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Why Roe v. Wade must stand

An anguished plea for choice and moral autonomy. Before it is too late.

Nikki Tran of Washington, D.C., holds up a sign with pictures of Supreme Court Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Amy Coney Barrett and Neil Gorsuch, as demonstrators protest outside of the U.S. Supreme Court, May 3, 2022, in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday. Whatever the outcome, the Politico report represents an extremely rare breach of the court's secretive deliberation process, and on a case of surpassing importance. (AP Photo/Jacquelyn Martin)

(RNS) — This week, America woke up to the news that Roe v. Wade is in serious trouble.

The Supreme Court confirmed the authenticity of a leaked draft ruling overturning the Roe v. Wade decision establishing a constitutional right to abortion, but stressed that it was not final.

To quote The New York Times:

The constitutional right to abortion first established by the court in 1973 will be negated and it will be left to the states to decide whether the procedure should be legal in their jurisdictions or not, resulting in a patchwork of different laws across the country unless Congress steps in and sets a single national policy again.

And, potentially, not only abortion. As President Joe Biden said today:  “If this decision holds, it’s really quite a radical decision. It basically says all the decisions related to your private life, who you marry, whether or not you decide to conceive a child or not, whether or not you can have an abortion, a range of other decisions,” could now be in question.

I am screaming — both inwardly, and outwardly.

I, and the vast majority of Americans, do not want to return to the America of the pre-Roe v. Wade era.

I, and the vast majority of Americans, do not want to return to the America of furtive abortions in back alleys, in which unscrupulous doctors cynically toyed with the bodies and lives of women.

As I have done for my entire career, I stand up for the reproductive freedom of women.

There live a triad of sensitivities and sensibilities within me.

A sensitivity for the moral autonomy of women about what happens to their bodies

I stand up for the power and the necessity of choice. I do so out of a profound understanding of the difficulty of this choice. I reject anyone’s ability — outside of a tight circle of concern and care — to be part of a decision about the most intimate places of another person’s body.

A sensitivity and admiration for the classic Jewish position on abortion

Judaism believes there are times when abortion is permitted and even warranted. (This is an amazing resource from the National Council of Jewish Women on this issue.)

First, when the physical or psychological health of the mother is in danger. Jewish law recognizes the case of the rodef, the one who pursues another in order to do harm. If the pregnancy will cause harm to the mother, then it is as if the fetus is pursuing the mother in order to harm her.

Here, Jewish law is very clear. A rodef (pursuer) can be killed, even if it intends no harm. Maimonides, in his classic code of Jewish law, the Mishnah Torah, states there can be no rachmanut, no compassion, for a rodef.

So, if the fetus is endangering the life of the mother, then, tragic though the choice will be, abortion is indicated.

That is about the mother’s physical health.

What about the mother’s mental health? The late contemporary Orthodox authority Rabbi Eliezer Waldenberg ruled that an abortion was permissible as late as the sixth month of pregnancy if tests revealed a Tay-Sachs or Down syndrome/genetically anomalous fetus. Why? Because of the risks to the mother’s mental health in carrying the pregnancy to term.

That decision was controversial among some in the Orthodox community. And yet, there was ample precedent for it. In the 18th century, Rabbi Jacob Emden ruled a mother could end a pregnancy that resulted from an adulterous union because that pregnancy would cause her “great pain” (tzar gadol).

We would extend this to other heartbreaking, tragic and traumatic situations: if there has been rape or incest.

Respect for those whose faith would mandate a different decision

A decision they themselves would make, in consultation with physicians, possible partners, their moral and spiritual advisers and their own conscience. But, my religious sensibilities will not necessarily mandate the same choices. A basic civics lesson: In the United States, we do not allow religious groups to dictate personal decisions to others.

But, there is more to this controversy than meets even the well-trained eye.

If the Supreme Court were to overturn Roe v. Wade, let us have no illusions. It  would not end abortion in this country. In an America that is increasingly divided by class, the rich would still have access to abortions, and the poor would not. I abhor the specter of laws that would penalize the daughters of the underclass.

Moreover, I abhor the specter of post-Roe v. Wade laws that would send women to adjoining states for abortions. Take my own state, Florida, for example. Imagine if Florida outlaws abortion (it would not take much to imagine that). Where would a desperate pregnant woman go? Georgia? Alabama? Can we not imagine a belt of red states that would prohibit abortions, sending a pregnant woman from Miami all the way to, say, Virginia (at the very nearest) for necessary medical help.

Let’s tell the truth here, friends. For all their self-righteousness, pro-lifers have a mediocre record for recognizing the needs of pregnant women. They have done everything in their power to counteract any of the vast social changes that would reduce the need for abortions. They have consistently fought against sex education in the schools. They have yet to show any level of necessary sensitivity to creating a society, and workplace culture, that make childbearing and child rearing possible.

That is why I shudder for the future of Roe v. Wade. That is also why I shudder for the future of this country. I see the potential gutting of Roe v. Wade as part of a larger, more insidious ideological shift in this country, in which individual rights are whittled down, often under the guise of religious teachings.

I pray for Roe v. Wade.

More than that: I pray for the welfare of the families that its potential overturning would threaten.

That is my religious prerogative. I hope you will echo those prayers.