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When Jews Argue in the Supreme Court About Abortion

Monday, November 29, 2021 @ 02:11 PM
posted by Roger Price
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United States Supreme Court

That Jews have disparate viewpoints on abortion is not news, but the argument has mostly been maintained and contained within the tribe. Every once in a while, though, it erupts into the public square, and the current consideration by the Supreme Court of the United States of the case of Dobbs v. Jackson Health, known as the Mississippi abortion case, is one of those times. What are Jews saying, and why?

The Context.

The extent to which abortion – the termination of the life of an embryo or fetus – occurs is not documented precisely in the United States. Since 1969, however, Centers for Disease Control and Prevention (“CDC”) has collected data on legally induced abortions from most, but not all, states. Its findings for 2018 disclose that 619,591 legally induced abortions were reported to it. Of these, 92.2% were performed during or before the 13th week of gestation. Another 6.9% were reported between weeks 14 and 20. Less than 1% were reported in or after week 21.

The Case.

The case before the United States Supreme Court arises from the enactment by the State of Mississippi in 2018 of the state’s Gestational Age Act (the “Act”) which prohibits abortion after 15 weeks of gestation, with exceptions for, and only for, medical emergency or severe fetal abnormality. Because the ban prohibits abortions prior to the normal time for fetal viability (at about 22-24 weeks of pregnancy), the Act runs afoul of the Supreme Court’s previous holdings in Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 883 (1992). As Mississippi acknowledges, the very purpose of the Act is to challenge Roe, Casey, and their progeny. To understand the legal issues in the case, then, we need to look first at the primary precedents.

The Primary Precedents.

Roe v. Wade concerned an unmarried woman known in the litigation as Jane Roe, who, in 1969, became pregnant with her third child. A woman of limited financial means, she had previously placed her first two children up for adoption. For this unwanted pregnancy, Roe wanted an abortion initially, but that procedure was not legally available in her home state of Texas at that time and Roe could not afford to travel to another jurisdiction. 

Consequently, while pregnant, Roe filed suit to declare unconstitutional the Texas abortion statute. A three-judge panel ruled in her favor in June, 1970, but Roe never did have an abortion. She delivered her third child and put it up for adoption, as well. The case proceeded, though, as Texas appealed directly to the U. S. Supreme Court. 

The Court recognized that Texas had important and legitimate interests in this matter, including the preservation and protection of a pregnant woman’s health and a “separate and distinct” interest in protecting “the potentiality of human life.” 410 U.S. at 162. It broke legal ground, however, in holding that a woman has a right to privacy under Section 1 of the 14th Amendment to the U.S.  Constitution which provides that no State “shall deprive any person of life, liberty, or property, without due process of law . . .” and, so, a pregnant woman is entitled to choose whether or not to have an abortion.

In an effort to balance the parties’ respective rights, the Court established guidelines related to the trimesters of pregnancy. It held that abortions could not be prohibited for any reason prior to approximately the end of the first trimester (about 13 weeks), were subject to reasonable regulation in the second trimester, and, subsequent to viability, could even be proscribed except when “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” See 410 U.S. at 163-65.

Nineteen years later, in Casey, the Supreme Court again considered abortion at length. This case arose under the Pennsylvania Abortion Control Act of 1982. While that statute did not prohibit abortions in violation of the Roe framework, it did impose a variety of requirements including for a waiting period, spousal notice, and (as applicable to minors) parental consent. Ultimately, the Court affirmed the central, core holding of Roe that a woman had a right under the liberty provision of the Due Process Clause to choose an abortion prior to viability, but, cognizant of advances in maternal health and neonatal care since Roe, it also discarded the trimester framework of Roe in favor of one more focused on the viability of the fetus. See 505 U. S. at 870-73.

The Court also modified the standard for review of a state’s law respecting abortion and established an “undue burden” standard, such that any restriction on abortion would be unconstitutional if enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” 505 U.S. at 877.  Applying this new standard, the Court rejected the petitioners’ attempt to invalidate all of Pennsylvania’s regulations, save the one for spousal consent.

A decade and a half after Casey, the Supreme Court heard and rejected a challenge to the federal Partial-Birth Abortion Ban Act of 2003 on several grounds, including that it imposed an undue burden on a woman’s right to an abortion. In doing so, the Court did not revisit Roe or Casey, but proceeded assuming those precedents to be controlling.  See Gonzales v. Carhart, 550 U.S. 124, 146 (2007).

As is often the case, the dissent (here authored by Justice Ginsburg) blasted the majority. Here Justice Ginsburg criticized the majority generally for not taking Casey “seriously,” and, more specifically, for merely assuming the principles in that case to be controlling rather than retaining or reaffirming those principles.  See 550 U.S. at 187. At the same time, the dissent itself shifted the Constitutional rational for a right to an abortion, saying “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine for herself her life’s course, and thus to enjoy equal citizenship stature.” 550 U.S. at 172.

The Proceedings in Dobbs.

