The Supreme Court, abortion and the ballot box

Last week, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, in which Mississippi has asked the court to upend the right of women to obtain an abortion before a fetus is viable.

Mississippi passed a statute that prohibits abortions after 15 weeks of pregnancy. A case challenging Texas Senate Bill 8, which prohibits abortions after a fetal heartbeat, likely detectable after six weeks of pregnancy, is also pending before the court.

A majority of the court’s nine justices indicated, through questions and comments, a willingness to uphold Mississippi’s law, and also the real possibility of overruling the Roe v. Wade decision in its entirety.

Justice Brett Kavanaugh likely summed up the views of the court’s five most conservative jurists (Kavanaugh, and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett) when he repeatedly noted that he is open to overturning Roe, despite assurance that the right of women to a pre-viability abortion is precedent or settled law.

Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor have spoken openly of their viewpoint that Roe should not be reversed.

“If we think that the prior precedents are seriously wrong…why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is to return to the position of neutrality?” Kavanaugh’s question to the Center for Reproductive Rights lawyer Julie Rikelman, plainly revealed that overturning the Roe decision is a very real possibility.

Regrettably, the fate of Roe and other important fundamental civil rights that the Supreme Court has recently recognized have been in dire peril as a consequence of President Donald Trump’s election in 2016. Trump won the White House pledging that he would appoint Supreme Court justices who would abolish federally-protected abortion rights.

Justice Sotomayor cut to the core of the conundrum confronting the High Court as it weighs whether or not to curtail abortion rights: “Will this institution [the Supreme Court] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

For American Jews, the issue of women’s access to a full complement of health services, including abortion, resonates with the constructs of fundamental justice. “Justice, justice shall thou pursue,” the Torah teaches in Deuteronomy 16:20.

Our sages taught that abortion is appropriate when necessary to save the life of a mother (Shulchan Aruch, Choshen Mishpat 425.2). Once a “child puts out its head from the body [of the mother], it may no longer be killed to save the mother, since we do not ‘push aside one life for another.’”

Rashi explained that there must be flexibility in interpreting what is appropriate in difficult situations. If a man strikes a pregnant woman thereby destroying a fetus, he is obligated to pay money damages for the loss of the child, but the status of the unborn child is not equivalent to that of a living person, so there is no liability for committing a murder, taught Joshua Falk in his classic commentary “Me-irat Einayim.” Falk developed Rashi’s commentary, writing: “While the fetus is within the body of the mother it may be destroyed even though it is alive, for every fetus that does not come out or has not come into the light of the world is not described as a nefesh [soul].”

Clearly, teenage girls and women who contemplate abortion should make such an important decision carefully with the guidance of a capable and caring physician. For Jewish women and teenage girls, counseling with their rabbi is of great import.

If, as now seems likely, the Supreme Court overrules the right to an abortion as a fundamental Constitutional freedom, teenage girls and women across America will live in a sea of inequality. More progressive states, like New Mexico, New York, Hawaii and Washington, will have access to a full complement of health services under those states’ laws.

The last special session of the Texas Legislature enacted a “trigger bill,” which will automatically make abortions illegal if Roe is overruled.

Those with adequate financial resources will be able to travel to more progressive states for medical care. But those hindered by financial limitations will be fated to grapple with unwanted pregnancies even in cases of rape and incest.

Just as halacha recognizes that there are circumstances where abortion is appropriate, the laws across America should be responsive to a woman’s right to choose, which has been the law of the land in America since Roe was decided by the Supreme Court in 1973.

Should the Supreme Court nullify or curtail a woman’s right to choose, Texas’ state elections for governor, lieutenant governor, attorney general, the Legislature and elected judges will become the next battlegrounds in the quest for individual liberties to be fully realized.

A version of this editorial appeared in the Dec. 9, 2021, issue of the Jewish Herald-Voice of Houston.

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