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Intro: Welcome back to Can We Talk?, the podcast of the Jewish Women’s Archive, where gender, history, and Jewish culture meet.

When the Supreme Court issued the Dobbs decision overturning Roe v Wade, it eliminated the constitutional right to an abortion and left it up to individual states to make their own abortion laws. As of April 2023, it is now essentially illegal to have an abortion in fifteen states. That means limited to no access to terminating a pregnancy. But many people don’t realize that these bans also affect people who want to get pregnant. 

Jessica Kalb is one of those people. The day the news broke about Roe, she knew her life had changed. She was driving home to Kentucky after a family trip, when her phone pinged.

Jess: And I just started sobbing. I was first heartbroken and then so angry, I was seeing red.

Jen: Jessica knew that Kentucky was one of the states with a trigger ban, a law that would essentially outlaw abortion once Roe was overturned. As she sat in the car fuming, a friend called her.  

Jess: And she said, what are we gonna do? And I said, I don't know. We're either gonna fight it or move. And she said, we can't leave all of Kentucky sitting back here by themselves. We gotta figure this out.

Jen: Jessica’s friend, Lisa Sobel, was worried about people in Kentucky who would need abortions. But she knew an abortion ban could also affect people undergoing fertility treatment. She herself had gotten pregnant using in vitro fertilization, or IVF.

Lisa knew she wanted to do something to fight the Dobbs decision, but she wasn’t sure what. Then a lawyer friend named Aaron Kemper told her about a lawsuit filed by a synagogue in Florida. The suit claimed that Florida’s ban on abortions after fifteen weeks violated Jews’ religious freedom. Lisa and Aaron talked about filing a similar lawsuit in Kentucky.

Lisa: And through that conversation, it became very clear that I, as a mom who is being affected by IVF and who is Jewish and very strong in my values and very tied to Kentucky, needed to be involved.

Jen: Lisa became the first plaintiff in Sobel v Cameron (Daniel Cameron is   Kentucky’s Attorney General, and he’s currently running to be the state’s next governor). She reached out to other Jewish friends to see if they wanted to join the lawsuit. Jessica signed on. Another friend, Sarah Baron, took a little more time to deliberate.

Sarah: I'm probably the last person who would, you know, speak up in a lot of different scenarios, not just this one.

Jen: She knew the lawsuit could put her in the spotlight, but she decided this was too important to shy away from.

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Jen: Sarah, Jessica, and Lisa’s lawsuit is the latest in a series of suits brought by Jews who claim their state’s abortion bans violate their religious freedom.

But a couple of things make their lawsuit different. For one thing, they chose to be named in their legal complaint; in other states, the plaintiffs are anonymous. The Kentucky lawsuit also makes a key claim the others don’t: that the state’s abortion ban violates people’s right to grow their families.

In this episode of Can We Talk?, we bring you a story about the far-reaching consequences of the Dobbs decision, and three Jewish women who are fighting back.

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Jen: To understand why the rights of people undergoing fertility treatment are central to the Kentucky lawsuit, it’s important to hear what Lisa, Jessica, and Sarah went through to get pregnant. Their list of challenges will sound familiar to anyone who’s faced infertility: months of trying and failing to conceive naturally, hundreds of painful injections, tens of thousands of dollars, and agonizing days of waiting for good news. For Lisa, the struggles weren’t over even after her daughter was born. During delivery, a piece of the placenta was left behind in her uterus. Suddenly, her life was in danger.

Lisa: And as I'm being rushed into surgery and I'm saying the Shema and I'm coming in and out of consciousness, all I hear from my doctor who had been very calm was “Get her under, I'm losing her.”

Jen: Thanks to a great medical team, Lisa made it through shaken, but okay. A few years later, Lisa, Jessica, and Sarah all have healthy kids, ranging in age from two to four. And even after everything they went through to have them, they’d all like to do it again. They all want to grow their families. But without the constitutional protections Roe offered, they say the Kentucky law presents too many risks. It makes the already fraught process of going through fertility treatment much more complicated—legally, medically, and emotionally.

