On the sixth annual Repro Shabbat, vows to persevere

The sanctuary at Temple Shalom grew silent as congregant Sandy Flaksman told her story. 

“Many years ago, before Roe v. Wade, I was a new married but could not take the pill,” Flaksman recalled from the bimah during the Friday, Feb. 13 Shabbat service, explaining that as an alternative she was fitted with an intrauterine device bearing a soon-to-be infamous name: the Dalkon Shield. 

Later while travelling out of town, “I subsequently miscarried a 22-week fetus,” Flaksman said, and upon returning to Louisville promptly consulted with a new gynecologist. 

“He said, ‘Sandy, your womb and your uterus are such a mess from that Dalkon Shield, I fear for your mental and physical health. If you get pregnant again, please sue the hell out of me because that’s the only way you’ll be able to get an abortion.’” 

Flaksman did get pregnant again — delivering a healthy, full-term baby (and subsequently adopting a second child). And though her miscarriage occurred more than 50 years ago (the Dalkon Shield was pulled from the American market in 1974 after being found to have a design flaw leading to the deaths of at least 18 women), the incident remains a vivid reminder of how women’s reproductive health could be under dire threat. 

It was circumstances like these that, six years ago, prompted the National Council of Jewish Women to establish “Repro Shabbat,” which NCJW describes as “an annual Shabbat celebration that honors the Jewish value of reproductive freedom.” It coincides each year with Parshat Mishpatim, “the reading of which contains the verses commonly referenced as the foundation of Judaism’s approach to reproductive health, rights and justice.” 

This year’s Repro Shabbat observances fell on the weekend of Feb. 13-14. At least three area congregations participated: Temple Shalom, The Temple and Keneseth Israel. Adath Jeshurun, which had a scheduling conflict, will host its own Repro Shabbat later this year. 

“Reproductive justice is a Jewish value,” emphasizes Sarah Harlan, executive director of NCJW – Louisville Section, “but it’s important to us to protect every woman’s right to bodily autonomy, and not have the government tell us or impose what they believe.” Indeed, Repro Shabbat has become ever-more relevant since the U.S. Supreme Court handed down its June 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe’s 1974 decision guaranteeing abortion access. 

Jewish law has long held that life begins at birth, not conception – a distinction that has profound implications in both sacred and secular arenas. 

“We read Parashat Mishpatim that if a person strikes another human being and that person dies, ‘Surely that person shall be put to death,’” KI Rabbi Ben Freed commented during his Feb. 14 Shabbat morning sermon. “That’s pretty straightforward: It seems that the Torah has a rubric of framing that if you kill someone, you will then get the death penalty as well. 

“But then the Torah goes on to share a hypothetical: Say there two men fighting, one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues. Then the one responsible shall be fined accordingly, as the woman’s husband may extract payment.,” Freed went on. 

“We can see here that the Torah makes a distinction between the life and body of the woman who is pregnant and the potential life that is growing inside of her. This distinction is at the heart of many arguments for reproductive freedom,” Freed said. “There are other Jewish texts, both ancient and modern, that deal with specific issues of reproductive healthcare, including abortion, IVF (in-vitro fertililization) and contraception.” 

Such were the issues at the center of Sobel v. Cameron, a Kentucky case filed in October 2022 that turned on how the law treated embryos frozen in vitro. Post-­Roe, Kentucky law regarded them as human beings – contradicting the Jewish law that regarded them as parts of a woman’s body. 

Three Jewish woman – Lisa Sobel, Jessica Kalb and Sarah Baron – filed suit in Jefferson District Court claiming that the state’s ban on abortion was unconstitutional because it was non-specific about IVF, and prioritized Christian precepts over Jewish values. The trial court ruled in favor of the state citing reasons of standing, but the Kentucky Court of Appeals overturned that ruling and ordered the case back to District Court for reconsideration, saying that Sobel’s existing frozen embryos provided the necessary basis for trial. 

Sobel and Kalb, alongside attorney Aaron Kemper, were at The Temple Feb. 13 to share their perspectives on a case that has no clear resolution in sight. 

“The whole point behind our lawsuit is that we are three Jewish mothers seeking to grow our families,” Sobel explained to her fellow congregants, “but we faced the challenge of infertility. When we filed our suit, one in four families would face that burden; now we believe it’s closer to one in three.” 

In many respects, “this affects us all,” Sobel said of Kentucky’s now total ban on abortions, even in cases of rape or incest (the only exception is to save the life of the mother). 

