject to removal. 

The parties filed motions for summary judgment in April 2023. The Clearinghouse has not been able to access the state court docket but will post updates when possible. As of March 29, 2024 this case is ongoing.