Supreme Court decisions usually are considered final, but Jewish groups that favor abortion rights are taking this week’s ruling upholding a ban on late-term abortions to lawmakers.
The groups, which consider the April 18 ruling a rollback of the landmark 1973 Roe v. Wade decision that upheld abortion as a matter of privacy and a woman’s choice, say they will now go to state legislatures and to Congress, and ultimately make it a matter for the 2008 presidential elections.
“This isn’t going to go away,” said Phyllis Snyder, president of the National Council of Jewish Women, perhaps the most vocal group advocating for reproductive rights. “This is the beginning of a new fight now.”
Justice Anthony Kennedy wrote in his majority ruling that those opposing a 2003 U.S. law banning late-term abortions “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.”
Kennedy said other procedures are available to women whose lives are threatened by their pregnancies.
Reaction from Jewish groups was swift.
The decision’s “disregard for the rights of the so-called ‘fraction’ of women who, for a range of reasons, including the preservation of their own lives, need specific reproductive health services, is heartless and insensitive,” the Reform movement’s Religious Action Center said.
Hadassah: The Women’s Zionist Organization of America said the court “inappropriately inserted itself into the personal lives of American women.”
The minority decision in the 5-4 ruling, written by Justice Ruth Bader Ginsburg, who is Jewish, said the majority decision “chips away” at women’s rights.
Ginsburg wrote that the ruling “recalls ancient notions about women’s place in society and under the Constitution ideas that have long since been discredited.”
Supporters of the law say “health exceptions” are murky and note that the bill includes an exception when! birth w ould threaten a woman’s life. Opponents counter that women in such dangers may obtain the abortion only through a legal challenge, a process they say is burdensome.
Among Jewish groups, only the fervently Orthodox Agudath Israel of America praised the decision.
“At a time when social and cultural trends tend to undervalue human life, laws that prohibit the killing of partially delivered fetuses serve as a vital reminder of the enormity of the moral issues surrounding the taking of human life,” Agudah said.
Other groups expressing disappointment in the decision included the Anti-Defamation League and the Jewish Council for Public Affairs, the umbrella body for Jewish community relations councils across the country.
“We hope Congress will act to reverse the unfortunate legislation that triggered this decision,” JCPA Chairwoman Lois Frank said.
The Orthodox Union, the modern Orthodox umbrella body, had no comment. In the past it has said that decisions on abortion including late-term abortion, a method that conservative groups call “partial-birth abortion” should be left to the mother, her doctor and her cleric.
Jewish religious law considers the mother’s health paramount, and Jewish activists even the conservative traditionally have sought to write protections for women into abortion legislation.
This was a case where halacha, or Jewish law, and justice should coincide, said Susan Weidman Schneider, editor of Lilith, a Jewish feminist magazine, “and it certainly doesn’t with this Supreme Court decision.”
“There is a sense I have that Jewish women have not been on the ramparts as much as they used to be,” she said. “The question is why and what do we do now” that can help mitigate this decision.
Dr. Paul Blumenthal, a professor of obstetrics at Stanford University, said the decision undermined the physician-patient relationship.
“It means that women are no longer going to get the best possible care from physicians because a lot of clinical decision-making is taken out of our hands,” he said.
The immediate political focus, Snyder said, would be on a Democratic effort in the U.S. Congress to codify the Roe v. Wade findings into law. Lead sponsors for the Freedom of Choice Act in both houses are Jewish: Sen. Barbara Boxer (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.)
“NCJW will certainly rev itself up and be working” on the act, Snyder said. The probability of a presidential veto would be less important than the fact that passing the act “puts Congress on record in support of the right to choose.”
The fight will be defined in part by where anti-abortion groups empowered by the decision take their reinvigorated efforts to end abortion
“It’s likely two-fold, both at the state level and in Washington on Capitol Hill,” said Jeff Sinensky, general counsel for the American Jewish Committee. “We’re sure to see efforts around the country to introduce anti-abortion legislation.”
The AJCommittee, which filed an amicus brief in the case, expressed its “disappointment” with the ruling.
“AJC opposes governmental interference in a woman’s ability to choose the safest medical procedures that best protect her ability to bear children in the future,” the group said.
Sinensky said the decision would ultimately play out in the 2008 elections.
“Obviously it pushes the issue of abortion rights into the presidential campaign as a major issue,” he said.
Snyder said NCJW would maintain its aggressive posture regarding the makeup of the Supreme Court.
“We’ll be watching upcoming judicial nominations,” she said.
NCJW was nearly alone among activist groups in aggressively campaigning against! Preside nt Bush’s two successful court nominees, John Roberts and Samuel Alito. The pair tipped the balance since 2000, when the court last considered a late-term ban and rejected it.
“This ruling underscores once again that the composition of the Supreme Court matters,” the NCJW statement said. “Who serves on the court has a direct bearing on our ability to exercise our constitutional rights, including reproductive freedom.”
It’s a message Hadassah was coming around to, said Shelley Klein, the organization’s director of advocacy.
“It’s strikingly clear that the Supreme Court and the federal court system are no longer the bulwark of rights we hoped it would be,” she said. “If federal courts do not protect rights, then it comes back to legislatures. It makes Congress more significant, states more significant.”
(JTA Washington Bureau Chief Ron Kampeas contributed to this story.)