Undue Influence

Outrage this week over the leak of a draft Supreme Court ruling overturning the Roe v. Wade decision protecting abortion rights has been divided into two camps: those upset over the publishing of the secret document, and those upset over the content of the secret document. The first group tends to be conservative abortion opponents angry that the leak might lead to a more watered-down decision that leaves Roe intact. The second group tends to be liberal abortion advocates who are alarmed that there are at least 5 votes on the court to remove a right that women have enjoyed for 49 years.

On the question of the leak itself, I ask, why do the deliberations of the Supreme Court need to be conducted in secrecy at all? I tend to think about the judicial process from a Jewish perspective. In the Conservative movement, we have a Committee on Jewish Law and Standards which votes to endorse (or not) opinions on halakha (Jewish law) written by rabbis or groups of rabbis. While draft teshuvot (opinions) are not published, the authors are usually happy to send them to anyone interested in reading them. Meetings of committee are not broadcast live, but neither are they completely closed off. I remember being in rabbinical school and attending sessions that were held at the Jewish Theological Seminary.

One might argue that the Supreme Court should not be subject to undue influence from the public while deliberating on cases, but are the justices really shrinking violets that need to be protected? Perhaps if their drafts were published, outside legal scholars could offer advice and constructive criticism. It is not as if the public has no idea of the issues being discussed behind closed doors already. There is already a tremendous amount of scrutiny on the Supreme Court’s deliberations. If everything was out in the open, the justices could choose to ignore what they dislike, as they do now.

Perhaps allowing the public more of a role in the Supreme Court’s process would be a healthy development, especially considering the low state of the court’s reputation today. Many people already consider it to be a political body, unconcerned with the needs of society. Making the court more accessible might change that opinion.

As to content of draft opinion, I have already written about Judaism’s nuanced approach to abortion. The Conservative movement has condemned the potential ruling, while the Orthodox Union issued an odd statement that the institution was “unable to either mourn or celebrate” the draft. The OU tried to strike a balance of wanting to ensure that abortion is available to Orthodox women for the limited situations that halakha allows it, but also stating that it was against the idea of “abortion on demand”.

It struck me reading the OU statement that while they seemed to present a position outside the simplicity of the “pro-life”/”pro-choice” debate, they cannot escape the need to take a stand on the substantive question of whether the decision to have an abortion is in the hands of the state or the individual woman. The OU would like women to make a choice guided by halakha, as interpreted by a rabbi, which means that broadly speaking they must support a “pro-choice” position even if they may not support the choices of individuals who choose “abortion on demand”, whatever that may mean.

Women, including Orthodox women, make the decision to have an abortion for many different, often gut-wrenching, reasons. Having the state decide when or if a woman can have an abortion would infringe on Jewish women’s ability to fulfill their religious obligations because Judaism, in some instances, requires an abortion to protect the life of the mother.

Before Roe was decided, Ruth Bader Ginsburg, then a lawyer for the ACLU, wanted to challenge abortion bans on the basis of sex discrimination and religious freedom, not the right to privacy, as was the case with Roe. Her case became moot before it could reach the Supreme Court. As I suggested a few months ago, perhaps if Roe is struck down, as the draft seems to indicate, Jews in a state that bans abortion should bring a case along the lines that Ginsburg envisioned. If they were to win it would be a Jewish victory for all Americans.

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