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The sky is falling! (right onto Laura Kam)

A featured post by Ms. Laura Kam, “Abortion rights clash bodes ill for US Jews and Israel ties,” overflows with dark warnings about recent trends in American law. Her state of alarm is triggered by abortion, and she says: “Judaism allows for abortion under at least some circumstances, and for most Jews, Republicans and Democrats, it is a core value whether they understand the religious basis for their beliefs or not.”

She goes on to say:

As more states criminalize abortion under any circumstances, Jews and the organizations they support are concerned about reproductive rights – but not only reproductive rights. Basic American rights are now in question, such as religious freedom and separation of church and state, the very civil liberties that have made living in America so comfortable.

Please read the above paragraph very carefully. It bears careful reading, because there is not a single State in the United States that “criminalizes abortion under any circumstances”—not one. Nor is there any State in the United States whose legislature is currently considering proposed legislation that “criminalizes abortion under any circumstances”—not one.

The only particular State’s law she discusses is Florida’s, which prohibits abortions after 15 weeks, unless the procedure is necessary to save the pregnant woman’s life or to prevent serious injury to her, or if the fetus has a fatal abnormality. There are no exceptions for pregnancies resulting from rape, incest or human trafficking.

The Florida law permits abortion through the fifteenth week of pregnancy, and also permits abortion at any time to prevent serious or fatal injury to the pregnant woman—it does not “criminalize abortion under any circumstances.” As Ms. Kam notes, most branches of Judaism “allo[w] for abortion under at least some circumstances,” but so does the Florida law. So, the Florida law, on its face, is perfectly consistent with most branches of Judaism.

What Ms. Kam is arguing, whether she realizes it or not, is that what is in reality a political controversy over how freely abortion should be available ought to be viewed as a religious dispute, where non-Jews are seeking to impose their religious beliefs on Jews. This is false as a matter of fact, because no State bans abortion where the life of the pregnant woman is at risk, and thus every State has laws that are consistent with Jewish law that “allows for abortion under at least some circumstances.” And it is also a dangerous tactic to treat political differences as if they were religious disputes—no one should be urging American Jews to view their non-Jewish fellow citizens as religious bigots.

Ms. Kam cites with apparent approval a “recent Florida lawsuit brought by Temple L’Dor Va-Dor in Palm Beach County, which may be a template for future suits, argu[ing that] the Supreme Court’s recent decision violates Jews’ First Amendment rights to practice their religion.” I’m predicting that that lawsuit is going nowhere, because the Supreme Court’s decision does not violate anyone’s rights to practice any religion.

Abortion is not a rite of Judaism, or of any other religion. Abortion is a procedure that is permitted under certain circumstances by Jewish law, but it is not required (except perhaps in the case of grave risk to the life of the pregnant woman, and that circumstance is recognized by the laws of every State in the Union). A Jewish woman who aborts her pregnancy is not a better Jew than a woman who gives birth. A woman who gives birth is not, for that reason, a bad Jew.

Moreover, different branches of Judaism differ as to the circumstances under which abortion should be available. There is no requirement that US law coincide precisely with every rule of Jewish law. In fact, it would be impossible for US law to so coincide, because there are differences among different branches of Judaism as to the rules regarding abortion. Must US law correspond to strictly Orthodox rules on abortion, or Conservative rules, or Reform rules, or Reconstructionist rules? Again, there is no State law that prohibits abortion where the serious physical health or the life of the pregnant woman is at risk, and that fact negates any claim that overturning Roe v. Wade somehow violated Jews’ rights to the free exercise of their religion.

Ms. Kam ought to take a deep breath and consider the possibility that the sky really isn’t falling. It makes no sense to pretend that what is really a political dispute—Ms. Kam wants to see abortions more freely available than is or will be the case in the conservative-leaning States of the United States—is a religious dispute. In truth, that pretense is dangerous. Nothing good will come from the false accusation that, in returning the regulation of abortion to the States (where such regulation had been exercised for almost two hundred years before Roe v. Wade), the Supreme Court has prohibited the free exercise of Judaism, or of any other religion.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2523973
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