For Sarah, the biggest issue is that she’s now 38, considered “advanced maternal age.” That means she’s at a higher risk for all kinds of complications, including miscarriage. Kentucky’s abortion law can make miscarriage dangerous, even life threatening. That’s because some miscarriages require medical intervention for the safety of the mother. But the new Kentucky law bans any termination of a pregnancy. So if a miscarriage begins while the fetus still has a heartbeat, it’s not clear that a provider can legally intervene.

Here’s how Jessica puts it:

Jessica: So if I have a fetus inside of me that has a heartbeat, but no skull, no brain, and is decaying, but still has a heartbeat, I have to wait until my body starts to shut down to get that procedure. Because as long as that fetus has a heartbeat in my state right now, it is more important than my life until I can prove that it is destroying my life.

Jen: When Roe was overturned, experts started sounding the alarm about exactly these situations. The day the Dobbs decision came out, Dr. Iffath Abbasi Hoskins, president of the American College of Obstetricians and Gynecologists, said: "It's going to be very difficult for us, the clinicians, to manage miscarriage…clinicians may be thinking that they have to wait. They may be needing to get additional opinions, whether it's a legal opinion, whether it's another medical opinion."

Taking that extra time when someone is bleeding out from a miscarriage could endanger their life.

Sarah: If I did have a miscarriage, I just wouldn't want to go through that experience and risk my life, when I have two kids at home who are depending on me.

Jen: Some people who miscarry need what’s called a dilation and curettage, or D&C. It’s a procedure that clears out the tissue in the uterus that sometimes isn’t completely expelled during a miscarriage. That’s what happened to Jessica a few years ago when she miscarried at fourteen weeks.

Jessica: I was hemorrhaging, I was bleeding profusely because my body was trying to discard that dead tissue and was unable to.

Jen: Jessica asked her doctors about her chances of needing another D&C in the future.

Jessica: And their response was, you are ten times more likely to need a D&C than someone who doesn’t have fertility struggles.

Jen: Jessica worries about what would happen if she needed the procedure now, under Kentucky’s new law.

Jessica: I could be in a situation where I'm hemorrhaging, and my husband is driving me six, seven, eight hours to a hospital that will help me, because the other one wants me to wait until I go septic.

Jen: These nightmare scenarios have already become reality for some people. Not long after Roe was overturned, a woman in Kentucky was somewhere between eight and twelve weeks pregnant when she started bleeding and cramping. An ultrasound showed miscarriage was inevitable, but doctors refused to terminate the pregnancy. They were worried about facing felony charges under Kentucky’s new law.

The woman was able to get the procedure done in Indiana, but some people don’t have the resources for that kind of travel. Not to mention that the procedure might become illegal there too; after Roe was overturned, a federal judge in Indiana reinstated a law blocking D&Cs in the second trimester.

The Kentucky law does allow termination of pregnancy in rare exceptions where the mother’s life is in danger. But that’s a vague and subjective standard. And waiting for proof that the mother’s life is in danger is risky in itself

Kentucky’s abortion ban also makes it illegal to terminate a pregnancy that isn’t viable.

Lisa: Now you've got a woman who's pregnant with a child who will not make it to term, potentially, or if it is making it to term, it's not gonna leave the hospital. That's cruel and unusual, especially for a woman and a family who's already been through so much to try and get pregnant. Now, to be forced to carry a child that they know that they'll never take home, because a lawmaker has decided that to end that pregnancy is committing murder—that's wrong.

Jen: The Kentucky law also states that life begins at conception. That’s another minefield for IVF, because it calls into question what can happen with unused embryos.

Lisa: IVF oftentimes will create many, many, many embryos. And in the state of Kentucky, those embryos, those blastocysts that are frozen at five days, are considered humans. Can you just discard those or not? In the state of Kentucky right now, it's very unclear whether or not that would be considered committing homicide.

