Wading into Dangerous Waters

The first Supreme Court case that I have a distinct memory hearing about when it was issued is Engel v. Vitale, the 1962 case in which the court ruled that sponsored prayer in public schools was unconstitutional. (I can’t dredge up the memory when I first heard about Brown.)

As the 1960s progressed, though, I became increasingly politically aware, and excited as the Warren Court began to more fairly apply to all Americans the promises of liberty and equality contained in the Declaration and Constitution. So I was heartened as Engel was joined by (partial list): Abingdon (school Bible reading), Gideon (right to counsel), Times v. Sullivan (libel/free speech), Reynolds (one person — one vote), Griswold (contraception), Miranda (those rights you always hear about on cop shows), Loving (interracial marriage), Brandenburg and Tinker (free speech), the Pentagon Papers, and Reed (women’s equality).

Which brings me to — no surprise, I’m sure, to regular readers — the Alito draft opinion overruling Roe.

It’s been a distressing and depressing few weeks for old-time ’60s liberals like me and some of my friends, who, knowing that new issues and conflicts constantly arise, had hoped that some battles were over, some freedoms firmly protected, some liberties securely entrenched. But if the dark years of 2017–20 taught us anything, it’s the fragile nature of freedom, liberty, and democracy, and the constant nurturing their preservation requires.

And yet I inwardly grappled with myself about whether to write about Roe. One part of me asked if there is anything left for me to say that hasn’t already been said. Another part, though, has so much to say that I don’t have the chutzpah to ask my generous editor for all the space my thoughts require. (But readers shouldn’t worry; I’ve whittled it down a lot since I’m not discussing the many technical legal/constitutional issues in detail.)

The second part of my inner dialogue obviously prevailed. For clarity, I’ve split this column into two sections: the first, a discussion of the importance to the American ethos of protecting personal rights and freedoms including abortion rights, and the second, a discussion of my Orthodox community’s relationship with Roe.

I.
Let me start with three stories.

1. In the 1950s, when a ruckus arose over the issue of whether halacha permitted a Jew to save the life of a non-Jew by violating Shabbat, a prominent rabbi is said to have responded to his students’ questions as follows: “I’ll need a few days to gather all the sources and present a detailed lecture. But until then, you need to know now that of course you must save the non-Jew. Halacha cannot possibly be otherwise.”

2. In the early 1970s, many Orthodox groups opposed a proposed NYC equal rights law protecting gay people. My rabbi, R. Shlomo Riskin, publicly supported its passage, explaining that Orthodox Jews can never support discrimination.

3. I once attended an all-day CLE program that presented Justice Scalia as the lunchtime speaker. He gave an address I’m sure he’d given many times before, which included his emphasizing that the word privacy is not found in the Constitution, and his wry offer to give every new federal judge, upon their assuming the bench, a stamp saying “Stupid But Constitutional.”

During the Q&A, someone (guess who) asked: “Since the word children, like privacy, isn’t mentioned in the Constitution, would it be constitutional for a state to follow China’s lead and limit the number of children a couple could have?” After verbally patting me on the back (“hmmmm, interesting question; no one ever asked me that before”), he began musing out loud until he concluded that such a law would, indeed, be stupid but constitutional.

In my mind, the tzad hashaveh beineihem — the common denominator in Talmudic terminology — between the first two stories is the lesson that some things simply cannot be. Halacha cannot possibly support an observant Jew denying life-saving aid to a non-Jew on Shabbat; Jews cannot possibly support discrimination. Justice Scalia, however, was wrong in story 3 because he did not grasp this idea. America was built, albeit imperfectly, upon a foundation of personal liberty, freedom, and equality, and such an America could never legislate a matter as personal, private, and intimate as family size. It just cannot be. Not in America.

Why is this relevant to Roe? Because notwithstanding the draft opinion’s attempt to isolate Roe from other cases, it is inextricably connected to ones like Griswold, Loving, Lawrence (criminalizing consensual gay sex is unconstitutional), and, yes, Brown, that are philosophically based on similar understandings of liberty and constitutional theory. All were criticized when they were decided for reasons similar to those in the draft opinion criticizing Roe; legislative chambers and church pews angrily greeted them, as they gleefully greet Roe’s proposed overturning, with the same shouts of “let the states decide.” And if Roe falls, the foundation of these precedents becomes much shakier.

(I’m aware of the draft opinion’s statement that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But I give that as much weight as we should have given to the confirmation hearing statements about stare decisis made by the justices signing onto the draft.)

So let’s imagine for a moment a United States without Brown, where citizens are debased and degraded, insulted and injured, made voiceless and voteless because of the color of their skin. Or without Lawrence or Loving, where men and women are scorned and shunned, ignored and incarcerated because of whom they love or the race of those they marry. Or without Griswold, where the government intrudes into the sanctity of our boudoirs and bedrooms and interferes with our individual and intimate married lives. Is this an America we want?

