Updated: June 24, 2022. In a 6-3 decision, Dobbs v. Jackson Women’s Health Organization overruled Roe and Casey. Opinion of the Supreme Court 19-1392.
Ameer Benno presented the case’s background at the June 22 club meeting.
Roe v. Wade: 410 US 113 (1973)
• In a 7-2 decision, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion.
• It also ruled that this right is not absolute, and must be balanced against the government’s interests in protecting women’s health and prenatal life.
• The court tied the state’s regulation of abortion to the three trimesters of pregnancy; during the first trimester, governments could not prohibit abortions at all.
• The Court defined the right to an abortion as “fundamental,” which require courts to evaluate challenged abortion laws under the “strict scrutiny” standard.
Planned Parenthood v. Casey: 505 US 833 (1992)
• Upheld the “essential holding” of Roe – the constitutional right to have an abortion
• Overturned the Roe trimester framework in favor of a viability analysis
• The Court also replaced the “strict scrutiny” standard of review required by Roe with the “undue burden” standard under which abortion restrictions would be unconstitutional if enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Dobbs v. Jackson Women’s Health Organization (2022)
Three Questions Presented in Certiorari Petition before the Supreme Court:
- Are all pre-viability prohibitions on elective abortions unconstitutional? SCOTUS considers only this question on May 17, 2021.
- Whether the validity of a pre-viability prohibition should be analyzed under Casey’s “undue burden” standard or under Hellerstedt’s balancing of benefits and burdens?
- Do abortion providers have a legal right to challenge laws that ban or restrict abortions on behalf of their patients (third-party standing)?
Constitutional Arguments
- Casey did not embrace Roe’s reasoning – it based the abortion right on “the liberty this Court has afforded to certain personal decisions.”
- But a right to abortion is not a “liberty” that enjoys protection under the Due Process Clause. That Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
- “History does not show a deeply rooted right to abortion. Rather, history shows a long tradition – up to, at, and long after ratification of the Fourteenth Amendment – of States restricting abortion. At the end of 1849, 10 of the 30 States had statutes restricting abortion; by the end of 1864, 27 of the 36 States had them; and, at the end of 1868, the year the Fourteen Amendment was ratified, 30 of the 37 States had such laws, as did 6 Territories.”
- “And when Roe v. Wade was decided [in 1973], most States had restricted abortions for at least a century.”
Government’s Interest (Dobbs)
- Protecting the Life of the Unborn. “At 5-6 weeks’ gestation, an unborn human being’s heart begins beating. At about 8 weeks’ gestation, all basic physiological functions are present, as are teeth, eyes, and external genitalia. At 10 weeks, vital organs begin to function and “hair, fingernails, and toenails begin to form. At 11 weeks, an unborn human being’s diaphragm is developing, and he or she may even hiccup. At 12 weeks’ gestation, he or she can open and close fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. He or she has taken on the human form in all relevant respects.”
- Protecting the Medical Profession. “Most abortion procedures performed after 15 weeks’ gestation, the Legislature found, are dilation-and-evacuation procedures that involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature found that this is a barbaric practice when performed for nontherapeutic reasons and is demeaning to the medical profession.”
- Protecting the Health of the Women. “Dilation-and-evacuation abortions risk ‘(m)edical complications.’ These include: pelvic infection; incomplete abortions (retained tissue); blood clots; heavy bleeding or hemorrhages; laceration, tear, or other injury to the cervix; puncture, laceration, tear, or other injury to the uterus; injury to the bowel or bladder; depression; anxiety; substance abuse; and other emotional or psychological problems.”
- The “United States is one of few countries that permit elective abortions after 20 weeks’ gestation.”
- “After 12 weeks’ gestation, 75% of all nations “do not permit abortion except (in most instances) to save the life and to preserve the physical health of the mother.”
- “If a State’s interests are compelling enough after viability to support a prohibition, they are equally compelling before then.”