One day after the enactment of the Mississippi Gestational Age statute, the Jackson Women’s Health Organization (“Jackson Health”) on behalf of itself and its patients, and a doctor on behalf of herself and her patients, filed suit against Thomas E. Dobbs, M.D., M.P.H., in his official capacity as State Health Officer of the Mississippi Department of Health, and another party. Plaintiffs sought to prevent enforcement of the Act. Jackson Health prevailed first in the federal trial court and later in the federal appellate court. Dobbs then successfully filed a petition to the Supreme Court for review.

The Question Presented.

Contrary to the understanding of or perhaps the hopes (or fears) of some, parties do not come before the Court seeking detached philosophical determinations. And, in this case, the Court is not being asked whether, in some Platonic world, abortion is a horrendous act of murder to be condemned or an aspect of enlightened medical care to be available. Rather, the question before the Court is more limited, much more limited.

In the American system of government, where certain rights of the people are acknowledged in and protected by a national Constitution and others are reserved to the states or the people, and, further, where citizenship is both national and state, the parties come before the Court seeking something more modest, if no less momentous.  They ask generally whether the State of Mississippi can restrict what Jackson Health asserts is a right protected by the national Constitution. Even more narrowly, the precise question presented to the Court is whether all pre-viability prohibitions on elective abortions are unconstitutional.

The technical term for this kind of case is a “doozy.” In political terms, the ultimate decision may have both a dramatic impact immediately and unknown consequences in the longer term.

The Parties’ Arguments.

Petitioner Dobbs’s Opening.

Petitioners’ argument is a direct frontal assault on Roe, Casey, and their progeny. Health Officer Dobbs claims those cases are “egregiously wrong” and “hopelessly unworkable,” and, moreover, “have inflicted severed damage . . . .”  (Dobbs’s Brief, at 1-4, 12-28.) In addition, arguing that legal and factual progress have overtaken the Court’s abortion precedents, Dobbs urges the Court to hold that a pre-viability prohibition on elective abortions is constitutional where a rational basis supports the prohibition. (See Dobbs’s Brief, at 1, 11.)

Addressing the limited issue before the Court, Dobbs asserts that Mississippi has certain interests that the Act is intended to protect, interests that the Court has deemed legitimate in other cases. These include an interest in protecting the life of the unborn and the health of women “from the outset of . . . pregnancy” and in protecting the medical profession. (Dobbs’s Brief, at 7-8, 41.) The first two interests were recognized by the Court in Casey, 505 U.S. at 846 and the third in Washington v. Glucksberg, 521 U.S. 702, at 731 (1997). Dobbs then argues that a viability standard, which would permit abortions eight to ten weeks longer into a pregnancy, interferes with the State’s interests.

Respondent Jackson Health’s Response.

Jackson Health stands on the Court’s prior rulings which attempted to balance state and personal interests, and did so, ultimately, by drawing a line at the viability of the fetus.   (Jackson Health Brief, at 9.) It concedes that a state may have an interest in fetal health sufficient to enable some regulation, but argues that prior to the time when a fetus might realistically be able to sustain life outside the womb, the state’s interest is subordinate to that of the pregnant woman whose liberty incudes her right to physical autonomy and bodily integrity and decisions about childbearing. (Id., at 17-22.)  Jackson Health then argues that viability is not only “clear” and “enduringly workable,” even if medical science were to advance the time viability were to be possible, but that banning abortions after fifteen weeks and before viability would “harm the health of people who need to end a pregnancy.” (Id., at 22-31.) In short, Jackson Health says that all pre-viability prohibitions on elective abortions are unconstitutional.

The Friends of the Court.

Dobbs not only presents a significant constitutional question, it implicates major ethical and moral principles as well. So serious are these issues that an astounding number of organizations and individuals, more than 1,125, have filed amici (friends of the court) briefs in support of one party or the other. At least one brief has also been filed in support of neither party, this by a group of biologists claiming to merely want the Court’s opinion to be consistent with the best science currently available.

Briefs of amici curiae are often not directed to the limited question before the Court. Neither are they necessarily responsive to arguments made by one party or another. In fact, amici briefs are often filed before, and therefore without knowledge of, specific arguments or citations that the actual parties may offer to the Court. They are filed, though, to make a point. That point may be a legal one, it may be a political one, and, as here, it may be a policy or a religious one.

Amici come before the Court because, in this great country, they can. They are free to express their convictions and, not incidentally, let they Court, and the country, know that they care about a particular issue and why. Into this fray have come a number of Jewish organizations, some well-known to the general public, but others not so much.

The Jewish Amici.

At least two briefs have been filed by Jewish organizations and individuals in support of Health Officer Dobbs. One was filed by the Jewish Pro-Life Foundation (“J Pro-Life”), joined by the Coalition for Jewish Values, Rabbi Yakov David Cohen, Rabbi Chananya Weissman, and Bonnie Chernin, as President of the Jewish Life League. The other was submitted on behalf of the Jewish Coalition for Religious Liberty. This contingent seems to view all abortions as contrary to Jewish law and tradition, save those necessary to save the life of the pregnant woman when she is endangered or seriously threatened. While the Mississippi Act would only affect about 5% of abortions currently performed, these amici seem to favor that approach.