But, my opponents object, Roe’s different. To me, though, pre-Roe history and some of the post-Roe proposed abortion statutes teach otherwise. I know we once had, and I fear we’ll yet see, an America with poor women desperate for an abortion to end dangerous or unwanted pregnancies dying in back alleys or losing, while lying on gurneys in emergency rooms, their future ability to bear children, though their wealthy neighbors are always able to find a way around the law. An America of doctors having to defend themselves against murder charges because of after-the-fact second guessing of emergency medical decisions; an America of health-care professionals, fearing retribution from the abortion police or vigilantes, not providing necessary and beneficial medical procedures to pregnant women; an America of girls, teenagers, and young (and older) women being forced to become mothers because their claims of rape or incest are ignored or deemed insufficient for prosecution.

Before Roe, these deeply personal, private, moral, medical, family decisions were usurped by (usually male) legislators and district attorneys, taken from the hands of the women carrying the fetuses or from those women and their doctors, husbands, or religious/moral advisers. And if Roe is overturned, those woeful days likely will return.

Again I hear the voices of those who disagree: you’re imagining things, Joseph. Just leave it to the states and the democratic process, and things will work out. That’s the American way.

Were I only that confident. My study of our nation’s history reminds me that leaving personal freedoms to the states often failed miserably. For example, for 30 years, from the end of reconstruction until Plessy, we left segregation and equality to the states. How did that work out? And then, after the searing setback of Plessy, we again left it to the states for more than 50 years. Same question.

We all know the answers. Both times, leaving it to the states resulted in an America that was an embarrassment to the words liberty, freedom, and democracy as far as our Black brothers and sisters were concerned; the Union’s Civil War victory was turned into Lost Cause ideology. The states did not allow the unfinished work about which Lincoln so eloquently preached at Gettysburg to be finished.

Leaving it to the states also didn’t work much better for gay people, mixed race couples, or married couples making intimate decisions about contraception. And it doesn’t bode well for abortion either.

Please don’t misunderstand me. Brown and Loving didn’t end racism nor Lawrence homophobia, both of which continue to leave a stain on America’s conscience. But what these cases did do was remove the legal imprimatur protecting these unforgiveable ideologies, significantly improve the situation on the ground, and provide a path forward towards continuing improvement.

What these cases also demonstrate is that some rights and freedoms are so personal, so precious, so private, so inalienable, so essential to what America and liberty and equality are about, that we don’t leave them to the legislative democratic process. We protect them through our foundational documents and rejoice when those nine robed figures in that majestic building on the Mall rise to the occasion and apply those documents to make us proud of who we are. And we weep when they sometimes fail us, as they did in Dred Scott, Plessey, and Korematsu. Perhaps it’s not too late to hope that pride will be victorious over tears when Roe’s fate is finally decided.

II.
Aside from my broader concerns about what the proposed overturning of Roe will do to our country, I have a more parochial concern: disappointment with the reactions to it by two important Orthodox organizations that speak for significant parts of my community — the Orthodox Union and Agudath Yisrael (the Coalition of Jewish Values doesn’t make the cut).

These organizations, and many Orthodox Jews, are uncomfortable with Roe because they believe that while it’s partially beneficial in that it protects abortions that are permitted/mandated by halacha (“halachic abortions”), it also protects abortions forbidden by halacha. This tension underlies the OU’s statement that it “is unable to either mourn or celebrate the . . . likely overturning of Roe.” It’s reasoning is what I call the “halachic oy vey reaction.” Oy vey, overturning Roe might result in bans on halachic abortions which “would literally limit our ability to live our lives in accordance with” our religious and halachic values and responsibilities. But oy vey as well if Roe continues in effect because it protects abortions “completely at odds with our religious and halachic values.” The solution? None is offered other than to sigh oy vey.

Agudah has made no definitive statement about the draft opinion, though its director of public affairs and spokesman discussed it in a personal opinion piece. Rather, it says it’s waiting until a final opinion is promulgated. Fair enough.

We have, however, a good idea of its position because in 1992, in Planned Parenthood v. Casey, the Supreme Court case that ultimately upheld Roe’s basic protection of abortion as a constitutional right, Agudah submitted an amicus curie brief (which is referenced in its director’s essay). In that brief, Agudah urged the court to overturn Roe’s holding that a constitutional right to abortion exists, which would send abortion law to the states. But realizing that state laws could ban halachic abortions, it also sought to protect their availability by arguing that abortions sought by women who had been advised by their clergyman “to procure that abortion as a matter of religious obligation” are “constitutionally grounded.” Such abortions, but only such abortions, Agudah asserted, deserve “enhanced constitutional status,” which it asked the Casey court to provide.

Casey’s upholding of Roe made that request moot. But it’s likely that if Roe is overturned, Agudah will applaud that conclusion and, at the first opportunity, seek from the Supreme Court protection for halachic abortions only, as it did in Casey.