Jen: Because of all the uncertainty, Lisa, Jessica, and Sarah have all made the painful decision to shelve their plans for having more children. Jessica had even scheduled an embryo transfer last summer, but after the Dobbs decision, she canceled it. She’s still paying every month to store her nine unused embryos.

Jessica: It is so hard to know that potential for expanding my family is there. I mean, my daughter’s starting to ask about brothers and sisters. Like, she sees kids at school who have larger families, my best friend’s about to have her second. Um, and it's just, it sucks.

Jen: But she doesn’t see a safe way to go ahead with fertility treatment right now.

Jessica: I can't take a tenfold risk on leaving my daughter without a mom.

Jen: Lisa also feels like she’s out of options.

Lisa: Knowing what it took in order to get pregnant the first time around, and all of the different steps that we had to put into place that are now called into question, there's just no way I can take that chance.

Jen: It’s easy to imagine other people with fertility issues coming to the same conclusion. Even those who are willing to take these risks might not be able to get the treatment they need to conceive in Kentucky, because providers are reluctant to offer these services in such an uncertain legal landscape.

In recent years, around 2% of infants born in the US have been conceived using fertility treatment, so the potential impact of abortion bans is huge. In Kentucky alone, hundreds of people could be affected every year.

Daniel Cameron, Kentucky’s Attorney General, has said that there are no plans to prosecute people who use fertility treatment under the state’s new law. But his term ends next year, and a new attorney general could have different plans. Kentucky’s current abortion law has no protections for people who use fertility treatment, as some other states do. And some states are trying to pass laws that would give embryos personhood rights. Fertility clinics would understandably be nervous about providing treatment with laws like those on the books.

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Jen: The Kentucky lawsuit also charges that the state’s abortion ban violates Jews’ religious freedom. Sarah, Jessica, and Lisa are all deeply connected to their Jewish identities, and see reproductive rights through a Jewish lens.

Talmudic sources consider the fetus a part of the pregnant person’s body until it draws its first breath at birth. According to Jewish law, a fetus isn’t yet a person and doesn’t have the same rights as someone who is already alive. Jewish sources also say that abortion is not only allowed but required to preserve the life and health of the pregnant person, and health is commonly understood to mean not only physical, but psychological well-being.

Sarah, Jessica and Lisa say they feel a disconnect between their Jewish values and Kentucky’s abortion ban. For Sarah, those values were actively chosen.

Sarah: I actually converted to Judaism, and so I made the conscious decision that this is how I was going to live my life. And so to come into this scenario in the state of Kentucky that is just so against the Jewish values that I have around having children is—it's just not in alignment with what I believe.

Jen: Lisa’s Jewish values have always guided her, including during her fertility struggles. The first time she tried IVF, she had four viable embryos initially, but days later found out they were no longer compatible with life. The second time she tried IVF, it worked. Jewish values and rituals were a source of comfort to her in this difficult and uncertain time.

Lisa: You know, I went to the mikveh before I went to have my second transfer, which ended up taking. And being in that very vulnerable space and being very intentionally Jewish in that stage, in trying to get pregnant, is just, like, a tip of the iceberg. Relying on my faith and my understanding of when life begins was critical for me in how I am healing from knowing that those four embryos were not viable.

Our Jewish identity is so wrapped up in parenthood, that to now not be able to rely on that faith when we're making decisions about pregnancy—it tells me that I am less of a Kentuckian than somebody who is Christian and holds the belief that life begins at conception.

I'm not asking them to stop believing that. I'm asking them to allow me to believe what I believe, which is that life begins at the first breath.

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Jen: Sarah, Jessica and Lisa made a bold decision as plaintiffs: they didn’t want to remain anonymous, like plaintiffs in other abortion lawsuits around the country.