Respondent’s Arguments (Jackson Women’s Health Organization)
- Viability is a “clear” line, which helps ensure that an individual’s right to “retain the ultimate control over her destiny and her body” is not “extinguished.”
- Nothing “ha(s) rendered viability more or less appropriate as the point at which the balance of interest tips. This is so regardless of ongoing medical advances, of which the Court was well aware in Casey.”
- “Far from being arbitrary, unsatisfactory, or a moving target as Mississippi asserts, the viability line has proved enduringly workable, representing as it does a simple limitation beyond which a state law is unenforceable.”
- “Viability has not moved – and instead has remained the same – since 1992, when this Court decided Casey. At that time, the Court noted that viability in a normally progressing pregnancy occurred at approximately 23 to 24 weeks, and that is where it remains today.
Cathy Donohoe. “New York should stop presenting abortion as the best and only option for struggling women and harassing any pro-life pregnancy center that may help women keep their babies.
The signing comes after both houses of legislature passed bills strengthening not only the right to abortion care in the state, but transgender care for patients.
The six bills passed by the legislature include:
• Protecting medical professionals from misconduct charges for providing legal abortions.
• Prevaenting extradition of defendant in abortion related cases if they’re charged in another state
• Protected the address information of employees and volunteers working with abortion providers
• Creating a task force to study the impact of “limited-service pregnancy centers”
In May, Hochul and state Democrats doubled down their efforts on abortion rights after the controversial leak of a document from the Supreme Court on the Roe v. Wade decision. Hochul pledged that the state would invest $35 million to support abortion providers across New York while New York Attorney General Letitia James pushed for $50 million for a Reproductive Freedom and Equity Program, a total of $85 million, both to be funded through state health department grants.
‘The women of New York will never be subjugated to government-mandated pregnancies,” Gov. Hochul said, “because that’s what will ensure if Roe v. Wade is overturned by the Supreme Court.'”
Alice Lemos of Jewish Pro-Life Foundation. I have been a member of the Board of the Jewish Pro Life Foundation for approximately a year and a half. Our mission is to enlighten the world and our fellow Jews with the fact that Judaism is the original pro-life religion and, in fact, that Christianity and Islam obtain their pro-life views from Judaism – certainly not from the surrounding pagan cultures which practiced child sacrifice. In fact, the Roman historian Tacitus condemned Jews and Christians because they would not sacrifice their children. He wrote: “They learn to despise the gods. . . and see to it that their numbers increase. It is a deadly sin to kill an unwanted child, and they think that eternal life is granted to those who die in battle or execution – hence their eagerness to have children, and their contempt for death. . . the Jewish religion is a purely spiritual monotheism.” Note Tacitus’ contempt for the Jews for their refusal to practice infanticide or to kill sickly babies which the Romans and Greeks did freely. What is partial or late-term abortion except the modern version of infanticide? And let us not forget the destruction of the Downs Syndrome population in the USA and abroad- about 80% of Downs Syndrome babies are aborted – thanks to the push for genetic testing and the search for the “perfect” baby – which is a form of eugenics. Unfortunately, Charles Schumer, a new grandfather, who was born Jewish, is an avid supporter of infanticide. Let us hope that he reflects on the preciousness of life as he looks at his new granddaughter. (I was, to put it mildly, horrified when I heard the late Rabbi Balfour Brickner defend partial birth abortion on the O’Reilly Factor over twenty years ago. When I confronted him over the phone, he was less than gracious.)
It is thus doubly tragic – given our dwindling numbers – that mainstream Jewish organizations including the ADL, Hadassah and even Hillel, have devoted themselves to the pro-abortion cause. The ADL and the detestable National Council of Jewish Women have submitted briefs in opposition to overturning Roe. My organization submitted a brief in favor of overturning Roe. We have to ask ourselves what has happened to mainstream Jewish organizations that would have them turn Judaism, the original pro-life religion, on its head and declare that abortion is a “Jewish right” – putting themselves at odds with the Torah and at odds with what true liberalism is: the defense of the defenseless. It is also puts them in the same category as Satanists. Satanism is another “religion” which considers abortion to be religious right.
