I don’t need to tell you that the revelation of the draft opinion of Dobbs v. Jackson Women’s Health Organization sent shockwaves through our national environment. The opinion, if the final version holds true to the draft’s core holdings, would overturn a 50-year-old precedent bearing on among the most intimate decisions anyone will face in their lifetimes.
While one should be careful about suggesting that a thousands-year-old religious tradition made up of a multitude of voices falls squarely on one side or the other of any contemporary debate, there is no doubt that Jewish religious tradition makes space for abortion in certain circumstances, especially to save the life of the mother. Beyond that, there is ample Jewish jurisprudence, from centuries ago to the present, debating the different circumstances under which abortion is permitted under Jewish law. All of this is to say that Judaism is not a tradition that has a blanket ban on abortion, and the assumption that all religions line up squarely against the pro-choice position is misguided.
In some ways, this is besides the point. The demonstration that Judaism makes space for abortion in some cases is not meant to lead to the conclusion that each of us should, too. It’s meant to demonstrate that this is clearly not a question on which there is even religious, let alone national, consensus, which means we should be highly skeptical of efforts to impose any single religious perspective on others on a question as fraught, uncertain, and morally complex as that of when personhood begins, especially when it means imposing life-altering consequences on the pregnant person. This is an area where deference to the individual is warranted.
One of the values inherent in the Roe v. Wade holding, and one of the values of a functioning judiciary, is that there are certain unalienable rights of which no governmental body, even when sanctioned by a vote of the majority, should be able to deprive individuals. Classically these include, for example, the right to be secure against unreasonable search and seizure in one’s home or one’s body, the right to peaceably assemble, and the right to due process when one’s life, liberty, or property is in jeopardy, to name but a few. It has been the job of courts to be the guardians of those rights, striking down laws that would infringe upon them, even when passed through democratic channels. See for example, the Supreme Court’s role in striking down government actions that would keep schools racially segregated in Brown v. Board of Education.
The question of abortion, which implicates the most sensitive, intimate elements of life, would seem to be an area where the Court would be especially vigilant against, and wary of, a legislature’s imposition of a particular standard on individuals, leaving it instead up to individual people, as is done when so many other fundamental rights are implicated.
When the U.S. Constitution’s framers enshrined many of these fundamental rights in the Bill of Rights, there was a debate among them about whether this explicit enunciation of rights would have the unintended effect of suggesting that non-explicitly enumerated rights were therefore, essentially, less fundamental, and therefore more susceptible to majority rule. These concerns now appear prescient. The Court, if this draft position holds, has effectively stated that if a right is not explicitly enshrined in the Bill of Rights, the Court will be skeptical about the fundamental nature of that right, and therefore that a pregnant person’s right to choose can be infringed.
These questions are never easy. Balancing different interests at stake here is not without complication. But as members of the Jewish community, whose ancestors have experienced firsthand, throughout the generations, discrimination and disregard by governing bodies of their fundamental rights, we should be skeptical of, and vigilant against, impositions of standards that would do significant harm to one’s bodily autonomy based on an understanding of personhood that is not shared by all.
The most straightforward way to re-establish these rights is to mobilize to ensure candidates who support your position are elected, and that the judiciary is reformed to ensure there are sensible approaches to how, and for how long, judges and justices, serve. Our synagogue has arranged Get Out the Vote mobilization which you can read more about here. Strength is also found in solidarity with rallies like this one.
We know we live in tumultuous times, and we know the future is not determined; we can help shape it. Chazak Chazak, from strength to strength.
