Rachel L. Suggs
Decker, Pex, Ofir & Co.

The Right to Abortion: Israel’s Committee, America’s Court, and Due Process

Following the U.S. Supreme Court overturning Roe vs. Wade and thus stripping the constitutional protection of the right to abortion, Israel has updated its decades-long abortion approval process. Here is an overview of the history and protection of the right to abortion in Israel and the U.S.

Abortion in Israel

The right to abortion in Israel is facing significant reform. Israel’s parliament passed a new policy on June 27, spearheaded by Minister of Health Nitzan Horowitz, which removes several barriers between women and abortion access. It grants women access to abortion pills through the Israeli universal healthcare system and allows abortions to be performed at local clinics instead of only hospitals or surgery clinics. 

Prior to this reform, Israeli women who wanted to terminate their pregnancies had to apply to appear before a special committee, comprised of one social worker and two doctors, who would approve or deny their request for abortion. Before the committee hearing, Israeli women had to complete questionnaires with very personal and private questions.

The new policy will exempt women from appearing before this committee, make the requirement to meet with a social worker optional, and shorten and simplify the application form.

The policy is set to take effect over the next three months. Once in effect, the committee will not disband, but will instead handle cases electronically, and only conduct hearings in the rare case that an abortion is denied, which only occurs in about 2% of cases, according to Israel’s Central Bureau of Statistics.

In accordance with Israel’s 1977 law on abortion, there are four criteria to terminate a pregnancy: if the woman is younger than 18 or older than 40, if the fetus is endangered, if the pregnancy was because of rape, incest, or other non-consensual circumstances, and if the woman’s health is in danger. Furthermore, abortions were strongly restricted to the first 24 weeks of pregnancy, and in order to receive an abortion after the 24th week, approval from a special abortion committee was necessary. 

Israel’s policies on abortion are significantly influenced by Jewish law— Halacha. Halacha prioritizes the preservation of life above all else, including the commandments of mitzvot, through the law Pikuach Nefesh. This law has been used by the biggest scholars in Judaism, even Maimonides himself, to prioritize the wellbeing of the mother during a pregnancy and to allow for an abortion. In regards to the classification of viable human life, the Talmud varies greatly in its definitions, but most rabbis concur that the first 40 days after conception are a lesser state of life, and if an abortion were to be medically ineviteble, it is best to perform the operation within this time period.

Even in light of this new reform, abortion in Israel remains largely apolitical, and the national abortion policy is not dependent on the political party in power. During elections, several policies are debated and used to sway voters, but abortion remains generally out of the discourse as a topic of high contention. This is in stark contrast to the political discourse in America, in which the protection of abortion rights is generally considered to be aligned specifically with the Democratic party.  

Abortion in the United States

The right to abortion is far more controversial in America than in Israel, often to the bewilderment of many Israelis. To understand the history of the constitutional right to abortion in the United States— or the lack thereof— and how this right became so contested, one need first understand the principles of procedural and substantive due process: where they transpire in American history, when they conflict, and how they cause disputes between the federal and state governments. 

The concept of due process itself, or the prevention of natural rights being rescinded at the whim of the state or without cause, originated in the 1215 English Magna Carta, which held that no one may be deprived of natural rights except “by the judgment of his peers and by the law of the land.” The procedural due process doctrine is found in the Due Process Clause of the 5th Amendment, which protects civil liberties: individual rights that are protected from the actions of the national government. The principle of substantive due process is found in the Due Process Clause of the 14th Amendment, which protects civil rights: equal treatment of citizens by the government, both federal and state. The 14th Amendment also established the Incorporation Doctrine, which retroactively applies the Bill of Rights, therefore civil liberties, to state governments. 

Procedural due process, which does not govern the right to abortion, is based on the words of the Constitution. It is the legal doctrine that requires an American citizen be given certain procedures, such as notice, the opportunity to plead their case, and a verdict by an unbiased third party before their rights to life, liberty, or property are revoked. It is relatively simple to decipher whether the government acted unconstitutionally in carrying out procedural due process, as it is clear if certain procedures were denied, and these cases are often indisputable between the state and national governments.

Substantive due process is where the right to abortion lies. This doctrine is significantly more opinionated, and questions whether the contents of a law itself— not the way a law is executed to an individual— infringes on civil liberties or civil rights, and whether these rights are protected by the Constitution.

Substantive due process creates far more conflict between the national and state governments than does procedural due process, as it allows for a wide diversity in interpretations of cases. Such discrepancies may lead to incongruities in court decisions across the country, and ultimately affect millions of lives. 

Following the substantive due process precedent, Roe v. Wade became perhaps the most famous substantive due process case in recent times when it was decided in 1973. In this case, a woman by the pseudonym of Jane Roe sued the District Attorney of Texas, challenging a Texas state law that criminalized abortion without a doctor’s order to save the woman’s life. Roe claimed that the law was “unconstitutionally vague and abridged her right of personal privacy protected by first, fourth, fifth, ninth, and fourteenth amendments.” Ultimately, the Court ruled that the Texas state law was unconstitutional because it violated the right to privacy, which was implied— but not stated—  in the 9th Amendment and alluded to in penumbras throughout the Bill of Rights. The ruling prevented all U.S. states from passing any laws prohibiting abortion in the first two trimesters. This was a constitutional reach, no matter the stance on the law.

Roe v. Wade was struck down in the June 24 landmark Supreme Court ruling Dobbs v. Jackson Women’s Health Organization. In this new ruling, the Mississippi Gestational Age Act, which restricts abortions to only the first 15 weeks of pregnancy, was challenged by the abortion clinic Jackson Women’s Health Organization as unconstitutional under the stare decisis of Roe v. Wade. Initially, the District Court ruled in favor of the abortion clinic, which the Fifth Circuit Court affirmed. However, when the case was escalated to the Supreme Court, the Court ruled that Roe v. Wade was wrongly decided, and the Mississippi law is constitutional because it satisfies rational basis review, a test used by courts to determine the constitutionality of statutes. Now that Roe v. Wade is overturned, abortion laws return to the discretion of each individual state.

Therefore, one of the many reasons why the right to abortion is so controversial in the U.S. is that it is a substantive right, and thus not straightforward like procedural rights. Indeed, substantive rights are where the state’s values come to center stage, as the doctrine allows for judicial activism in establishing whether certain rights are protected or unprotected by the Constitution, the majority of which were not fathomable when the Constitution was ratified, such as the right to marriage equality, same-sex relationships, and contraception. Substantive due process cases are where the vast majority of conflicts ensue, and many fear that it gives too much power to the Supreme Court, whose justices are not publicly elected and serve lifetime appointments. However, without the doctrine, there would be no coherent and practical process to protect and guarantee the ever changing landscape of civil rights for centuries to come. 

About the Author
Rachel L. Suggs is a student at the University of Chicago pursuing dual bachelors degrees in Law, Letters, and Society and Middle Eastern Languages and Civilizations. She an intern at the law firm Decker, Pex, Ofir & Co. in Jerusalem, Israel, which specializes in immigration law.
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