Radical leftwing groups have taken over what used to be the fine ADL. Under the leadership of Jonathan Greenblatt, the goal of the ADL- which used to be to defend Jews from anti-Semitism – is to defend against so-called extremism and to promote the Democrat party. Per Greenblatt, the only extremists are Republicans. Greenblatt totally ignores the hatred coming from the Squad and even the mainstreaming of anti-Semitism in the Democrat party. In the next election cycle it is entirely possible that NYC will not have a single Jewish member in congress. I mention the radicalization of the Democrat party – most American Jews remain Democrats – because its most sacred platform is its extreme push for abortion rights for anyone at any time for any reason.
The National Council of Jewish women routinely defends anti-Semites such as Linda Sarsour. In fact, there is nothing “Jewish” about this group. Its founder, Hannah G. Solomon, was a Stalinist. This group hides behind the canard that “abortion is a Jewish value” basing this on an obscure passage in Exodus (21:22-25) regarding the punishment for a man who causes a woman to miscarry. This is the same group that pushes for gay and transgender rights while ignoring Leviticus an its dictates against sodomy. In order words, it cherry picks from the Torah which values to defend. Any value which does not conform to its lefty extremism is ignored.
Let us also not forget that the abortion pill was originally created by the Nazis who enjoyed torturing pregnant Jewish women. Among the earliest victims of the Nazi regime were the disabled – all in the name of “compassion” of course. The war that is being conducted on sick babies is an extension of this. Again, in the name of “compassion”. We need disability rights organizations to denounce the aborting of sick babies or babies with a poor diagnosis.
Recently, I read an article in AISH about a Jewish woman in Israel who claimed to be Orthodox and who decided to abort a baby whom the doctor had declared would have “serious problems” – the exact problems never spelled out in the article. Her wimpy husband tells her that it is “her decision”. I found it interesting that the woman involved stated that “she would have dreaded going to the hospital to wait upon surgery for the baby” – showing what a self-centered narcissist she is. This is the mind of a self-entitled woman who believes she is entitled to a perfect life with a perfect child. Recently, on another AISH talk, I heard a woman who claimed to be religious state that women need the right to an abortion because of the infant formula shortage and because “child care is expensive”. I agree that child care is expensive. But killing babies in the womb does not bring down the cost of child care and it does not miraculously produce baby formula. These are two examples of supposedly religious women giving in to secular selfishness and preening narcissism.
Online in a chat room for flamenco fans, one woman had the nerve to write that “You can’t be Jewish and pro-life” because of her misinterpretation of Exodus. My response? Norm Coleman and Lee Zeldin manage to be pro-life. I blocked her and the others who were Catholic-bashing and attacking pro-life Jews as they are incapable of reasoned discourse and debate. This is the same crowd that refers to babies as “parasites” language that the Nazis employed for people whom they deemed “undesirable”. Another woman, a “rabbi” called her own abortion “sacred” and had the audacity to go to a mikva after she had taken her abortion pills. Obviously a rabbi or religious leader should not be engaging in premarital sex. Of course, there is no mention of the baby’s father since men have been made irrelevant thanks to decades of Roe.
There is a group called Jexidus whose goal is to encourage American Jews to leave the Democrat party. I am hoping that those who leave – and they have had much success in Florida- will also embrace the pro-life plank of the Republican party as the Democrat Party has turned its back on pro-lifers. Let us continue to promote a culture that welcomes children and makes it easier for women to give birth. A society that does not value the lives of its babies is a society that will slowly rot from within. People who seek to destroy a great religion by misrepresenting it play to the anti-Semites in the crowd.
Carol Sanger of Columbia University was invited, but did not respond.
Resources: Pregnancy week-by-week, 18 USC Chapter 90A §1841, New York ACLU, Abortion and Judaism, National Geographic June 23, 2022 article on Roe v. Wade.
