Depending on circumstance, Halakha regards prospective abortions as permissible or not, advisable, or even required. Halakha takes a balanced view, as it weighs many considerations in play. As an American and a Jew, I have found proper the latitude American law has – from Roe until now – given Americans to approach abortion from their own ethical orientations, whether informed by a faith tradition or not.
The Supreme Court’s decision in Dobbs is unsettling. When the Court ruled in 1973 for a right to abortion, it affirmed that American liberty includes the integrity of our private lives. The dignity of self in the American context requires freedom from governmental interference in matters as personal and consequential as pregnancy. The Court had previously ruled similarly regarding “interracial” marriage, and contraception, and later regarding intimate sexual conduct and same sex marriage.
I remember being with a former boyfriend in the late 90s. While laws against same-sex relations stood in many states, in New York City where we lived, we were an unremarkable and legal couple. I wept with relief when, in 2003, I read Justice Kennedy’s majority opinion in the Lawrence v. Texas case. I hadn’t quite realized how the contested legal status of same-sex relations, with its weight of moral opprobrium, had shamed me. Justice Kennedy’s decision finally conferred on gay men the essential dignity that had been denied in the law. I felt still greater relief when the Conservative Movement’s Halakhic leadership affirmed in 2006 that the Torah’s own mitzvah to protect human dignity requires the normalization of same-sex relationships. The Obergefell decision on marriage equality in 2015 was a triumph for this line of legal interpretation. It was most gratifying to see Halakhic and American jurisprudence tracking one another.
Justice Alito’s decision in the Dobbs case argues that the legal reasoning in Roe was flawed: that there is no right to abortion as there is no constitutional right to privacy. He claims that their ruling does not bear on other privacy rights, but in their thundering dissent Justices Breyer, Sotomayor, and Kagan call this claim disingenuous. In his concurrence, Justice Thomas’ argues that the Court should “eliminate” the substantive due process interpretation which established these rights “at the earliest opportunity.”
To be sure, the justices in the majority have their arguments. And while I think Americans are now less free and newly oppressed, I don’t find it fair or useful to say that that was the majority’s conscious goal. Justice Thomas’ dissent to the earlier Lawrence decision, though, is instructive. He maintains there that he bears no animus toward gay people and regards laws policing private sexual acts among consenting adults to be bad laws. Yet he argues that proper interpretation of the Constitution ties his hands; there is no Constitutional right to privacy.
But the originalism he and other justices espouse is a choice. What is legal is not always right. What I know as a rabbi is that law cannot be decided independently of its application in real life. When the courts have found a way to secure the liberty and dignity of people in society, that path, that precedent, should be maintained. I fear for what’s coming, as a gay man, as an American, and as a Jew. An ideologically extreme legal theory, significantly informed by a particular religious perspective, now dominates the court. My own freedoms as a gay man, and the legal latitude I require as a rabbi to guide others in living their lives with full dignity as Jewish Americans, may now be threatened. I think we all have reason to be concerned.
Rabbi Joel Alter has led Congregation Beth Israel Ner Tamid, Glendale, since 2018. Dobbs v. Jackson Women’s Health Organization, decided last month by the U.S. Supreme Court, holds that there is no Constitutional right to abortion. It overruled the 1973 Roe v. Wade ruling and returns the legality of abortion to the states.