The overwhelming majority of Jewish amici, however, have filed in support of the Jackson Health. A brief filed by the National Women’s Law Center has been joined by 72 organizations, including several recognizable Jewish ones:  Anti-Defamation League, Central Conference of American Rabbis, Union for Reform Judaism, Women of Reform Judaism, Men of Reform Judaism, and Hadassah, the Women’s Zionist Organization of America. Another brief in support of Jackson Health, has been filed by Catholics for Choice, and joined by 53 other organizations, including additional recognizable Jewish ones:  National Council for Jewish Women, Ameinu, American Jewish Congress, Habonim Dror North America, Jewish Alliance foe Law and Social Action, Jewish Orthodox Feminist Alliance, Jewish Women International, Jewish A Women’s Foundation of New York, Keshet, National Council of Jewish Women (Austin, Dallas, Greater Houston, Greater New Orleans, and San Antonio Sections), Rabbinical Assembly, Reconstructionist Rabbinical Association, Society for Humanistic Judaism, and T’ruah: The Rabbinical Call for Human Rights. Still another brief has been filed by Americans United for Separation of Church and State and joined by, among others, Bend the Arc: A Jewish Partnership for Justice, a self-described progressive organization. In short, over twenty Jewish organizations, and their related subsidiaries, are supporting the current legal entitlement of women to an unimpeded abortion prior to viability.  As a practical matter, given CDC’s accounting, this amounts to endorsing the availability of abortion on demand for almost all procedures.

What the Jewish Amici Brought to the Court.

Jews Supporting Health Officer Dobbs.

J Pro-Life is an organization that claims to promote “life-saving solutions to unplanned pregnancy by providing the Jewish community with much needed pro-life education, Jewish- friendly pregnancy care and adoption referrals, and healing after the terrible trauma of abortion.” One of its co-signatories is The Coalition for Jewish Values, which claims to represent “over 1,500 traditional, Orthodox rabbis and advocates for classical Jewish ideas and standards in matter of public policy.” (J Pro-Life Brief , at 1.)

In its brief, J Pro-Life seeks to make a rather profound point. It begins with the proposition that Judaism is the original pro-life religion. (Id., at 5.)  It argues not only that Judaism has a strong legal tradition of protecting human life and prohibits the murder of innocents, it contends that all human beings, are “created in the image of God,” and “at every stage of development” have “intrinsic value and worth.” (Id.)

More specifically, the J Pro-Life Brief contends that a “new human being is formed at the moment of conception, a human being that never existed and will never exist again.” (Id., at 4-5.) Therefore, “from the moment of conception,” that unique human being “has a right not to be prevented from continuing to live and grow in utero, and to be nurtured there.” (Id., at 6.) These amici support this right because of the biblical injunction “Do not stand idly by when your neighbor’s life is at stake” (Lev. 19:16) and the directive in Proverbs: “Speak up for those who cannot speak for themselves.” (Pr. 31:8). (J Pro-Life Brief, at 21.)

Addressing the Act under review in the case, the J Pro-Life amici reference significant milestones in utero regarding heart beats, brains waves, and organ development prior to 15 weeks gestation and state that the challenged Mississippi law “seeks to protect the God-given right to life for babies 15 weeks of gestation and beyond.” (Id., at 4.)

And as to the contention that every woman has a right to make decisions about and control her own body, J Pro-Life amici note that “the child in the womb is a separate individual from the mother with a different genetic code, often a different blood type or gender.” (Id., at 6.) Not only are they separate, they are innocent. “Because children in the womb are innocent persons, the law must provide them with equal protection.” (Id., at 24.)

This last point is especially interesting, because a traditional Jewish view, pithily stated by the 11th century French bible scholar Rashi, has been “lav nefesh hu” (the fetus is not a person) and that view supported abortion until the time of birth if necessary to save a mother’s life. Whether any law clerk will catch that point is doubtful, but any clerk will recognize the reference to the powerful equal protection clause of the 14th Amendment. The end result is that the brief of the J Pro-Life amici is, with the exception of pages of quotations from various rabbis presumably of note in the Orthodox community, grounded in generally recognized religious principles and consistent with modern science. And in invoking an “equal protection” argument, shows how constitutional principles can be applied not just on behalf of a pregnant woman but also for the fetus she is carrying.

The second amicus brief filed in support of Dobbs takes a considerably different approach. Brought by the Jewish Coalition for Religious Liberty (“JCRL”), it quotes no Jewish text and advances no Jewish tradition. Rather, as a self-described “nondenominational organization of Jewish communal and lay leaders,” it is motivated by an expressed concern that “proponents of a constitutional right to abortion will assert a novel ‘religious-veto’ view of religious liberty” that will adversely impact “sincere religious adherents” who, in the future, may seek accommodation “to practice their faith while fully participating in American life.” Consequently, JCRL seeks to ensure that “First Amendment jurisprudence enables the flourishing of diverse religious viewpoints and practices in the United States.” (JCRL Brief, at 1.)

