Posted to B’nai Jeshurun YouTube channel, May 23, 2022

Before Roe v. Wade was overturned, veteran Supreme Court watcher Dahlia Lithwick warned that the “fear of overzealous prosecutors” would set the tone of debate over the rights of women under strict abortion bans in “post-Roe America.”

Speaking a month before Dobbs v. Jackson Women’s Health Organization was handed down June 24, she also predicted such bans would raise knotty questions of halakhah, a body of religious law that Wikipedia (my go-to source for questions of religion, theology and just about everything else) defines like this:

[…] the collective body of Jewish religious laws which is derived from the written and Oral Torah. Halakha is based on biblical commandments (mitzvot), subsequent Talmudic and rabbinic laws, and the customs and traditions which were compiled in the many books such as the Shulchan AruchHalakha is often translated as “Jewish law”, although a more literal translation of it might be “the way to behave” or “the way of walking”. The word is derived from the root which means “to behave” (also “to go” or “to walk”). Halakha not only guides religious practices and beliefs, it also guides numerous aspects of day-to-day life. [Links in the original.]

Now that we’re just short of a month into post-Roe America, I’m afraid we’re getting a taste of what Lithwick predicted. To wit:

  • Indiana’s state attorney general announced on Fox News he’s investigating an Indianapolis ob gyn who performed a therapeutic abortion on a 10-year-old girl from Ohio for possible criminal violations. Her lawyer has sent the AG a cease-and-desist letter.
  • A Florida rabbi is challenging Florida’s recently enacted 15-week abortion ban on grounds that it violates the right of members of his Reform Jewish congregation to practice their religion under the free exercise clause of the First Amendment.

“It’s the height of chutzpah for people to tell the Jewish people what the Bible means and lecture the Jewish people on the sanctity of life,” said Barry Silver of Congregation L’Dor Va-Dor in Palm Beach County.

(Wikipedia notes, by the way, that chutzpah comes from a Hebrew word for insolent behavior; it has “a strongly negative connotation” in Yiddish; and it has none of the positive connotations it has acquired in popular culture. We may be quite sure that Silver is using the word in its original sense here.)

A former state legislator who likes to call himself a “Rabbi Rouser,” Silver has a flair for provocative sound bites. But he raises substantive issues in the lawsuit, including these:

  • “For Jews, all life is precious and thus the decision to bring new life into the world is not taken lightly or determined by state fiat. In Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act. As such, the Act prohibits Jewish women from practicing their faith free of government intrusion and thus violates their privacy rights and religious freedom”; and
  • “The most important institution in Jewish life is the family, which has withstood centuries of persecution and discrimination by clinging to values and ideals which are quintessential to the Jewish faith. By preventing Jews from making intimate, personal decisions about the size of their families, or when and under what circumstances to bring new life into the world, the Act not only threatens the lives, equality and dignity of Jewish women, the Act also threatens the integrity of the Jewish family and denies religious freedom to Jewish women and their families.”

Silver has been joined in litigation by a retired Unitarian Universalist minister and a Buddhist counselor from South Florida. While Jews are no more unanimous than Christians are on the issue of abortion, and some Orthodox Jews in fact welcomed Dobbs, NBC News noted a significant number of Jewish organizations oppose strict bans:

In statements following the release of Dobbs v. Jackson Women’s Health Organization, the ruling that overruled Roe, organizations such as the American Jewish Committeethe Anti-Defamation LeagueHillel International and the Women’s Rabbinic Network expressed deep anguish.

“In this moment, our feelings are best embodied by Numbers 11:10: ‘God became exceedingly angry; and Moses despaired.’ … We stand with generations of Jewish scholars who state clearly and unequivocally that abortion access is a Jewish value.” the Women’s Rabbinic Network said. [Links in the original.]

I would only add that the social teaching of my Christian church, the Evangelical Lutheran Church in America, has a similarly nuanced position on the legality of abortion, upholding the sanctity of life but also affirming the moral agency, i.e. the right to make moral and ethical decisions, of women, their families, their doctors and their pastors. The United Church of Christ, among other mainline Protestant denominations, has a similar policy.