“The way the law was written is that embryos are human beings,” she reminded her listeners. “Well, if you are using reproductive technologies and you’re creating embryos, what does that status mean for you as a parent? That’s the whole purpose behind our lawsuit – we need answers in order to move forward. We need clarity, which we don’t currently have. 

Thorny questions then, even thornier questions now. 

“I am 36 years old, and the mom to the most wonderful five-year-old conceived through IVF,” Kalb said on this same Friday night. Roe­ was overturned and, “my husband and I decided to try again to grow our family. We were fortunate in that we had nine embryos on ice in cryo(genic) storage. That’s nine pregnancies I would have to endure, but last year we decided to try one. 

“Infertility treatment takes a long time,” Kalb said. “We started the process in the summer, and (implanted the embryos) during Sukkot, when I prayed, ‘Let my body be like the sukkah; let it be an imperfect shelter with a greater purpose.” 

Soon afterward, on their 10th wedding anniversary, she and her husband rejoiced in a positive pregnancy test. 

“We confirmed the heartbeat on my baby brother’s 10th birthday,” Kalb recalled, so it “felt like it was meant to be. We were excited. We told family; we told friends; we told our community – and a week later, I went to a follow-up appointment where a doctor let me know there was no longer cardiac activity.” 

What followed were a cascade of contradictory emotions. 

“I sat there processing the guilt, processing the sadness – and then something else came over me and it felt disgusting – but at that moment I felt grateful there was no cardiac activity, because in the state of Kentucky that is the only protection a pregnant woman has to know she’ll be able to access the care she needs.” 

At that juncture “I was grateful for the doctor I’d been working with through my fertility journey, who sat across the table and promised to advocate for the D & C, which is classified as an abortion that I needed to keep myself safe; for the community that had held me up and showed up in big and small ways.” 

Then came what amounted to a shattering reality check. 

“I got to the hospital and they started the IV, and I’m standing there, grateful to my husband, the sweet nurses and the kind doctors. And then they handed me a paper which required me to sign that my child would be cremated and its ashes spread in Calvary Cemetery.” 

“This is,” Kalb said, gazing at The Temple’s chapel, “the only room where I don’t have to explain why that’s a problem. And in that second, under the loving care of the most amazing medical team you can imagine, my gratitude turned to rage. I was deeply angry that the law had ignored my beliefs: not a child of conception; to be cremated in a Catholic cemetery. 

“But I signed it, because I had to,” Kalb said. “I signed it because that’s what would keep me safe and get me home to that wonderful five-year-old. But had that miscarriage happened in a slightly different way, my life would have been in danger.” 

Like so many protracted legal battles, Sobel v. Cameron demands not simply hope, but fortitude. 

“Echoing some of the sentiments of rage,” attorney Kemper said, “I’m going to tell you a quick story about a constitutional law professor who – last week – said to me and a couple other lawyers: ‘You young people need to have more patience.’ 

“The example he gave was that Thurgood Marshall could not have won Brown v. Board of Education in 1935 – it had to be 1953 (the U.S. Supreme Court issued its unanimous decision a year later, in 1954), because of the makeup of the court, yadda, yadda, yadda. 

“That really annoyed me,” Kemper said, “because the reality was that Thurgood Marshall did file a case to integrate public schools in 1935. He’d actually filed one every single year for 18 straight years. And (by) 1935 he’d gotten five different decisions in five different states, and basically forced the Supreme Court to take up school integration. 

“I say all this because that constitutional law professor was confusing persistence with patience,” Kemper explained. “As Lisa said earlier, our case is three years and four months old. We started in District Court…and we lost. We won at the Court of Appeals, and the Court of Appeals sent the case back to District Court. 

“So, three and a half years later, we’re back to where we started,” Kemper acknowledged. “But we are still fighting for reproductive rights – and if it takes another three and a half years, or 30 years, we’re going to keep fighting.” 

Public advocacy and events such as Repro Shabbat “make a huge difference,” Kemper emphasized. “I thank the rabbis for having this every year to remind people that this is an important issue and we can’t let it slide, because your voice and advocacy does matter. There have been 400 pregnancy-related prosecutions across the country since Roe was overturned. There have been zero in Louisville.” 

Why? 

“Well, our chief prosecutor and the mayor and everyone that’s in charge have promised not to prosecute, and they have upheld that promise,” Kemper said. “But they won’t be in those positions forever. You have to make sure the next people who are elected maintain that promise – because there are no guarantees.”