When American Jews talk about the future of the U.S. Supreme Court, the discussion usually turns to the issue of abortion rights. Nearly 33 years after the high court legalized abortion, the subject remains one of the most divisive in the country, and one of the most important to countless American Jewish activists.
Many who are watching the Supreme Court nomination fight this year are thinking about the effect conservative justices, including the newly installed Chief Justice John Roberts and nominee Judge Samuel Alito, will have on reproductive rights.
It remains unclear whether the legal right to an abortion will be debated in the Supreme Court in the near future. But the court is expected to weigh in on numerous cases involving access to abortion, including two that will be heard Nov. 30.
Jewish activists and leaders have been central to the pro-choice movement for decades, working both in Jewish organizations that support abortion rights and in various other public policy groups. Since Jewish law mandates that a pregnancy must be ended in cases where it is necessary to protect the mother’s health, pro-choice groups have often sought out Jews to bring a religious perspective to their cause.
But while all religious streams agree on the Jewish view of abortion, they differ on how to translate it into public policy.
These differences, in turn, are reflected in the larger question of how much to get involved in the debate over supreme court nominees.
Many liberal Jews, believing decisions about abortion are personal, fight for greater access to abortion for those who choose it.
Orthodox groups believe abortion should remain legal, but only used in cases of protecting a woman’s health.
Liberal Jewish groups say that outlawing abortion would strip Jews of their right to follow their religion.
They use this as one counterargument to the religious statements against abortion by conservative activists.
“If a faith group believes in full conscience that a fetus is a person, than they shouldn’t have an abortion,” said Rabbi Bonnie Margulis, director of clergy programming for the Religious Coalition for Reproductive Choice. “What we are against is not allowing us to make that choice.”
The Religious Coalition, with nine Jewish signatories, used Jewish law as an argument in an amicus brief in one of the cases to be heard by the Supreme Court next week.
The case, Ayotte v. Planned Parenthood of Northern New England, challenges a New Hampshire law requiring parental notification for women under 18 to receive an abortion.
The Religious Coalition’s brief specifically cites policies of the United Synagogue of Conservative Judaism, noting “Judaism chooses and requires abortion as an act which affirms and protects the life, well being and health of the mother.”
It also says that “to deny a Jewish woman and her family the ability to obtain a safe, legal abortion when so mandated by Jewish tradition, is to deprive them of their fundamental right to religious freedom.”
The second case to be heard on Nov. 30, Scheidler v. National Organization for Women, involves the free speech rights of abortion opponents. Lower courts have found that anti-abortion groups that use violence or threats are violating the Racketeer Influenced and Corrupt Organizations Act.
But for liberal Jews, the argument for abortion rights goes beyond the religious realm.
“Everyone feels that abortion should be rare and it should be safe and it should be accessible,” said Phyllis Snyder, president of the National Council of Jewish Women. “The decisions of when a woman should have an abortion should be based on the circumstances and in consultation with her doctor.”
The Orthodox Union has largely stayed out of the abortion-rights debate. The fervently Orthodox Agudath Israel of America has spoken out against the increased access to abortion, while believing it should be legal in cases of a mother’s health.
“At least let there should be a message that abortion is not like choosing a brand of toothpaste,” said Rabbi Avi Shafran, Agudah’s director of public affairs. “The law is a teacher, and we believe it is currently teaching that fetal life is worthless. Judaism teaches that while fetal life is not equivalent to born life, it has worth.”
But at the same time, Shafran said he believes abortion should remain legal, but only used as a last resort. He said he believes his position is in line with most Americans. Orthodox groups have not weighed in on the Ayotte case.
For many Jews, the abortion-rights cases now before the Supreme Court point to the larger issue of the future of the court.
Both the National Council and Union for Reform Judaism have announced their opposition to Alito, largely on his record on abortion rights. Alito wrote in a job application that he believed “the Constitution does not protect a right to an abortion.”
Agudath Israel is expected to announce its support for Alito in upcoming weeks, JTA has learned.
Many other Jewish groups that back reproductive rights have not weighed in on Alito.
Those organizations say they have chosen not to enter the political fray of presidential confirmations.
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