Although Torah comes out of Zion and the Word of G-d from Jerusalem, too often Israelis adjust their proud Judaic social and world views to align instead with those of the secular and often vulgar West. America’s culture, in particular — a culture which has regressed this past quarter century to become more coarse and crude than ever before and often impacts Israeli values. It seems as though Tel Aviv and Haifa secularists sadly reverse Rav Yehuda Halevi’s passion, they in the east and their hearts longingly in the West. Therefore, major transformative developments in America often can impact Israel, too, which makes this article relevant for both the US and the Jewish State.
In Roe v. Wade the US Supreme Court held that the Constitution protected a woman’s right to an abortion prior to the viability of the fetus. Presently, there is much expectation, though no certainty, that the United States Supreme Court soon may be overturning that 1973 ground-breaking precedential opinion on abortion law
And that is good.
Democrats and Leftists of all sorts now are in a tizzy. As with most public policy arguments that explode in our era of social media, peppered by non-stop lies fabricated by cynically dishonest politicians, the entire public discourse in America is obfuscated by a proliferation of false “facts,” arcane arguments, and mainstream media mendacious meddling. Let us instead welcome clarity as we carefully analyze the unfolding American legal drama:
1. In General, Legal Precedent Should Not Be Overturned.
Under Western society’s principle of stare decisis, legal precedent is respected even when a bit dubious. People need to wake up each morning knowing the laws governing their lives. It cannot be that on Monday we cross at the red and wait at the green, and on Tuesday they change the colors to magenta and chartreuse.
We need general ideas of what is lawful, unlawful, what may be required and enforceable in contracts, the obligations for maintaining our properties. Those in doubt often seek advice from their attorneys and accountants, and those professionals also need to know that the rules bear consistency. A society cannot willy-nilly change its laws every Monday and Thursday.
2. Sometimes, Though, It Is Desirable to Overturn Bad Law.
Nevertheless, sometimes “rules are made to be broken.” Some laws need to be changed.
-In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the U.S. Supreme Court essentially blessed slavery with the imprimatur of the nation’s highest court in shockingly racist language. That had to be changed.
-In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld the principle that laws could govern the races as long as they assured “separate but equal” treatment. That also had to change, as it did when Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was handed down. Now it is only the Woke who press for Blacks to have separate cafeteria and dormitory facilities at colleges.
These are two of the most famous overturned U.S. Supreme Court decisions. There have been many others, among them:
- In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court held that public school teachers could be forced to pay union dues. That was overturned in Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. ___ (2018).
- In Lochner v. New York, 198 U.S. 45 (1905), the Court allowed bakery employers to demand more than 60 hours weekly from their workers under the “freedom to contract.” The Court later reversed itself in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), finding that legislatures enjoy discretion to regulate work hours to protect health and safety.
- In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld Georgia anti-sodomy law that forbade oral or anal intimate contact. That precedent was abandoned in Lawrence v. Texas, 539 U.S. 558 (2003).
- Interracial marriage was banned by the Court in Pace v. State of Alabama, 106 U.S. 583 (1883). The Court changed its mind in Loving v. Virginia, 388 U.S. 1 (1967).
- In Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990), the Court upheld state laws restricting corporate donations to political campaigns. That decision was overturned in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
- In Whitney v. California, 274 U.S. 357 (1927), the Court upheld restrictions on speech “tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.” Whitney was overturned in Brandenburg v. Ohio, 395 U.S. 444 (1969), which set a tougher bar banning speech only when it threatened “imminent lawless action.”
- In Betts v. Brady, 316 U.S. 455 (1942), the Court held that indigent defendants did not have some kind of Constitutional right to counsel; that was overturned by Gideon v. Wainwright, 372 U.S. 335 (1963), which found such rights in the Fifth and Sixth Amendments.
See here for a list of 130 U.S. Supreme Court decisions that the Court has overturned. These judicial reversals have spanned the full gamut from admiralty law, criminal law, and antitrust law to due process law, free speech law, and federal tax law.
3. Although the Left Bemoans Overturning Roe, the Democrats and Other Woke Never Hesitate to Try Overturning Settled Law and Rules They Don’t Like.
As recently as now, the Democrats and their predominantly leftist mainstream media wing have been working full force to try overthrowing the Senate filibuster rule that has existed in its present form for almost half a century since 1975 and that they themselves used as many as 327 times to thwart President Trump’s legislative initiatives. They also would pack the U.S. Supreme Court beyond the nine justices who have ruled the bench for more than a century and a half, dating to the Judiciary Act of 1869. They have made a shamble of immigration law on the books, likewise refusing to abide by the Constitution’s Supremacy Clause and instead “going rogue” by following their own ad hoc “sanctuary city / sanctuary state” corruptions.
4. Any Court Would Overturn a Prior Ruling When the “Accepted Science” Has Changed.
Imagine a class action suit before the Supreme Court, during an era when people understood the earth to be flat, brought by sailors asking for legal protection in employment from those who force them to sail to the farthest east or west. The Supreme Court, if in a Lochner mood, might have ruled that the matter is internally contractual and outside the court’s scope, or they might have ruled that such certain-death employment requirements violate the conscience and public policy. Regardless, the “science” changed as Copernicus and Galileo helped determine that the earth is oval. In time, a cruise line might come before the Court and seek to overturn this hypothetical “landmark precedential” case. The Court easily would throw out its prior holding on grounds that the “science” has changed.
Roe v. Wade, 410 U.S. 113 (1973), was decided half a century ago. The “science” then had not yet advanced to where it is today. We now have ultrasound advances and so many other medical and technological breakthroughs that we now know that a fetus is living by its fifteenth week. (For 2,000 years, by the way, Talmudic Judaism has taught that the soul enters the fetus at its fortieth day. If counting from the time of mikveh immersion, that could be within 54 days or just about eight weeks from birth. CompareSanhedrin 91b withMenachot 99b. See also Yevamot 69b and Nidah 8b. Under all such understandings, which do not define American law but afford comparative wisdom, the fetus is a life form even before the fifteenth week.)