Jews Supporting Jackson Health.

The first notable aspect of the three amici briefs filed by Jewish organizations in support of Jackson Health is that they are not filed just by Jewish organizations. There are advantages to this tact, both logistical, financial, and political, but the result is that the Jewishness of the briefs, to the extent present at all, is diluted.

Consider the brief filed by Catholics for Choice (Choice Brief), and joined by numerous Jewish organizations, including the rabbinic arms of the Conservative and Reconstructionist movements. Its principal argument begins with the proposition that various religious traditions “espouse myriad views on when human life begins . . . .” (Choice Brief, at 1.) It then looks at positions taken by Catholics, Jews, and Muslims, and concludes that Mississippi Gestation Act at issue is “at odds with” these “diverse religious traditions” and that, under Roe, “a state may not ‘by adopting one theory of life . . . override the rights of the pregnant woman that are at stake.’” (Id., at 9.)

Regarding the Jewish tradition, the Choice Brief argues that “(t)he majority of Jews do not believe that life begins at the moment of conception,” but, rather, believe that life is something that “happens gradually over time.” (Id., at 7.) No survey or other authority is cited, however, for the contention regarding the majority of Jews and, as we have seen, the brief filed by some Orthodox Jews expressly acknowledges that life begins at conception. Does anyone seriously believe that the majority of Conservative, Reconstructionist, Reform, Humanist, or secular Jews take a different view of the relevant science, science that is well-established?

As noted above, among the many amici filing briefs, there is the Brief of Biologists . . . in Support of Neither Party (“Biologists’ Brief”). At the outset, the biologists make it clear that they are taking no position on Roe, on the “morality, legality, or constitutionality of abortion access,” on whether a “a human zygote, embryo, or fetus deserves legal protections or constitutional rights.” (Biologists’ Brief, at 5.) Their purpose, and their only purpose, is to demonstrate when biologically a human being’s life begins.

Rejecting contentions that human life begins at birth or first breath, or at fetal viability, or at first heartbeat, brain wave, or moment of pain capability, (Id., at 8-12), the biologists affirm that human life begins with fertilization, “a process which starts with sperm-egg binding and is completed by sperm-egg pronuclear fusion . . . .” (Id., at 12.) That is when a human being “first comes into physical existence as an organism that is biologically classified as a member of the Homo sapiens species.” (Id., at 5.) 

Nevertheless, in an attempt to buttress the contention that different religious communities view life in different ways, the Choice Brief, sets forth what it purports to be the Jewish position. It references two ancient statements, each found in the Talmud, a collection of commentary between 1500 and 1800 years old. One states that a fetus is “mere fluid” prior to the 40th day of gestation and the other is that the fetus is a physical part, indeed a limb, of the pregnant woman’s body. (Id., at 7-8.) The problem with these citations is not that the brief incorrectly reflects ancient Jewish musings. More profoundly, it is that such references only highlight the absurdity of the argument being made. What difference should it make to the U. S. Supreme Court that there are different traditions about the origin of life if those traditions are not consistent with modern science and, therefore, not credible?

We have, after all, learned a bit in the last millennium and a half.  We know today that by the fortieth day, between the fifth and sixth week since conception, what the pregnant women is carrying is not “mere fluid.” Rather, there is an identifiably human embryo present with a face and brain growing, nostril depressions evident, and the start of retinas. Arm buds are present and fingers are beginning to form. Lower limbs are increasingly clear.

We also know that that embryo and, later, the fetus is not a mere limb of its mother, but a being with an independent and, indeed, unique genetic makeup, some of which it received from its biological mother and some from its biological father. That human being is dependent on the pregnant women for shelter and sustenance, to be sure, but there can be no doubt that it is a living, growing organism, with cells differentiating into limbs and organs and features as directed by its distinctive human DNA.  

The current Jewish view of the origin of human life cannot be fairly represented by utterances made many centuries ago by individuals who lack the knowledge we have today, knowledge of which a largely educated community of Jewish Americans should be aware. Why the Jewish signatories to this Brief did not object to this representation is a mystery. As is true in other situations, but certainly applicable here: “When faith fears facts, and opts for fiction, it risks looking foolish.” When Judaism Meets Science, at 80. Whether purposefully or negligently, the Jewish amici on the Choice Brief have succeeded in looking foolish, especially in comparison to the Orthodox amici whose statements on life are science consistent.

