In Sobel v. Coleman, (KY Cir. Ct., May 1, 2026), a Kentucky state trial court issued a declaratory judgment holding that the definition of "human being" in the Kentucky abortion statute is void for vagueness. The suit was brought by a Jewish woman who wants to become pregnant through the transfer one of nine embryos created during previous IVF treatment. She contends that the statutory definition of "human being" as any member of the species homo sapiens from fertilization to childbirth creates uncertainty as to whether she could be prosecuted over the subsequent disposal of unused embryos.
While Kentucky’s Fetal Homicide Statute expressly exempts persons participating in IVF treatments from prosecution, the state's general homicide law contains no such exception. The trial court said that reliance on a 2004 Kentucky Supreme Court case that found that the definition of "human being" in one Kentucky law could not be applied to the general homicide statute is unwarranted because that opinion was rooted in a discussion of "viability" as used in Roe v. Wade.
The trial court went on to say:
Kentucky is one of many states in our nation grappling with questions of reconciling post-Dobbs abortion restrictions with accessibility to IVF processes. However, whereas other states have addressed this legitimate concern through legislative action, our Commonwealth has attempted to address this concern merely through the procurement of non-binding Attorney General Opinions....
As reflected in the ... Attorney General’s non-binding advisory opinion, a prosecutor today may read the statute as clearly providing no such avenue for the prosecution of Ms. Kalb for her involvement in IVF processes. However, Ms. Kalb and others seeking to expand their families through IVF procedures have no binding assurance against the possibility that a prosecutor tomorrow interprets the statute differently and uses it as the basis for a prosecution.
The trial court however rejected a second claim by plaintiff that Kentucky's abortion laws violate the Kentucky Religious Freedom Restoration Act. The court said in part:
Plaintiff argues that the first commandment of her Jewish faith instructs her to “be fruitful and multiply”. Plaintiff wishes to honor this commandment through the use of IVF. Plaintiff argues that the HLPA, which currently provides no specific exemption for IVF and which defines human life as beginning at the moment of conception, places an unconstitutional burden upon her ability to honor her religious commandments through IVF processes....
... Plaintiff is a woman of Jewish faith and to be fruitful and multiply is the first commandment in the Torah, the foundational text of Judaism. Be fruitful and multiply is also a foundational principle for Christians as articulated in Genesis 1:28 and often referred to as the “creation mandate”. Similar commandments or mandates are present in the holy texts of other religions including Islam and Hindu....
However, the Court does not believe that the HLPA unconstitutionally burdens Ms. Kalb from exercising her religious beliefs any more than it burdens followers of Christianity, Islam or Hindu from exercising their religious beliefs. Thus, any burden created by the HLPA is a religiously neutral, general burden upon virtually any Kentuckian of faith seeking to participate in IVF. The United States Supreme Court has effectively held that a government act that places a neutral and generally applicable burden upon individuals of differing religious beliefs is constitutionally permissible....
Louisville Public Media reports on the decision.