While ultrasound images once were static and black and white, now we have 3D, 4D, and real-time images. As early as 15 weeks, doctors now can see whether the fetus favors its right or left. Physicians can see the fetal heartbeat by six weeks, observe baby movements, evaluate the anatomy, and determine fetal gender earlier than could be done before. Fetuses may feel pain from as early as twelve weeks’ gestation and definitely by eighteen weeks.
We did not know this in 1973. The science has changed discernibly and dramatically. It therefore is consistent with standard jurisprudence to overturn Roe v. Wade now.
5. Under America’s System of Federalism, Roe v. Wade and Abortion Law Never Should Have Been Converted from a State Matter to Federal Law.
The United States system of governance is based on “federalism.” The original thirteen colonies (now called “states”) had experienced tyranny under King George III, and they zealously sought protection from any future sovereign again restricting their freedoms. In time, they came to see that certain rights had to be delegated by the local community polities to a broader, uniform federal government: for example, authorizing uniform printing of currency, maritime law, war and peace on foreign matters, regulating trade between and among the independent states. You can’t have New York minting coins with Ed Koch’s face while California prints paper currency with Arnold Schwarzenegger or Kobe Bryant on one side and a homeless tent colony on the other.
On the other hand, the original colonies zealously reserved to themselves most other areas of regulation: business contracts, civil tort law governing social rights and wrongs as between and among neighbors, property and realty law, criminal law. These differences among the individual fifty states explain why Texas and Florida punish crime more vigorously than do New York, Massachusetts, and today’s California. Similarly, sophisticated attorneys sometimes bring lawsuits to Louisiana to litigate insurance bad-faith claims, and a disproportionate number of companies incorporate in Delaware where state laws confer extra legal protections to businesses.
Abortion law has no federal basis. That is, it really is something more appropriate to more localized state jurisdiction rather than to uniform federal control. To the degree it governs killing and murder, it falls under criminal law, a state concern. If it is about parental rights, those are state matters, just as are marriage licenses and differing state standards governing divorce, wills, alimony, and related family law matters.
Roe v. Wade never was susceptible to federal governance and never belonged in the federal courts. All anti-Roe and a huge number of pro-Roe law professors and attorneys acknowledge that it is one of the worst crafted, least honest or law-based opinions ever published. The U.S. Supreme Court of 1973 simply decided they would legalize abortion, and they concomitantly concocted a conundrum of “Constitutional” law. They discovered “rights” buried in the Ninth Amendment that no one before ever discerned. They dispensed with basic rules of judicial analysis. By so doing, they formulated a toxin that has festered for 49 years. The matter belonged in the states, and that is the destination to which the Supreme Court probably will send future abortion law, a bit too belatedly for the 63 million fetuses who were terminated before having their day in court.
6. Once the States Get Abortion Law Back, American Women Will Have Plenty of Abortion Options.
When Roe is overturned, the Left initially will burst with another tizzy fit. Alexandra Ocasio-Cortes will break down in tears as she did when Congress voted to send defensive missiles to resupply Israel’s Iron Dome protection shield that guards civilian lives. Bernie Sanders will turn back to Marx and Stalin for comfort. Adam Schiff will claim he has proof that Putin paid the justices to vote as they did. Chief Justice Roberts will check how he voted last time and will balance this time. Kamala Harris will say “we need to have this conversation” and “I encourage you to speak your truth.” Biden will ask Dr. Jill what the hubbub is all about and whether he needs a mask.
But as soon as the Court throws out Roe as bad law, all rapidly will transition to calm. Those who want abortions will have more choices than ever — spread equidistantly from the American east to the midwest to the south to the west — in deep blue liberal states like Vermont, Massachusetts, New York, Illinois, New Mexico, Oregon, and California.
This is not the 1780s. All Americans now travel across states, even when they do not realize it. Kyle Rittenhouse crossed from Illinois to Wisconsin in less than half an hour. People fly to family all over the country. Americans regularly visit Disneyland and Hollywood (California), Broadway theater and the Statue of Liberty (New York), famous filming sites of Breaking Bad (New Mexico), and the Willis (formerly Sears-Roebuck) Tower, John Hancock Center, and Saturday Night Shooting Galleries of Chicago. After the COVID pandemic, they will be back in Massachusetts to visit the Freedom Trail and and in Vermont, where New York carpetbaggers Ben Cohen and Jerry Greenfield occupy native American lands to supply young people with a diet of saturated fats and processed sugars.
All these states and locations will offer unlimited abortions, with Planned Parenthood supplementing advertising and subventing costs. Democrats and others among the Woke will be free to practice population control in those centers, reducing the Black population as they always have, and Republican conservatives will watch with fascination.
And the nation will be able to return to debating the best way across a lake: ro[e] v. wade?
Adapted by the writer for Arutz Sheva from a version of this article that first appeared here in The American Spectator.
Rabbi Prof. Dov Fischer is Contributing Editor at The American Spectator, adjunct professor of law at two prominent Southern California law schools, Senior Rabbinic Fellow at the Coalition for Jewish Values, rabbi of Young Israel of Orange County, California, and has held prominent leadership roles in several national rabbinic and other Jewish organizations. He was Chief Articles Editor of UCLA Law Review, clerked for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and served six years on the Executive Committee of the Rabbinical Council of America. His writings have appeared in The Weekly Standard, National Review, Wall Street Journal, Los Angeles Times, Jerusalem Post, Israel Hayom, and The Jewish Press. Other writings are collected at www.rabbidov.com .