Lisa: The idea of shielding myself behind anonymity and running the risk that my case might not be considered as strong or be taken seriously because my actual story would either have to come through a man's voice because our two lawyers are men, or that it wouldn't be heard at all, just didn't sit right with me.

It was sort of like, no, I want you to see my face. I want the legislators to hear my story from me and understand that their choices have the impact that they are having on women like me. And they need to look me in the eyes and say, “You don't matter as much as my opinion and my beliefs matter.”

Jess: I put my name on it because they said it was our best chance. And in ten, twelve years when my daughter asks what I did when this awful thing happened, I wanted to be able to say “All I could.” That's what I did, I did all I could.

Jen: They knew they were taking a risk. All three women have increased security in their homes and workplaces to protect themselves and their families. And they’ve felt scared at times, especially when they first announced the lawsuit. But they’ve decided that telling their stories is worth the risk. 

Lisa:  Because it is the power of telling your story and having people face you, yourself, not an organization that seems like this big amoeba of entities, but “I'm a person, I'm a human and I'm going through this.” That's a lot harder to say you don't matter.

Jen: In the long run, they want to overturn Kentucky’s abortion law and change the reproductive rights landscape for future generations.

Jess: Every single woman on this lawsuit has a daughter who's growing up in the state. And we can't let this be the reality for our kids, and we can't let this be the reality for everybody else's kids.

So many of the reasons that me and my friends need fertility treatment—these reasons are hereditary. It's likely that our daughters will also need treatment. And we can't stop fighting for this, because this might be the reason that our kids can't have children in our state.

Sarah: I'm definitely not in this for attention. I'm doing this for anyone who chooses, or doesn't choose, to have a child, to give birth, to become pregnant, for my daughters. That's why I'm in this.

Lisa: For me, it goes back to Rabbi Hillel who says, “If I'm not for myself, who will be for me? If not now, when?” I constantly read books about feminine heroes and feminists and “sheroes”, as they're called, to my daughter.

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And when given the opportunity to stand up for something that I believe in, it was sort of a no-brainer to say, “Yes, of course.”

Outro: In February 2023, the Kentucky Supreme Court ruled to keep the state’s abortion ban in place until a lower court can rule on whether it’s constitutional. To expedite their case, Lisa, Jessica, and Sarah have filed a motion asking for the entire body of abortion law in Kentucky to be overturned.

In other states, lawsuits against abortion bans are playing out in a variety of ways. In December 2022, a judge in Indiana temporarily blocked that state’s abortion ban from going into effect, finding that it “substantially burdens the religious exercise of the Plaintiffs.” The case is still working its way through the courts.

So far, no ruling has been issued on the lawsuit against Florida’s abortion ban. In April 2023, the Florida Senate voted to shorten the time frame for an abortion from fifteen to six weeks.

If you’re interested in stories about Jewish women fighting for reproductive rights, check out our episode called Jane: Abortion Before Roe, about a group of women, many of them Jewish, who ran an underground abortion collective in the years before abortion was legalized nationwide.

Do you have an abortion story you’d like to share? In partnership with the National Council of Jewish Women, JWA is collecting stories about people’s experience of having an abortion, helping someone else secure an abortion, and advocating for abortion rights. Learn more and share your story at https://jwa.org/abortionstories

Thank you for joining us for Can We Talk?, the podcast of the Jewish Women’s Archive. The Can We Talk? team includes Nahanni Rous and Judith Rosenbaum. Our theme music is by Girls In Trouble. You also heard Taoudella from Blue Dot Sessions. Special thanks to Layla Rudy for helpful research on this episode, and to Lisa Sobel and Ben Potash for answering my many questions.

You can listen to Can We Talk? online at jwa.org/canwetalk, or wherever you get your podcasts. Please help us spread the word by sharing this and your other favorite episodes with your friends, and share your feedback about Can We Talk? with us at jwa.org/podcastsurvey.

I’m Jen Richler. Until next time.

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