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A Turbulent Term for the Supreme Court


Two of the recent Supreme Court decisions are of particular interest to the Jewish Community, Dobbs v. Jackson Women's Health Organization and Carson v. Makin. The first topic has to do with the right to have an abortion and the second addresses state funding for tuition in a private religious school.

A little background:   

The case Dobbs v. Jackson Women’s Health Organization centers around a suit brought by Mississippi’s only abortion clinic against Thomas E. Dobbs, the state health officer with the Mississippi State Department of Health in March 2018. The Jackson Women’s Health Organization challenged a 2018 Mississippi state law that banned most abortion operations after the first fifteen weeks of pregnancy. Lower courts prevented the enforcement of the law based on the precedent set in Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court ruled that the right to privacy guaranteed by the Fourteenth Amendment of the United States Constitution prevented states from banning abortions before the age of fetal viability (twenty-four weeks). However, in their landmark decision, the Supreme Court ruled that there is no inherent right to privacy in the U.S. Constitution. According to this argument, the U.S. Constitution does not protect a woman’s right to an abortion, thus overrulling Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).


At the core of these cases is the question of whether there is a constitutional right to privacy. While it may seem like a given, there actually is no explicit right to privacy written into the Constitution. However, the Supreme Court has ruled that constitutional penumbras guarantee an implicit right to privacy. In other words, the existence of certain explicitly stated rights necesitate a right to privacy. In the majority opinion of the landmark case Griswold v. Connecticut, Justice William O. Douglas argued that a “zone of privacy” must exist in order to guarantee the liberties of the First, Third, Fourth, Fifth, and Ninth Amendments. In the same case, Justice John Marshall Harlan issued a concurring opinion that argued for a right to privacy based on the Fourteenth Amendment. Since Girswold, these arguments have been extended to guarantee a number of civil liberties protected by the constitutional right to privacy. 

One such extension is that the right to privacy prevents the government from interfering in an individual’s personal medical decisions, such as the decision of whether to terminate a pregnancy. The Supreme Court’s decision in Dobbs to strip away the right to privacy means that the government can decide which medical procedures a person can undergo - states can now make laws that restrict the personal choices and decisions of its citizens. 

The effects of this ruling are far reaching. Justice Thomas writes in his concurring opinion that the court should now overturn other cases that are based on the former right to privacy. Among those are the aforementioned Griswold case, in which the court ruled that people have a constitutional right to choose if they wish to use contraception. 

There are already states with laws prohibiting all abortions with no exemptions. There are also statutes which criminalize assisting or counseling someone to get an abortion. For example, in Texas, Oklahoma, Minnesota, or Missouri it is a crime for a doctor to perform an abortion or to aid and abet a woman in obtaining an abortion. These statutes also give standing to any other person at all to file a civil suit against someone who aids and abets a woman to get an abortion.

Abortion is never something that we would want to have happen in an ideal situation. That is not our issue. We hope that it happens very rarely, if ever. 

However, when it is appropriate to carry out such a procedure, the question we need to ask ourselves is do we want the state to make the decisions, or should the decision be made by the patient in consultation with their doctor and rabbi. 

Here is the Orthodox Union’s statement on the Supreme Court’s ruling:  

The Orthodox Union is unable to either mourn or celebrate the U.S. Supreme Court’s overturning of Roe v Wade. We cannot support absolute bans on abortion—at any time point in a pregnancy—that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that does not limit abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.

As people of faith, we see life as a precious gift granted to us and maintained within us by God. Jewish law places paramount value on choosing life and mandates—not as a right but as a responsibility—safeguarding our own lives and the lives of others by behaving in a healthy and secure manner, doing everything in our power to save lives, and refraining from endangering others. This concern for even potential life extends to the unborn fetus and to the terminally ill.

The “right to choose” (as well as the “right to die”)—are thus completely at odds with our religious and halachic values. Legislation and court rulings that enshrine such rights concern us deeply on a societal level.

Yet, that same mandate to preserve life requires us to be concerned for the life of the mother. Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by Halacha and should be available to all women irrespective of their economic status. Legislation and court rulings, federally or in any state, that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life.

The extreme polarization around and politicization of the abortion issue does not bode well for a much-needed nuanced result. Human life—the value of everyone created in the Divine Image—is far too important.

Regarding Carson v. Makin, here is Agudath Israel’s statement:

The United States Supreme Court today issued a landmark ruling that positively impacts religious schools’ ability to participate in state aid programs. The Court ruled that the First Amendment’s Free Exercise Clause prohibits states from discriminating not only against schools that identify as religious, but also those that actively teach religious subjects. This ruling eases the way for state aid to flow to parents who choose to send their children to religious schools.

Agudath Israel of America, along with several other Orthodox Jewish groups, submitted an amicus brief in the case, authored by constitutional scholar Nathan Lewin.

The case, Carson v. Makin, involved a Maine law that required the state to pay for a student’s tuition in the event that the district in which a child resided had no public schools. The law, however, provided that parents could send a student to any school except those that included religious instruction, on the grounds that the United States Constitution prohibited government aid to religious institutions.

The lower courts accepted Maine’s distinction between schools that maintain a religious “status,” which would allow their participation in the government program, and those that have religious “use,” which would not.

The Supreme Court, however, reversed the lower courts’ rulings. Writing for the Court in the 6-3 decision, Chief Justice John Roberts asserted, “The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

In issuing its much awaited ruling, the Court further stated that where a government program exists, it cannot discriminate against religious schools because they maintain religious instruction as part of their curriculum. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Chief Justice Roberts wrote.

Rabbi Abba Cohen, Agudath Israel’s vice president for government affairs and Washington director, hailed the decision. “Agudath Israel has been fighting religious discrimination for decades, and we will continue to do so. We are thrilled that the Supreme Court has made clear that discrimination against religious instruction in state aid programs is a constitutional violation. Other states that have ‘no aid’ provisions in their state constitutions and law can effectively feel free to now enact programs that encourage or provide assistance to religious schools on an equal basis with other nonpublic schools.”

“This is a significant win for parents in Maine and across the country who will now have more freedom to choose private and religious schools for their children,” said Rabbi A. D. Motzen, Agudath Israel of America’s national director of state relations. “Today’s ruling endorses Agudah’s longtime position that states may not bar families from using state aid at the school of their choice simply because they choose a school that includes a religious curriculum.”