The Rabbi Writes: Abortion

The Jewish Humanist, September 1989, Vol. XXVI, Number 2

Human rights in America received a serious blow from the Supreme Court on July 3 when five justices upheld a Missouri law restricting abortion freedom.  Ever since January, when the Court announced that it would consider the controversial case, Webster v. Reproductive Health Services, the pros and cons of the abortion world have been waiting with bated breath to hear the decision.  Liberals were somewhat prepared for an unsatisfactory outcome.  They knew that the Reagan appointments of O’Connor, Scalia and Kennedy would have conservative consequences.  But they were hoping against hope. 

Rehnquist, speaking for the majority, stated that there was presently no necessity to overthrow Roe v. Wade, the landmark decision of 1973 that defined abortion choice as a constitutional right.  But he saw no constitutional reason why appropriate restrictions could not be placed on the exercise of this freedom, especially since the state had a vested interest in the preservation of individual life.  He found no difficulty with the state of Missouri’s decision to prevent abortion in public hospitals and clinics.  It was under no obligation to assist people in the exercise of their rights.  Nor was the required 20 week check on the viability of the fetus an illegal intrusion.  The independence of the fetus was a medical decision which could not be replaced by arbitrary court standards. 

Scalia joined the Court majority but dissented from the Rehnquist opinion.  He regretted that the Court had not been told enough to repudiate what was constitutionally wrong.  He believed that dismantling Roe v. Wade piece by piece was an act of judicial cowardice. 

On the other hand, Blackmun, the author of the 1973 majority statement, said that he heard the death knell of abortion freedom in the Rehnquist opinion and feared further assaults on the constitutional rights of American citizens. 

Following the decision anti-abortionists in virtually all the state legislatures framed new laws to place public restrictions on personal choice and to deny all forms of state aid and state support for women seeking abortion.  Liberal forces, angry and defiant, mobilized to resist this new legislative onslaught.  But, having lost the battle of the courts, they were not quite sure what new strategy to adopt.  They had invested so much energy in the motion that judges were ultimately the best defenders of abortion freedom.  The Rehnquist opinion dramatized certain realities for both conservative and liberal. 

1.  Ronald Reagan has won his battle to change the character of the Supreme Court.  The liberal Warren Court that drove conservatives to campaigns for impeachment no longer exists.  The liberals are now an old and somewhat feeble minority, desperately clinging to office out of fear of who would replace them.  The conservatives are young and vigorous.  And their public supporters, who at one time denounced the Court as a Communist cabal and sought to restrict its power, are now full of praise for the authority of the Court. 

2.  The Constitution, like the Bible, is not a document with an independent meaning all its own.  It ultimately means what its official interpreters make it mean.  They do not discover their opinions in the Constitution.  They impose their opinions on the Constitution, whether those judicial interpreters are liberals or conservatives.  The Constitution is a set of ‘kosherizing’ words.  But what these words mean is up to the judges.  And the judges, in the end, respond to changing political realities and to changing public opinion.   

3.  American public opinion has been deeply influenced by the persistent campaigns of the anti-abortionists.  In fact, the propaganda of the “pro-life” people has been far more effective than the educational campaigns of the “pro-choice’ advocates.  Anti-abortionists have been successful in seizing the moral high ground and in sowing doubts among ambivalent voters.  The Court, to some degree, is a reflection of the new public opinion. 

4.  Relying on the courts for ultimate protection is a misguided strategy in a democratic society.  Judges, in the end, are agents of political agenda and political parties.  In the higher courts they are political appointees, reflecting the political struggles of their time and deeply responsive to constituencies that favor their appointment.  Liberal courts can easily turn into conservative courts and vice-versa.  In the end, the defense of human rights must be won at the polls and not in the courts. 

Herein lies the challenge for all of us who believe in abortion freedom.  We have to convince the masses of the justice of our cause-not the judges. 

Ironically, many liberals who claim to be egalitarian have very elitist political convictions.  They do not trust the masses and are very pessimistic about the possibility of reversing conservative public opinion.  They are much more comfortable turning to small judicial bodies to impose their enlightened opinions on people who appear to be less enlightened.  They do not really trust the democratic process.  The reality is that, over the past decade, social conservatives have been far more successful in mobilizing the masses than liberals. 

Therefore, the traumatizing Rehnquist opinion is both a challenge and an opportunity for us.  We can no longer rely on the courts for our victories. We have to turn to the polls.  We will have to lobby legislators.  We will have to convince voters.  We will have to mobilize workers.  We will have to appeal to the ears and minds of the American people. 

This may sound like more work than we are prepared to do.  But there is no alternative.  In the end, the security of our freedoms cannot rely on the fickle loyalty of the courts.  It must depend on the support of the people and of public opinion. 

The judicial “setback” of the Webster decision may be the beginning of the revitalization of the feminist movement and of liberal political forces that need the challenge of an important political battle.  And we will not have won our fight until we convince a clear majority of the American voters that reproductive rights are human rights.