Agudah’s argument is legally elegant, presented in appropriate constitutional language. But let me translate it into lay terms: if (a) Ms. Cohen, an Orthodox Jew, and her neighbor Ms. Murphy, a Catholic, both are pregnant, have exactly the same medical condition, and have both received exactly the same medical advice — that they need an abortion for serious medical reasons that would violate state law, and (b) Ms. Cohen has been advised by her rabbi to procure the abortion as a matter of religion obligation while Ms. Murphy received no such advice from her priest, then Ms. Cohen gets her abortion while Ms. Murphy does not. Or — and these are my words and not Agudah’s — as long as our people are protected we don’t care very much about others.

That argument might be acceptable for a group that never entered the fray; for those who took no position on Roe even if they benefited from its protections. It would be understandable if such groups, suddenly confronted with a loss of Roe’s protection, concentrated their efforts on protecting their community’s interests.

But it’s different if you’ve affirmatively advocated, as Agudah has, for the removal of existing constitutional protection for all and then seek continuing protection just for your co-religionists. That flies in the face of Hillel’s essential Torah value of “that which is hateful to you, do not do to another.” (Shabbat 31a)

So what is my solution to this dilemma? I’ll give you a framework in two words (upon which I’ll expand): tolerance and humility.

I start with the critical fact that we’re living in a liberal democracy where basic personal rights are protected; a country that respects all its citizens and accepts a multiplicity of beliefs, values, and actions; a malchut shel chesed, a country of loving kindness, in which Jews are fully welcomed as active citizens and not mere guests; a country in whose processes and decision-making Jews vigorously and enthusiastically participate; a country where Jews proudly raise their voices and those voices are heard.

In such a country, we have to act differently than we did when we were a persecuted minority, praying that the majority, in making the rules, let us live quietly in peace according to our beliefs and values. In such countries we hoped mainly to be ignored, and having zero say about anything beyond our own four walls, we did not give much thought to the rights and concerns of others. Certainly that’s understandable.

But now we’re also the rule makers; we’re legislators, voting blocs, lobbyists, judges, amicus brief and law review article writers, plaintiffs and defendants in constitutional cases. And while we must, of course, always care about our own community while advocating for national policies, we must also, as participatory American citizens, seriously care about our fellow citizens as well.

Let me elaborate on this idea by examining two hypotheticals. In the first, a fetus has been diagnosed with Tay-Sachs, which many respected halachic authorities deem a valid basis to allow an abortion. But many in the anti-abortion camp do not agree; their values and understanding of protecting life oppose such abortions.

To protect this halachic abortion we don’t argue, I hope, that the anti-abortion advocates are wrong and we’re right. Rather, we explain that our view, while different, is, like theirs, based on serious moral principles, values, and our understanding of the sanctity of life. And that this view therefore is entitled to respect and tolerance.

Now, let’s do a similar analysis using a second hypothetical, that of a pregnant 13-year-old rape victim who, according to many halachic authorities, is not allowed an abortion. In this situation, we are in the position of the anti-abortion advocates. However, we also know that there are people as good, thoughtful, caring, and wise as we are who believe that based on serious moral principles, values, and their understanding of the sanctity of life, such an abortion should be allowed.

For the American experiment to work, we need to act in the second case as we want others to act in the first; we need to balance our belief system against different though equally valid belief systems. In other words, just as halachic values are tolerated and protected in the first case, non-halachic moral values need to be tolerated and protected in the second.

I say this both as a matter of principle (tolerance of and respect for positions other than ours is an essential part of the American ethos) as well as pragmatism (if we won’t be tolerant of others’ values why should anyone be tolerant of ours?).

I would go one step beyond tolerance to humility. Recently a young friend (indeed, a very young friend, since he is actually the son of one of my young friends) and I began discussing Roe after shul, and continued that discussion in a lengthy email thread. This friend, wise, thoughtful, and articulate beyond his years (though we disagree on some matters including aspects of Roe), helped me clarify my own thinking on this issue, and re-introduced me to the concept of epistemic humility — the realization of the limits of one’s own knowledge and the need to act in accordance with such recognized limitations.

Described another way, it’s the need to be humble because we really don’t know as much as we think, so our actions may not always be right. As I see it, this concept applies to values as well as to knowledge; that is, humility demands that we recognize that our values are not as singularly correct as we may think. There may be — indeed there often are — differing values, a multiplicity of which have validity and deserve respect.

This is not, I think, moral relativism, where no position or value can ever be uniquely privileged over all others. Some positions are clearly wrong and cannot be tolerated. Indeed, I agree with Midge Decter (with whom I rarely agreed), that “one has somehow got to make distinctions, draw lines.” But in a multicultural mixed secular/religious society, those lines can, and often do, lie beyond the lines we draw for our community. There needs to be flexibility and open-mindedness; communities, including our religious community, must realize that other legitimate moral values exist beyond our own, and deserve the same respect from us that we expect for ours.

•••••
Abortion is complicated. Constitutional law, minority rights, and protecting freedom and liberty are complicated. Our place in the marketplace of ideas and American decision-making is complicated. Tolerance, respect, and humility are complicated. But we must grapple with and push through all these complications to figure out ways to protect our community’s values as well as the differing ones in the multitude of communities that constitute the collage that is America. Overturning Roe is not such a way.