The Supreme Court’s overturning of the 1973 Roe v Wade ruling has exposed the gulf between Republican red states and Democrat blue, between America’s Orthodox and non-Orthodox Jews – and, one way or another, between America’s Jews and their fellow Americans.
Agudath Israel, which calls itself “the arm and voice of American Orthodox Jewry”, acclaims the ruling as “this historic development”. The Agudah says that its opposition is “informed by the teaching of Jewish law that foetal life is entitled to significant protection, with termination of pregnancy authorised only under certain extraordinary circumstances”. Abortion on demand, the Agudah says, “promotes a social ethic that devalues life”.
If this is representative of the Orthodox minority – about 10 per cent of adult Jewish Americans – it places it firmly in the Republican camp.
Thirteen Republican-controlled states already had “trigger laws” on their books, and another 13 are expected to join them in restricting abortion to various degrees.
The degree already varies from state to state, and the legal outcomes are still uncertain. For this reason, the Union of Orthodox Jewish Congregations found itself “unable to either mourn or celebrate” the ruling.
Liberal Jewish organisations, the Anti-Defamation League (ADL) among them, uniformly condemned the ruling. This places them in the blue corner. But most of the Jewish organisations avoided the hard part: specifying what they think the law should be. “Abortion access is a Jewish value,” said the left-wing activist group Bend the Arc. Agudath Israel would agree with that, but not much else.
The ADL accused the Court of overturning “constitutional protection for an individual’s right to determine whether to terminate a pregnancy or bear a child”, but did not venture an opinion on when in a pregnancy termination might become immoral or illegal. The Women’s Rabbinic Network, however, seemed to endorse abortion at any point in pregnancy, which is permitted in six Democratic-run states and the District of Columbia: “The Torah, the Mishnah, and the Talmud – Judaism’s most sacred and authoritative texts – do not view a foetus as a soul until it is born. Rather, a foetus is considered part of the parent’s body until delivery.”
This is the mirror-image of the Catholic reasoning that “personhood” begins at conception. The non-Orthodox majority of Jews align with the left wing of the Democrats on abortion – not a comfortable “space” in which to be Jewish these days.
A majority of the American public does not support either of these extreme positions. But it seems that a majority of Jewish Americans do. The 2014 Pew Research “Religious Landscape” survey reported that 83 per cent of Jewish Americans think abortion should be legal “in all/most cases”.
Jews are by far the most liberal group in America. In the general population, about 60 per cent want abortion to be legal in all states. But the forward slash in “all/most” may make Jews seem more liberal than they are. A clear majority of Americans also think that Roe v Wade was too generous.
A 2019 poll shows that 60 per cent supports abortion in the first trimester, but only 28 per cent supports second-trimester abortion, which Roe v Wade permitted. As far as I can tell, no one has yet polled Jews on this question.
Two of the three dissenters in the Court’s 6-3 ruling are Jewish liberals who were nominated by Democratic presidents. Elena Kagan was nominated by Barack Obama.
Stephen Breyer, who recently announced his retirement, was nominated by Bill Clinton. Five of the Court’s six Catholics, meanwhile, were chosen by Republican presidents. Three by Donald Trump, a lifelong libertine who became anti-abortion when he ran for the Republican nomination.
In a sense, a third liberal Jewish vote was involved in this ruling. In 2014, Obama pleaded with Ruth Bader Ginsburg to retire, so that he could appoint a younger liberal Justice. Ginsburg refused: perhaps she too expected Hillary Clinton to win in 2016.
Affectionately dubbed “The Notorious RBG” by her fans, Ginsburg died in 2020, when Trump’s presidency had four months to go. Trump nominated Amy Coney Barrett, a Catholic conservative. Right now, in 2022, the political consequences of RBG’s delayed retirement are incalculable.
Dominic Green is a British historian based in Boston
