High Court Ruling Threatens Roe v. Wade


By a 5-4 vote, the United States Supreme Court, in a ruling described by dissenting Justice Ruth Bader Ginsburg as “alarming,” upheld for the first time a restriction on a woman’s right to terminate a pregnancy, by approving a ban on what is called “partial birth abortions.” Ginsburg described the majority’s “hostility” to a woman’s right to abortion as “not concealed.” The decision in the case of Gonzales v. Carhart upheld the Federal Partial-Birth Abortion Ban Act of 2003, which had been enacted by Congress and signed by then-President Bill Clinton after he won an amendment to provide exceptions to protect the life of the mother in the controversial late pregnancy procedures.

While even some supporters of a woman’s right to choose have concerns about or oppose late-term or “partial birth” abortions, the 5-4 ruling represents a major shift in the Supreme Court’s balance, which had previously disallowed any restrictions on the landmark 1973 case of Roe v. Wade, in which the High Court ruled that women had a constitutional right to terminate a pregnancy in consultation with her physician. Through the years since Roe, successive majorities on the Supreme Court have struck down all previous attempts to modify the finding that women have a constitutionally protected right to an abortion at any stage in pregnancy. According to The New York Times, the most important vote in the current case was that of the newest justice, Samuel A. Alito, Jr., who replaced Justice Sandra Day O’Connor, who had voted to strike down a similar Nebraska law in another 5-4 vote. Alito was joined by four other conservative justices: Chief Justice John Roberts and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. The latter two justices set off alarm bells in their concurring opionions in which they reiterated their opposition to the Roe v. Wade decision altogether.

Major Jewish organizations were quick to denounce the ruling in the Gonzales v. Carhart decision. The Reform movement’s Religious Action Center denounced the decision’s “disregard for the rights of the so-called ‘fraction’ of women who, for a range of reasons, including the preservation of their own lives, need specific reporoductive health services is heartless and insensitive.” Hadassah, the Women’s Zionist Organization of America said the court “inappropriately inserted itself into the personal lives of American women.” Other major Jewish groups denouncing the decision include the Jewish Council for Public Affairs, the Anti-Defamation League and the National Council of Jewish Women. NCJW President Phyllis Snyder said “This isn’t going to go away,” and that “This is the beginning of a new fight now.” The Orthodox Union, the modern Orthodox umbrella body, had no comment, according to the Jewish Telegraphic Agency. In the past, the OU has said that decisions on abortion — inclding late-term abortion — should be left to the mother, her doctor and her cleric. Among major Jewish groups, only the fervently Orthodox Agudath Israel of America praised the court’s decision, stating that “laws that prohibit the killing of partially delivered fetuses serve as a vital reminder of the enormity of moral issues surrounding the taking of a human life.”

In last Thursday’s debate among Democratic presidential candidates, MSNBC and NBC News moderator Brian Williams framed a question by pointing out that according to a recent poll, a majority of Americans were in favor of a ban on partial birth abortions and did not oppose the ruling in the Gonzales case. Several of the candidates pointed out that the danger lies in the language used by some of the more conservative justices, which not only upheld the partial birth abortion ban, but planted language that could later be used to overturn Roe v. Wade altogether. In particular, Justice Clarence Thomas, in his concurring opinion stated that there is “no basis” in the constitution for the landmark 1973 Roe v. Wade decision. This statement by Thomas justifies Justice Ruth Bader Ginsburg’s description of the ruling as “alarming,” because it could provide a precedential basis for overturning Roe. Thus, while reasonable people can and do disagree on the specific and rare instance of late term abortions, the overwhelming majority of Americans continue to favor a women’s right to choose as prescribed in the decision handed down in Roe v. Wade.

The St. Louis Jewish Light continues to support the position on the abortion issue taken by the overwhelming majority of American Jewish groups listed above, and we join Justice Ginsburg in describing the decision as “alarming” not only per se, but as an indication that additional efforts to erode hard-won reproductive rights for women are now more vulnerable than ever.