The draft opinion of the decision of the United States Supreme Court leaked to the press last week that strikes down the precedent legalizing abortions established in the groundbreaking ruling almost fifty years ago in Roe v. Wade (1973) and reaffirmed in 1992 in Planned Parenthood of Southern Pa. v. Casey has sent ripple effects throughout the world. Israel is no exception. As in the United States, Europe, South America, Asia, Africa and Australia, at issue are not only the rights of women over their bodies, but also fundamental questions of freedom from transient power constellations that seek to dictate personal norms and behavior that extend to other spheres as well. Despite historical, cultural and political differences, the pushback against the expected retrogressive ruling in Dobbs v. Jackson Women’s Health Organization therefore touches – here as elsewhere – on the most fundamental foundations of democratic life.
The debate over abortions has been a major source of political confrontation in the United States for more than half a century. With time, the struggle between pro-choice and pro-life advocates has come to define partisan divisions and cement contending perceptions of the American past, its human composition, and its mindset. Until recently, however, repeated attempts to undermine the precedent laid down by the Supreme Court failed. Only since three conservative appointees who passed the anti-abortion litmus test during the Trump administration joined the Court has it become possible to forge a majority to do so. In this vast and diverse country, in which close to 70% favor abortions in one form or another, a carefully engineered political campaign to take over key political institutions is about to succeed in upturning years of steady progress in the extension of full political rights on the basis of gender, sexual orientation and ethnic affinity.
The reasoning behind this move is instructive. The first pillar is constitutional. In his leaked draft opinion, Justice Sam Alito pronounces unequivocally that the right to abortion has no grounding in the US Constitution and, in his opinion, is not covered by the due process clause of the 14th Amendment, which guarantees rights not included therein if they are “deeply rooted in the nation’s history and tradition” and “implicit in ordered liberty.” In effect, as his critics have hastened to point out, his ruling implies that the wombs of women are not their property and that they do not possess control over their bodies. The inference, then, is that the polity (still largely male-dominated) has the right to decide how women should conduct their most intimate affairs – thus jettisoning their bodily autonomy.
The second pillar of the draft opinion relates to legal precedent. After decidedly overturning both Roe and Casey, the Court refers the issue of abortions to state legislatures, leaving in their hands the decision to prohibit, protect, or proscribe abortion rights. A scramble has already begun in many states to entrench state positions in anticipation of the formal promulgation of the ruling in the next few months. But the repercussions are far more wide-reaching: what is true for women can be applied to marriage (inter-racial or same-sex) as well as to gay, minority and immigrant rights. This basis for the constriction of liberties gained during the past century and more can be used to defy the call to “keep your laws off our bodies.”
The final pillar embedded in the proposed decision is unquestionably political. It constitutes a concerted effort to offset basic principles of equity and inclusion that have become an integral part of the contemporary democratic ethos. As such, it blurs the separation between the private and public spheres, using the position of the highest court of the country to offset past achievements and to curtail future progress.
The Israeli experience
The lessons for the Israeli experience may, at first glance, appear to be limited. Although the feminist community reacted strongly to the publication of the Alito draft, events of the past week have seemingly dimmed the relevance of this global tidal wave locally. Such a reaction is as foolhardy as it is misplaced.
From the outset, it misrepresents the present situation regarding abortions in Israel. To be sure, since the adoption of the 1977 amendment to the penal law which allowed for abortions in certain circumstances (age of the mother, documented fetal malformations, marital status, health of the mother, and, for a brief period, social considerations – a provision deleted in 1978 under pressure from Orthodox parties) and the creation of professional committees to approve requests to end pregnancies under these circumstances, Israeli women have been able to gain access to such services.
Since then, however, although about half of the abortions conducted in the country (16,492 in 2020) have gone through the committees, close to 20,000 annually have been conducted privately. The bureaucracy, intimate questioning, and the humiliation associated with appearances before these bodies are legion, leaving a real socioeconomic gap between those appealing to the committees and those able to procure private services. Only in 2014 were officially approved abortions included in healthcare benefits. Ironically, although there is far more awareness of means of contraception now than ever before – an educational process frequently seen as the main factor in the 30% reduction in abortions over the past thirty years – to this very day the costs of contraception are still not covered in the health package.
In Israel, as in other places, the right to abortion has always been associated with women’s control over their bodies and their destinies. Efforts to limit this right for religious, national and cultural reasons have accompanied attempts to diminish the status of women in society, in effect demoting them, with all their accomplishments, into second class citizens. They undercut essential liberties (including freedom of choice), circumvent basic notions of equality and equity, and inevitably affect personal security.
Recently, organizations inspired by Christian Evangelicals have gathered steam, mounting campaigns to further limit – if not outlaw – abortions. The struggle for control over one’s body has become that more difficult – not only on matters of abortions, but also on issues affecting gender-based violence (as Yael Sherer’s courageous work to protect victims of sexual violence recognized at the Independence Day celebrations so sensitively demonstrated). An invidious, quiet, type of pressure – verging on outright terror – is evident at committee sites, in the media, and on the social networks.
The struggle to dispense with the limitations on abortions and their social consequences has nevertheless continued unabated. A proposed bill to permit first-term abortions failed in 2015. Just a few months ago, Health Minister Nitzan Horovitz announced a plan to revive this bill and to instruct committees to revise the type of questions they posed to applicants – even though over 98% of petitions are approved by the committees. Most significantly, a petition launched by a broad array of women’s organizations is campaigning for the disbanding of the committees and for the introduction of legal protections for women undergoing pregnancy termination procedures. Along with a campaign to press Israel to join the Istanbul Convention against gender-based violence, these initiatives have been subsumed by other, seemingly more pressing, matters.
This shouldn’t be the case. The kind of direct and indirect action against women that has resulted in the stalling or palpable slippage in their standing during the past few years (and especially during the corona pandemic) is also visible vis-à-vis other groups as well. The same tools and reasoning are employed towards the Arab community in Israel, towards Ethiopian-Israelis, towards Russian speakers, towards residents in the periphery, and once again towards asylum-seekers. The discourse of separation in these instances almost always contains misogynous allusions. It also redraws the criteria for inclusion and exclusion, thereby adversely affecting social solidarity.
In Israel, the position of women has therefore come to signify the extent and depth of democracy in the country. While grassroots feminist action continues apace and notions of a shared society are liberally aired, tolerance and mutual trust levels continue to plummet and political considerations encourage unequal treatment. What starts with discrimination against women spreads like wildfire because the invasion of politicians into the private lives of citizens chips away at the values that uphold free societies.
That is why the struggle of women for control over their bodies and their life choices is so central to the fight against arbitrary actions that threaten individuals and groups at the margins of the power nexus. Their success is the key to the construction of truly inclusive, equitable, and hence vibrant democracies.