A number of Jewish groups are campaigning to ensure that only someone favoring an unfettered right to abortion will fill Justice Sandra Day O’Connor’s Supreme Court seat. It is an effort offensive not only to many non-Jewish Americans but to many Jewish ones as well.
Some of the campaigners are explicit about their goal. Others use code-phrases like “constitutional rights” and “fundamental freedoms” (the National Council of Jewish Women), “respect for … societal realities” (United Synagogue of Conservative Judaism); and assert the need for a “voice of moderation” and a “consensus candidate” (Religious Action Center of Reform Judaism).
What all the jargon amounts to, though, is a rhetorical shot across President Bush’s bow, a warning of the ire he will face from the inveighers should he dare nominate someone who might conceivably side with those sitting justices who feel that Roe v. Wade was a flawed decision.
Now, reasonable people can disagree about whether Roe was wise or wrongheaded; and about whether our country is a better place as a result of the more than 1 million abortions performed yearly — the vast majority for reasons of convenience — or whether there is reason to allow states to try to reduce that number.
Some may even take the position that an attempt to stack the judicial deck in order to preclude the objective consideration of so important an issue as abortion — to prevent the weighing of different approaches by excluding even the most qualified judicial candidates — is somehow a democratic approach. I don’t, but some may.
What most offends, though, is the implication of the words “Jewish” and “Judaism” in the titles of more than 20 of the campaigning organizations — because there is simply no way in any world of internal logic to assert, as has been done, that there exists some Jewish ideal called “a woman’s right to choose” to terminate a pregnancy.
Forbidden unless required
Abortion is expressly forbidden by Jewish religious law, or halacha. There are different opinions about the nature and gravity of the prohibition of killing of a fetus, but no accepted halachic authority views feticide as a matter of personal “choice.”
Like most forbidden acts, abortion can become permitted, even required, in certain circumstances. Such circumstances include when a continued pregnancy threatens the life of a Jewish mother-to-be. But that is hardly a reason for Jews to ignore their faith’s disapproval of abortion in general.
And so, what some Orthodox groups (like, prominently, Agudath Israel of America) promote is the regulation of abortion through laws that prohibit the unjustifiable killing of fetuses while protecting the right to abortion in exceptional cases. That not only most approximates Judaism’s stance, but also reflects the feelings of a majority of the American people.
Agudath Israel has never supported any legislation that would totally ban abortion, or that would provide a fetus the status of a born child — which could jeopardize the right to abortion in those rare cases where Judaism might require it.
Agudath Israel did, though, and does, support the Partial Birth Abortion Law, which was recently declared unconstitutional by a federal appeals court and may well end up before the highest court in the land.
What that law forbids is any overt act (most commonly, the piercing of the brain) intended to kill an infant whose “entire… head is outside the body of the mother, or, in the case of breech presentation, [when] any part of the fetal trunk past the navel is outside the body of the mother.”
Halacha would consider such a child fully born, and thus its killing is murder, forbidden even to save its mother’s life (although, as it happens, even the Partial Birth Abortion law includes an exception where the life of the mother is endangered).
When Jewish groups, blatantly or subtly, suggest that Roe is somehow consonant with the Jewish religious heritage, they sow misinformation. When they oppose measures like the Partial Birth Abortion Law, they abet infanticide.
Reality check: No seasoned, non-partisan observer of American politics and jurisprudence believes for a moment that abortion will be outlawed entirely by the Supreme Court, no matter who replaces Justice O’Connor (or, should he too retire soon, Chief Justice William Rehnquist).
No one should be propagating any such fears about Supreme Court nominees suspected of something less than a mindless embrace of Roe.
And no group professing to represent Jewish values should claim that Judaism and Roe make a harmonious pair. Roe’s legacy, abortion on demand, is a social ethic that devalues life. Judaism is a faith that cherishes life.
Jewish groups agitating for the application of a Roe-faithful litmus test to any Supreme Court candidates Bush presents would do well to contemplate the implication of the word “Jewish” or “Judaism” in their names — and the dire misrepresentation of the Jewish religious heritage they are placing before Americans, non-Jews and Jews alike.
Rabbi Avi Shafran is director of public affairs for Agudath Israel of America. This article is provided by Am Echad Resources.
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