A a legal analyst for Slate magazine who hosts the podcast Amicus, Dahlia Lithwick, has covered the Supreme Court for 20 years. She is Jewish and keeps kosher, which I think gives her a needed perspective on these issues. Her predictions for “post-Roe America” came in May during a live-streamed “conversation” with members of B’nai Jeshurun, an independenr synagogue and “virtual shul” (the word for a synagogue or school in Yiddish) on the Upper West Side of Manhattan. It lasted nearly an hour, and it was wide-ranging — as my rough notes from watching it indicate:

  • 2:00 — religious claims — beginning of life, fetal personhood
  • 5:00 — state authority, laws regarding “aiding and abetting”
  • 7:40 — empathy
  • 8:00 — how the 14th Amendment conferred liberty, dignity, etc., in the wake of chattel slavery
  • 15:50-18:00 (or so) — separation of church and state, “huge, huge, huge” religious claims by (@ 17:00)
  • 21:00 — chilling effect of fetal homicide laws on physicians — “If you have physicians who are chilled because of fear of overzealous prosecutors […]”
  • 32:00-38:00 — detailed discussion of halakha.

(Like some of the links below, my notes are copied here for future reference.)

While Jews, like the adherents of other religions, have varying beliefs on the subject, a “majority of foundational Jewish texts assert that a fetus does not attain the status of personhood until birth” and 83 percent of American Jews believe abortion “should be legal in all or most cases.” (A useful faith-by-faith survey of world faith traditions appeared in The Conversation the day Dobbs was handed down.)

B’nai Jeshurun’s reaction was immediate and unequivocal. In a statement posted to its website on June 24, rabbis J. Rolando Matalon, Felicia L. Sol and Rebecca Weintraub framed the issue in stark terms:

For us, today is a sad and infuriating day in America. With the overturning of Roe v. Wade, the landmark 1973 ruling on reproductive rights, those in need of abortion care have been robbed of their right to choose and have agency over their own body; the basic core rights of life, liberty, and the pursuit of happiness have been rolled back.

The rabbis also made it abundantly clear the Supreme Court violated their rights under the free exercise clause:

And as Jews, this development should make us deeply concerned for our own ability to assert our religious freedom in our country. At the core of the Jewish tradition is the affirmation of the sanctity of life. Further, the tradition recognizes that (1) life does not begin at conception, (2) that the well being (spiritual, emotional, and physical) of the parent takes precedence over an unborn fetus, and (3) that abortion is a legitimate choice. Therefore, with the overturning of Roe v. Wade, our religious freedom is being compromised.

Dahlia Lithwick, who tends to speak in fully rounded, grammatically complete sentences, made one further prediction that I believe stands out in all the debate about abortion and the restrictions likely to come now.

“If we think it’s going to happen to other people in other parts of the country, I think we’re just deceiving ourselves about how much it will inflect on all of us,” she said about seven minutes into the B’nai Jerushan video. “But I think that the thing that has to happen in this conversation, is a huge reserve of empathy and compassion.”

Cites, Links and Further Reading

Daniel Arkin, “Unitarian and Buddhist ministers are joining a rabbi’s legal fight against Florida’s new abortion law,” NBC News, July 13, 2022

Kathleen Delaney, “Doctor in 10-year-old’s abortion case to sue Indiana AG for defamation,” interview, CNN, July 20, 2022

Elizabeth A. Eaton, “Bishop Eaton issues pastoral message on SCOTUS ruling regarding Roe v. Wade,” ELCA News, June 24, 2022

Evangelical Lutheran Church in America, “Social Statement on Abortion,” Aug. 28-Sept. 4, 1991, Department for Studies of the Commission for Church in Society, ELCA

Generation to Generation Inc. dba Congregation L’Dor Va-Dor v. Florida, 2nd Circuit Court for Leon County, Fla., June 10, 2022

Kalpana Jain, “America’s religious communities are divided over the issue of abortion: 5 essential reads,” The Conversation, June 24, 2022

Dahlia Lithwick, “The Leak, the Law, and Post-Roe America with Dahlia Lithwick,” B’nai Jeshurun, New York, New York [posted to YouTube, May 23, 2022]

J. Rolando Matalon, Felicia L. Sol and Rebecca Weintraub, “Our Response to the Overturning of Roe v. Wade,” June 24, 2022, B’nai Jeshurun, New York, New York

Office of the Indiana Attorney General, “Attorney General Todd Rokita issues statement regarding Dr. Caitlin Bernard case,” State of Indiana, July 14, 2022

Avi Shafrun, “Abortion is not a ‘Jewish value’ for all Jews,” Religion News Service, July 13, 2022

Wikipedia pages on B’nai Jeshrun (Manhattan), chutzpah, halakha, Dahlia Lithwick and shul.

[Revised and published July 20, 2022]

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