Christian conservatives and Orthodox Jewish groups tend to line up when it comes to religious liberty issues addressed by the United States Supreme Court. But, last week’s leaked draft implying that the Supreme Court intends to overturn Roe v. Wade brings into the spotlight one of the striking differences between the groups. It’s also one of the rare issues in which Judaism’s three major denominations are not exceptionally divided.
On the evening of May 2, Politico reported on a leaked draft of a Court decision in Dobbs v. Jackson which, if enacted, would overturn Roe v. Wade, the 1973 landmark decision that said the Constitution gives women the right to choose whether to have an abortion.
While Christian conservatives, who believe life begins at conception, have advocated for anti-abortion rights in the US for decades and pushed for the Supreme Court to overturn Roe v. Wade, ending federal protection of abortion, American Jewish leaders across the spectrum say Judaism’s traditions and texts create a broad consensus across denominations on women’s reproductive rights. Nearly every interpretation states that abortion is permitted in cases when continuing the pregnancy poses a threat to the life of the mother. But, there is disagreement over just what constitutes a threat.
Overall, Jews are the most in favor of abortion rights of any US religious group. A 2014 Pew Research poll found that 83% of American Jews believe that abortion should be legal in all or most cases.
The Jewish Electorate Institute’s 2022 National Survey of Jewish voters found that 38% of Orthodox Jews said they were concerned that the Supreme Court would overturn Roe, compared to 70% of Conservative Jews, 81% of Reform Jews and 80% of those who identified with no denomination. Overall, 75% of Jews expressed concern.
For Republican Jews, the issue is a point of dispute. The 2014 Pew study found that 67% of Jewish Republicans and 58% of Jews who identified as politically conservative believe abortion should be legal.
The Reform and Conservative movements, whose members vote more than 70% Democrat according to most surveys, released statements denouncing the overturn of Roe v. Wade immediately following the leak.
The Rabbinical Assembly (RA), the association of Conservative rabbis, said they were “deeply troubled by reports that the Supreme Court will soon nullify the constitutional right to abortion.”
“Reproductive freedom is again under assault, this time from the highest court in our nation,” the statement said. “The RA supports full access for all those who need abortions to the entire spectrum of reproductive healthcare and opposes all efforts by governmental, private entities, or individuals to limit or dismantle such access.
“The Committee on Jewish Law and Standards of the Rabbinical Assembly has affirmed the right of a pregnant person to choose an abortion in cases where ‘continuation of a pregnancy might cause severe physical or psychological harm or where the fetus is judged by competent medical opinion as severely defective.’ This position is based on our members’ understanding of relevant biblical and rabbinic sources, as well as teshuvot – modern rabbinic responsa. Jewish tradition cherishes the sanctity of life, including the potential of life during pregnancy, but does not believe that personhood and human rights begin with conception, but rather with birth, as indicated by Exodus 21:22-23.”
“Denying individuals access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices, and abortions, among others, on religious grounds, deprives those who need medical care of their Constitutional right to religious freedom. The RA has consistently supported these reproductive freedoms for over 50 years.”
“There continue to be efforts in the United States on both the federal and state levels that pose existential threats to reproductive freedom, especially so-called ‘heartbeat’ bills. The Rabbinical Assembly emphatically opposes all such laws and legislative or executive moves. As the focus of the debate shifts to the US Congress, we call on our members to contact their senators and representatives and demand they advocate for these fundamental rights in each and every state.”
Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism, the Washington office of the Union for Reform Judaism, condemned the possible overturn, as well.
“This draft ruling upholding Mississippi’s 15-week ban would be an unconscionable rollback of fundamental rights and human dignity for all people in the United States,” Pesner said. “Abortion bans like Mississippi’s that are being introduced and signed into law across the country are already rooted in anti-Black racism, white supremacy and other systems of oppression. This decision would not only decimate abortion access, but also explicitly threaten other fundamental rights we hold dear, including the LGBTQ+ rights affirmed by Lawrence v. Texas and Obergefell v. Hodges.”
Orthodox Jews tend to be socially conservative, but on the leaked opinion, authored by right-wing Justice Samuel Alito and joined by four Catholic and conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the movement has not taken an official stance.
In a May 3 statement, the Orthodox Union said they are “unable to either mourn or celebrate the news reports of the US Supreme Court’s likely overturning of Roe v. Wade.”
“We cannot support absolute bans on abortion – at any time point in a pregnancy – that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that permits abortion on demand – at any time point in a pregnancy – and does not confine abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.”
Abba Cohen, Agudath Israel of America’s Washington representative, told The Jerusalem Post that that haredi (ultra-Orthodox) group was also not yet taking a stand on the leaked opinion.
“At the present time, Agudath Israel of America has no comment or can finalize no specific advocacy action in response to the purported Dobbs [v. Jackson] decision,” he told the Post. “It is merely a draft and may not at all represent the Supreme Court’s final ruling or its language.
“While Agudath Israel is closely monitoring this important – if irregular – development, the Jewish perspective on abortion is nuanced. Thus, we would have to review the precise nuances of the final decision itself – how, for example, it treats abortion rights when the ‘mother’s life or health is endangered or when the mother’s sincerely-held religious beliefs allow or require’ her to seek an abortion. We would also have to carefully examine state statutes and prospective legislation on these matters. Only then can we responsibly determine the true impact of the Dobbs decision and future steps we might deem necessary,” Cohen continued.
Nathan Lewin, an Orthodox Washington attorney who has argued 28 cases before the Supreme Court, remains skeptical that the leaked opinion will even be reflective of the Supreme Court’s actual decision.
“This is a first draft, first written in February,” Lewin told the Post. “At this point there could be a second, third, fourth, draft. So, it is not necessarily reflective of what the Supreme Court will be doing.”
But, if Roe is indeed overruled, Lewin said Jewish religious liberty would not be violated.
“I do not think the decision of the court on Roe v. Wade is a Jewish religious liberty issue,” he said. “The overrule would simply mean that local laws control abortion. If in fact a Jewish mother has a situation where under Jewish law she should get an abortion, then she could go to a state where the abortion could be confirmed. If she can’t afford to travel, then there might be a religious liberty issue, if the state prohibited it, but that’s such a remote possibility that I don’t think it’s even realistic.”
He also assured that the overrule of Roe v. Wade would not throw other major constitutional liberties into question, such as gay marriage or contraception.
“It’s pretty clear if you look at the opinion Alito wrote, that even those who take the most extreme views on Roe v. Wade, make it clear that the opinion is limited to abortion. It clearly says this does not affect any other issues that have been raised in other circumstances.”
Lewin recalled during his clerking days more than 50 years ago, a fellow law clerk accidentally left a draft on a Coke machine. It was retrieved before becoming available to the public. The type of leak that occurred last week, he said, is unprecedented and if the leaker is a law clerk, it is grounds for lifetime disqualification.
“It’s an outrageous breach,” Lewin continued. “Anyone who would do this cannot be trusted to practice law. The notion of confidentially within Court debates is essential. There’s a major lesson to be learned in this case.”