These Choice amici also argue that various religious traditions support a women’s moral right to decide about whether and when and how to terminate a pregnancy. (Choice Brief, at 9-20.) With respect to the Jewish tradition, they note, citing Mishnah Ohalot 7:6, that abortion is not only permissible but required when “necessary to safeguard the well-being of the mother, at any stage of pregnancy.” (Id., at 15-16.) The cited passage says no such thing, though. Should the statement pique the interest of any law clerk, the clerk would soon find out that comment in the Talmud addresses a hypothetical circumstance in which “a woman is having trouble giving birth.” In that circumstance, an abortion is permitted “because her life comes before the life of [the child].”

Here, then, Choice amici’s argument both misleads and overreaches. There is no doubt that Jewish tradition has consistently found abortion to be permissible where some complication would threaten the life of the pregnant women. Today, different denominations have developed alternate formulations which would extend the scope of permissibility. For instance, the Conservatives would allow abortion in order to avoid “severe physical or psychological harm” and Reconstructionists would permit abortion in order to alleviate the harm caused by “psychologically devastating” events, like rape or incest. See When Judaism Meets Science, at 190. But no denomination has yet expressly said that Judaism authorizes an abortion on demand, whether for specific reasons like gender or trait selection, or, for more general reasons like the “well-being” of the pregnant woman. Again, the Jewish signatories should have caught this error.

Indeed, these Jewish amici could easily have avoided falling into the trap of making scientifically untenable statements about life, a question related to but also different than the limited one before the Court, and still supported Jackson Health by emphasizing the historic Jewish commitment to health and healing and adopting the science-based argument found in the brief filed by the American College of Obstetricians and Gynecologists, the American Medical Association, and  over twenty other national medical societies (“Medical Professionals Brief”). In their amici brief, these health professionals address the specific issue before the Court and state that viability is the “first point in pregnancy at which fetal life can be medically sustained outside of the pregnant person’s body.” (Medical Professionals Brief, at 7-8.) “As relevant here, there is undisputed scientific, medical, and clinical consensus that fifteen-weeks LMP is months before fetal viability is possible.” (Id., at 13.) And, quite specifically, the Medical Professionals reject Dobbs’s claim that a fetus can experience pain at fifteen weeks. “The medical consensus is that fetal pain is not possible before at least twenty-four weeks gestation because the neural circuitry required to sense, perceive, or experience pain is not developed in earlier gestations.” (Id., at 14.) The brief concludes with the argument that Mississippi’s ban will harm, not improve, pregnant patients’ health and, further, will place clinicians in an impossible position having to choose between their ethical obligations and following the law.

A different amicus brief (Separation Brief), this one filed by Americans United for Separation of Church and State, is joined by, among others, Bend the Arc: A Jewish Partnership for Justice, a self-described progressive organization (“Bend the Arc”). The Separation Brief (at 18) cites the Choice Brief, and like it stresses the multiplicity of religious and moral views regarding the origin of life. Mercifully, unlike the Choice Brief, it does not attempt to define or illustrate a Jewish position or that of any other faith community. Instead, it states that the “specific point at which life begins is thus a matter for theologians and philosophers to debate and for individuals to ponder.” (Id., at 18.)

This premise then becomes the foundation for the argument that the Supreme Court should retain the viability standard as best positioned to reduce religious based conflict because it “has delimited permissible and impermissible spheres of regulation that, quoting Justice Blackmun in Casey, “refect[] the biological facts and truths of fetal development.” (Id., at 19.) It is “not just logically defensible on religiously neutral grounds, . . . it is the demarcation criterion for regulatory authority least susceptible to . . . arbitrary and unfair” favoritism of “officially favored religious beliefs . . . .” (Id., at 21.)

One can fairly question both the premise and the argument. While it is may be true that, for some, a question about whether life begins is a matter in which religious terms are helpful, as the biologists have pointed out, the science of conception and gestation is well understood today. The Court can easily and comfortably rely on the science without any reference to any religious principles.

Moreover, in their argument on viability Separation amici seem to have created a problem for themselves with respect to the precise question before the Court. If the viability standard is worthy because it reflects the reality of conception and gestation, can there be another standard, a pre-viability prohibition, that is also science consistent and not susceptible to religious favoritism? After all, what religion doctrinally cares about the fifteenth week of pregnancy or the sixth?

Separation amici are on firmer ground when arguing that different degrees of regulatory authority ought to depend on “whether a fetus is capable of independent existence.” (Separation Brief, at 20.) Viability has traction as a demarcation not because it is religiously neutral, but because it represents a time of potential survivability independent of the fetus’s mother. While medical care and assistance may be required, life outside the womb is possible. So, it is not unreasonable that the fetus, though still in the womb, should be invested with greater rights and interests and received greater protection from the state. See, Casey, 505 U.S. at 932-33 (Blackmun concurring).

The presence of Bend the Arc seems to add no specifically Jewish thinking to the Separation Brief. No Jewish texts or traditions are mentioned, no uniquely Jewish aspirations identified.  

