top of page

Shavua Tov: The Pro-Death Supreme Court

Adapted from sermons Reb Jason delivered over the Sabbath of June 24 – 25. Reb Jason urges you to donate to the National Council of Jewish Women’s “Jewish Fund for Abortion Access”

In last week’s parasha, “Hashem spoke to Moses and Aaron saying, ad matai ha’edah hara’ah hazot? How much shall that wicked group mutter against Me?” The “wicked group” to which he refers is the 10 out of 12 spies who provided an “evil report.” What constitutes an “evil report?” Is it a lie?

Rabbi Menachem Mendl of Kotsk asks:

“Did the spies lie? Maybe their characterizations were incorrect, but very possibly they sincerely believed what they were saying? So how is it possible that they sinned? “But not everything that is not a lie is the truth. A person who is not a liar is not automatically a person of truth. Truth and faith are locked arm in arm. No person of faith acquires truth easily or with attention (only) to the superficial, but with toil, with effort, with wisdom and understanding. And the spies did not strain for truth of the word of God. They stood with their vision limited and contracted and false against God’s assurance, which is the absolute truth, and this was a great sin.”

Is it a lie if you actually believe it? Perhaps not, but it is a falsehood, and certainly not the truth. And a person of faith who swears fealty to the truth must always strain to find out what the whole truth is, and not take shortcuts – not say something they think is true without checking it out.

Now we have a certain Supreme Court decision on our minds, and I encourage you to read, as I did, the entire opinion of the majority, and the entire opinion of the dissent. We are told by Justice Alito that the majority of the Court is neutral on abortion. I’m sure they believe they are neutral, but that is not the truth. If they were neutral, they would have used neutral terminology to refer to the fetus, but they do not. If they were actually neutral, they would not have said there is no justification for Roe v. Wade. If they were neutral, they would not have said there is no right to an abortion whatsoever. If they were truly neutral, they would have talked about the strain that pregnant women go through in bringing their babies to term. They didn’t even mention it! They paid no attention to the possibility that there is a legitimate state interest in protecting the health of the mother. If they were truly neutral, they would not have eviscerated precedent upon precedent simply because they felt that Roe was wrong. This is not neutrality! This is not the truth!

If Justice Alito were straining to know the truth, he would not have told falsehoods like dilation and extraction being harmful to the mother. He would not have said, falsely, that a mother can just drop her child off and expect that child to find a suitable home. What an incredibly callous thing to say! What about that child? What’s going to happen to that child? Will they be adopted? What’s it like to be a crying baby abandoned by her mother and being picked up by a complete stranger? How can Alito possibly know that child will find a suitable home? He doesn’t bother to check it out.

So yes, in my opinion, Dobbs was an “evil report,” because it did not strain to arrive at the truth. There’s a Yiddish saying: A half-truth is a whole lie. Dobbs encapsulates this perfectly.

It is true that Jewish law frowns upon abortion. However, Rabbi Eliezer Waldenberg, z”l, has written a responsum that permits abortion in the first trimester in many cases, based on the risk to both the physical and psychological health of the pregnant person, and the rabbinic opinion that a fetus is initially considered “maya b’alma,” or “merely water.” Also, the rabbis are very clear that if the mother’s life is endangered, abortion is not only permitted but required, even if it entails what is now known as dilation and extraction. Jewish law does not consider life as beginning at conception. According to our Sages of blessed memory, a fetus is not a nefesh, i.e., a person, until it is crowning.

I do not take abortion lightly. I am not in favor of abortion. I think someone should think long and hard before they make such a decision. If someone were to come to this rabbi and ask for my blessing, I would have to consider all the factors spurring them to this decision before I provide it. I would not simply give them carte blanche to do so, for indeed we do consider a fetus to be potential life.

But never would I arrogate upon myself the power to impose my view of when life begins upon the country in which I live. We have a system of government different from Jewish law – a constitutional democracy. A democracy that believes in the separation of church and state. A democracy where one religion’s view of when life begins should not trump other religions’ views, or the views of those of different philosophies or of those of no religion.

We have to use a different benchmark, and that is the concept of liberty. That is, it is a violation of a woman’s liberty, in the former opinion of the Court for a woman to be forced by the state to bring her pregnancy to term. Every pregnancy is a potential threat to the mother’s health and life. A woman is fourteen times more likely to die in childbirth than from an abortion. In the state of Mississippi the risk of harm is 75 times greater! We have an intolerably high level of maternal mortality. We have an intolerably high level of child mortality. We have women who go through excruciating pain in bringing their child to term. And the idea that someone should force a woman to go through that kind of excruciating pain, enduring a threat to their health and perhaps even their life is deeply offensive to me and deeply offensive to Judaism.

I read the entirety of Justice Alito’s opinion, and the entirety of the dissent. Justice Alito paid absolutely no attention to the welfare of the woman, except when he briefly cites the attention the dissent pays to it. He doesn’t care if a woman dies. He doesn’t even mention it. He cites no scientific study. He cites not one statistic. He cherry-picks a bunch of precedents leading back to the 13th century, and would have us believe that the concept of liberty is frozen at the time the 14th Amendment was enacted in 1868.