A third amicus brief supporting Jackson Health and joined by a number of Jewish organizations, including the rabbinic and congregational arms of the Reform movement and the Anti-Defamation League, was filed by the National Women’s Law Center (“Women’s Law Center”). It takes a decidedly different approach. If the Jewishness of the Choice Brief signed by certain Conservatives and Reconstructionists was skewed archaic, the Jewishness in the brief prepared by the Women’s Law Center is non-existent. While the table of authorities submitted is extensive – running over thirteen pages – not a single one listed is from a Jewish source or clearly identifies a Jewish principle. And if the Choice Brief and the Separation Brief were concerned with religious pluralism, and philosophical questions of the origin of life, the Women’s Law Brief is not.

Instead, the Women’s Law Center has filed a brief focused on its understanding of a constitutional right to abortion, a right it argues is “firmly grounded” in and guaranteed by both the Due Process Clause and equal protection principles of the 14th Amendment. (Women’s Law Brief, at 2.) Taking direct aim at Health Officer Dobbs’ argument, the Women’s Law Center argues that every individual has a right to the possession and control of his or her body and destiny, free from interference from others, including the right to be left alone from governmental interference. ((See Id., at 5-6 (Quotes and citations omitted.)) The power of the government ought to be limited, the argument continues, because the decision to beget or bear a child is constitutionally protected and overrides any state interest in fetal life.

Now, the notion that a person has a right to control his or her own body “is not one rooted in traditional Jewish soil. Judaism has long held that one’s body belong to God and that we are but stewards of it.” (When Judaism Meets Science, at 195.) But Jewish Americans are not obligated to advance Jewish principles in matters of secular policy. And it is not clear if the Jewish signatories to the Women’s Law Center’s brief are adopting each argument made, just concurring in the conclusion advanced, or merely wish to signal support for the Women’s Law Center.

Having made its main points, the Women’s Law Center adds that the brief of Officer Dobbs has purposely ignored risks and harms involved in pregnancy and childbirth arises because were it to do so, it “would be forced to acknowledge that denying the right to an abortion is a violation of a person’s bodily integrity and personal autonomy . . . .” (Law Center Brief, at 7.) More accurately, Dobbs has sought to minimize the potential risks and harms of pregnancy and childbirth, but having raised the issue of an omission, the Women’s Law Center has opened itself up to a telling failure of its own. In an extensive brief, laden with citations documenting the physical, psychological, social, and economic burdens of an unwanted pregnancy, nowhere does the Women’s Law Center acknowledge the harm abortion causes an embryo or fetus.

There can be little doubt that the choices available to a pregnant woman may be difficult, but at least she has choices and she gets to choose among them. The consequences of her choices may be traumatic, even painful, for her. For the fetus, they may be fatal.

That neither side can offer one word of compassion or sadness for the other is, at minimum, one of the most troubling aspects of this case. One wonders if the Jewish signatories suggested any such words.

Why Is This Topic Different From All Other Topics?

Having reviewed the case before the Court, and the various Jewish sponsored briefs filed in connection with it, what can we say? Certainly, some of our expectations were met. Orthodox amici take a different approach to abortion than do heterodox and secular amici. The former is clearly more comfortable with greater restrictions than the latter.

But digging a bit deeper, we have seen that the Orthodox amici did not argue here what has been a traditional argument, in Rashi’s formulation, that a fetus is not a person. Perhaps the Orthodox here were recognizing a distinction between life and personhood, and certainly the question before the Court concerns the viability of the living being, not its personhood, whatever that may mean. Still, the omission is interesting.

At the same time, the heterodox amici seemed split in their approaches. Two groups talked mainly about religious pluralism and one did not. In one of the sets of amici that did address religious pluralism, the one that included Conservative and Reconstructionist rabbinic groups, there were definite references to the Jewish tradition, but they were scientifically erroneous. This is at best odd.

Conservative and Reconstructionist rabbis have not been shy about expressing themselves on a host of contemporary issues. Whether the topic is vaccinations or climate change, they have been outspoken on the need to follow “the science,” at least to the extent they understood it. Here, however, rather than follow the clear teachings of biology, gestation, and genetics, they rely on random thoughts of individuals who lacked not just credentials but any rudimentary understanding of the subject about which they were talking.

Similarly, when the topic is deaths related to firearms, these rabbis do not hesitate to decry the horrific loss of life, which in 2019 approximated 40,000, sixty per cent of which were by suicide.  Here, though, they are silent about the reality that abortion in the United States annually takes the lives of about 700,000 human beings. Over and over these rabbis confront oppression and speak for those who cannot defend themselves. Why, in this discussion, do we hear nothing from them about the weakest of the weak? Have they forgotten Jeremiah’s injunction to not shed innocent blood?  (See Jer. 22:3.) 

The third group of Jewish amici, which includes key constituencies of the Reform movement, focused on the legal issues, leaving any Jewish particularism outside the courthouse. The argument to which they subscribed centered on a claim of a right of autonomy for pregnant women in their management of their bodies and their pregnancies. The emphasis on autonomy is at least consistent with the movement’s similar emphasis with respect to religious matters. But that emphasis, while possibly defining of and for the Reform movement, raises its own problems in the legal matter before the Court and for the Reform movement.

If the American system of government accepted the complete autonomy of individuals to act as they wished in personal matters, Roe and Casey would not have been necessary and the Court would not be considering Dobbs’s petition. The Declaration that established our nation’s independence however, recognized life, as well as liberty and the pursuit of happiness, as an unalienable right. And in our federal constitutional system, states have interests in the well-being of those within their jurisdiction. Liberty, then, is not a license permitted without limits. Rather, the Constitution establishes a framework for “ordered liberty,” a system that sometimes requires delicate balancing among competing interests, balancing which is often hard to achieve, especially when one side insists on autonomy and the other attempts to flex its authority.

Generally, though, whether the setting is criminal or civil, our system recognizes that one’s autonomy to swing one’s arm stops just short of another’s nose. And, in the Mississippi abortion case, the Supreme Court is dealing with more than swinging arms and broken noses when it considers the reach of autonomy.

Even on its home turf, the Reform stress on autonomy is problematic. Traditionally, Judaism has been a system not of rights with respect to one’s body or otherwise, but one of obligations. It is a system less libertarian and more communitarian. Judaism evolves, of course, but if everyone is free to act according to one’s own conscience, what holds the community together and how can whatever shared values that might remain be transmitted?  More specifically, on abortion, the Reform movement has typically taken a permissive stand with respect to the grounds justifying an abortion, but it has never formally adopted a resolution expressly condoning abortion on demand.

In sum, the arguments made by some of the Jewish amici seem out of character at times and problematic at other times. But why? Why did the vast majority of Jewish organizations who decided to enter this case feel compelled as Jews to signal approval of enabling access to abortion facilities? Why, indeed, are Jews so interested and invested in abortion?

Have American Jews have suddenly become Talmudists, intent on following precepts announced over a millennia ago? Given their behavior generally, that seems unlikely.

Are there are too many Jews around today? That seems unlikely, too. If there are just over fifteen million Jews worldwide out of a total 2021 population of almost 8 billion, then Jews constitute less than two-tenths of 1% of the world’s population. Even in the United States, Jews do not exceed 7 million, which would place them at about 2% of residents here.

Despite the absolute numbers, could Jews now be reproducing at a rate that requires abortion as a means of population control? Again, unlikely. According to the most recent 2020 Pew survey of American Jews, Jewish adults between ages 40 and 59 have an average of 1.9 children. A different study generates a similar result. Of course, trends may change and the Jewish population may also gain from immigration, intermarriage, and otherwise. But the current estimated Jewish birth rate in the United States is not only lower than the comparable number of 2.3 for the general population, it is not sufficient to replace the Jewish population which exists, let alone maintain the community’s position at about 2% of the total national population.

Moreover, not one of the amici briefs signed by Jewish organizations mentions any unique or documented Jewish participation in abortions. On its website, the Jewish Pro-Life Foundation states that 17,622 Jewish abortions take place every year in the United States, but the source offered for that precise number, or anything close to it, is not clear, much less credible.

Unfortunately, objective and credible demographic data on abortions is not easy to obtain, nor is the information available complete. One of the best sources appear to be the Guttmacher Institute. Among the key findings in Guttmacher’s often cited 2014 survey of abortion patients are statistics about race, income level, and religion. Regarding race, Guttmacher reports that 39% of patients were White, 28% were Black, 25% were Hispanic, 6% were Asian or Pacific Islanders, and 3% were Other. About three-quarters of the patients were low income, with about half falling below the federal poverty level and another quarter at or at twice or less of the federal poverty level. As for religious affiliation, 38% of patients reported no religious affiliation, but 24% identified as Catholic, 17% as mainline Protestant, 13% as evangelical Protestant, and 8% as other. There are undoubtedly Jews in that mix, but their numbers are not apparent. And while there are Jews of color and economically poor Jews, the more common demographics concerning Jews suggest that they are not disproportionately more likely to be abortion patients. So again, why the interest, the commitment, the intensity?

While some have raised possible political or social rationales (see When Judaism Meets Science, at 194-95), perhaps the answer is less philosophical than personal. As the Supreme Court recognized in Casey, abortion is a unique act, one “fraught with consequences” for the pregnant woman, the fetus that may be aborted, and others. See Casey, 505 U.S. at 852. Perhaps because the subject involves the most intimate moments in a woman’s life, the decision to proceed or not with an abortion is beyond the reach of tradition or community, because the pregnant woman involved, and not some medieval (or older) scholar or even some congregation, will have to bear directly and substantially the consequences of her decision. Perhaps for the sake of shalom bayit (peace in the house), spouses, partners, parents, siblings, and others close to her, though they cannot necessarily share her pain, at least believe it important to try to support her choice.