Let me tell you what the men’s – and they all were men – concept of liberty was in 1868. Women were considered property of their husbands. Women were not allowed to vote. Schools were segregated. Until the 1970s a woman couldn’t even own a credit card without her husband’s permission. The American Medical Association supported the abortion ban in the late 19th century with rankly misogynistic language. It was illegal for an interracial couple to marry in 1868. It was illegal for some consenting adults to enjoy an intimate relationship in the privacy of their own home. Yet the Supreme Court subsequently legalized these activities on the basis of the 14th Amendment, even though it was abundantly clear that the framers of the 14th Amendment did not countenance the idea that women could be equal to men, did not countenance the idea that someone could love an unrelated fellow adult if it not conform to contemporaneous views of heteronormativity; did not countenance the idea that a Black person, such as Clarence Thomas, could marry a white person, such as Virginia Thomas.

Apparently Justice Alito has not read the 9th Amendment, which explicitly states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 9th Amendment explicitly vitiates originalism, which is a zombie doctrine created by jurists to justify whatever they feel like doing. They’re originalists when it suits them, and they’re activists when it doesn’t. The Heller decision in 2008, establishing an individual right to gun ownership, wasn’t originalism. It was brazen judicial activism. No court had ever established an individual right to own a firearm. The late Justice Scalia, the godfather of originalism, made it up out of whole cloth.

Justice Alito wrongly states “there is no constitutional right to abortion.” At this point he would find it acceptable for a state to outlaw abortion even if the life of the mother is in danger. He leaves it to Justice Kavanaugh to call for this exception to be enshrined, saying not a word about it himself.

And how do we decide whether the life of the mother is in danger? What is an acceptable level of danger? Shall we have the states and courts decide? And what about people who become involuntarily pregnant? Those who suffer from rape or incest? Shall we consign them to a miserable life having to raise a child who is a result of sexual abuse and criminal activity? Is this something we are willing to countenance?

One is struck by the cavalier way in which Alito uproots stare decisis – simply because he doesn’t like it. He says it was wrong, so we can overturn it. Well, in the dissent it makes it very clear that you have to have more than “I thought it was wrong.” There are precedents for when you do and when you do not overturn stare decisis. Justice Alito and his five fellow pro-death justices ignored ample precedent – no less than twenty Supreme Court decisions upholding a woman’s right to choose. He ignored our country’s first 75 years of history where abortion was basically permitted in most cases. He ignored our most recent 50 years of history. He ignored the will of the vast majority of Americans who do not want Roe v. Wade overturned. He literally lied about dilation and extraction, saying it’s harmful to women, when in fact the complication rate is infinitesimally low. And several Justices lied to Congress, saying that the right to abortion was settled law, yet they quickly overturned it.

Justice Alito would have us believe his ruling only applies to abortion. He says ‘we’re not going after any other rights.’ But guess what: Justice Thomas said, ‘yes we are.’ He said in his concurring opinion, ‘we’re going after Griswold,’ which means contraception could become illegal. ‘We’re going after Obergefell, which means that same sex marriage could be out the window. ‘We’re going after Lawrence,’ which means any same sex activity could be illegal.

This is not a pro-life Court. This is a pro-death Court! And make no mistake. It offends me. It offends my Jewish values and it should offend all of us. And let me tell you something: I will be out in the streets. I will be protesting. I will fight back until this fundamental right for a woman to control what happens to her own body is restored. We should all be doing the same thing.

Our country needs to stand for truth, for honesty, for liberty. Justice Alito said, ‘well, there are different definitions of what liberty is, so let’s just remove liberty.’ Well, we’re not really sure when viability is, so let’s remove it and replace it with the point of conception.

Where would we stop? Loving v. Virginia, which would outlaw Clarence and Virginia Thomas’s marriage? How do we understand Alito’s opinion, and Thomas’s the day before that, which overturned a 110 year old state law regulating concealed carry of firearms? Banning abortion is associated with a 20% increase in maternal mortality. Among Black women, 20% of whom live beneath the poverty line, and who comprise 38% of all abortions performed, the rate of maternal mortality is three times the rate of whites, In the ten years prior to Roe, over 10,000 women died trying to get an illegal abortion, in addition to the untold number of women who died in childbirth. Those states that restrict abortions have the highest rates of infant mortality and the highest rates of maternal mortality. Once the kid’s born, God help the mother, and God help the child, because the state’s not going to do bupkis for them. So how many more people have to die? 10,000 more? 20,000 more? And because of Thomas’s unhinged opinion regarding concealed carry, numerous additional people will needlessly die.

This is a very dark day. This decision will go down as one of the four worst Supreme Court decisions in history, Right up there with Dred Scott, Korematsu and Plessy v. Furguson. Unlike the majority opinion, the dissent is cogent, steeped in science, tradition and statistics, and also talks about the real harm that will be caused to real people. Dobbs, on the other hand, is a rambling, ideological screed.

Justice Alito, Supreme Court. Get. Out. Of. Women’s. Wombs! You seem to be fine with carrying around guns that kill people, privileging the torch of liberty over life. But when it comes to the most intimate area of life, you just want to reach right in there and turn this country into “The Handmaid’s Tale.” I’m not going to stand here and let it happen, and neither should any of us.


Recent Posts

See All

The most common device people use to get to know each other is to ask the ubiquitous question: “What do you do?” As in, for a living. Not “what do you do for fun,” or “what do you do to stave off feel

This past Shabbat we learned of the mythic origin for the Israelite name. The patriarch Jacob wrestled all night with a mysterious man – whom he likely considered an angel. The man demanded Jacob let

bottom of page