In this light, if a pregnant woman is putting her interests before those of the fetus, well, if she is not for herself, who will be? And if her spouse, partner, parents, siblings, and others are not to provide support for the one they know, then for whom would they? The choice then may be about life and death, but not necessarily between life and death. It is perhaps more about relationships that have been established and ones that have not had time to develop.

Looking Forward.

One thing the Jewish amici briefs highlights is that the conversation that is taking place is not a dialogue, but a collection of monologues, each taking place in a room where stands a proverbial elephant. In the room occupied by our Orthodox friends, the elephant is in the form of pressures which weigh on a pregnant woman, pressures which arise from more than threats to her physical life, pressures that are psychological, social, and economic and quite real. For our heterodox friends, the elephant in their room appears as a fetus in the womb, alive since conception, definitely human, and developing daily.

That conversation about abortion, difficult enough, is distorted in a judicial setting, because that is inherently a place where arguments are expected, even encouraged, to be robust, the theory being that adversarial arguments will test propositions and some worthy judgment will emerge. And it is distorted, too, because while moral arguments abound, the Court is (or should be) constrained. As the main opinion in Casey observed, people “of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy . . . .” But those personal views cannot control the Court’s decision, because its “obligation is to define the liberty of all, not to mandate our own moral code.” 505 U. S. at 850.

While Jews in the United States live in two civilizations, as Mordecai Kaplan insightfully and expansively explained almost a century ago, on the topic of abortion, we seem to be challenged in our discussions by the tensions within the Jewish tradition and between civil law and that tradition. What might be helpful in the future and in other forums would be commitment to a different kind of conversation, one that is different first because we will heed Isaiah’s call to reason together (see Isa. 1:18), second because we will address the tensions that exist, and third because we will think and act empathetically in the interest of pregnant women, neonatal life, and the Jewish People. Perhaps such a conversation will allow more of us to recognize multiple realities and formulate a science consistent, ethically sound and meaningful, reality-based Jewish approach. We might start with these propositions:

  • Human life begins at conception.
  • Each and every human life that exists today is the result of personal encounters and conceptions involving a mind-numbing number of ancestors extending back to the emergence of our species about 250,000 years ago and an even greater number of encounters and conceptions over the course of scores of millions of years of evolutionary biology before then.
  • Each human life conceived is unique in its genetic makeup, both on this planet and, for all we know presently, in the entire universe.
  • Each and every human life conceived is, therefore, at least special, deserving of respect and dignity, its distinctive presence being at least a statistical miracle, and, some would say, a divine one, as well.
  • Termination of the life of a healthy fetus is a final and irrevocable act ending a unique life of unlimited potential. Such loss is to be regretted, even mourned.
  • Life is complex and often not fair, and an unwanted pregnancy falls into both categories.
  • However complex and unfair life is, our obligation is to lessen the burden of those involved.
  • While governments may have an interest in the health and welfare of their residents, with respect to a fetus, that interest is less prior to, and maybe should not attach at all prior to, the viability of the fetus as determined by an appropriate medical professional.
  • A pregnant woman who cannot take care of an unwanted child ought not have to do so, nor should we wish that child be placed in her care.
  • Those who seek an abortion should be able to secure credentialed and competent medical services in a safe environment.
  • Terminating innocent life ought not be favored nor undertaken casually or for trivial reasons. Neither should it be exercised as method of engaging in gender or trait selection.
  • Those who care about a woman’s welfare and also that of the unique life she carries ought to work together to reduce unwanted pregnancies in the community and provide more options than expedited abortions or forced births.
  • Calling for a system in which abortions are legal, safe, and rare, may be a political act for some, but it is also an approach which is authentically grounded in Jewish ethics and modern science.

The Jewish community is divided on many issues, small and large. Abortion is literally about life and death. It cries out for all of us to reason together. Can we at least agree that instead of fighting with one another, we should talk about helping women who need help and save lives in the process? A crazy idea, perhaps, butif not worth trying, why not, and if not now, when?

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One Response to “When Jews Argue in the Supreme Court About Abortion”

  1. Dear Roger, Thank you for your fair treatment of our Amicus brief. We are grateful to the Justice Foundation for filing it. It was the first time that a pro-life Jewish perspective was presented at the Supreme Court in an abortion case. We always keep in mind that shedding innocent blood is reprehensible to the God of Israel and nature's God. Jewish abortion advocates have been carefully and systematically taught to accept killing babies in the womb in some or most or all circumstances.  Compassion and sympathy without respect for life produces death, heartbreak, and social disintegration. Those who lack this awareness gain self esteem, acceptance, and meaning from their social justice, feminist goals while the abortion industry uses them to profit in the billions of dollars and perpetuate their eugenics goal of destroying the lives and future of minorities, including Jews.The remedy for this common ailment is to reject false gods and ideologies in order to regain personal and spiritual integrity.

    Every argument justifying abortion fails in the light of the never ending Providence of our Creator who knows each one of us before conception, and who tasks us to personally help the disenfranchised to prosper – that includes a struggling woman with child. It's a task worth assuming.

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