Next week will mark 21 years since my Aliyah, and I am forever filled with gratitude to be here (yes, even on the bad days). That said, I remain an American as well: I pay taxes in the US and vote in US elections. And I care deeply about what happens to the nation of my birth.
Most of the time, my postings focus on what is transpiring here in Israel; but occasionally my attention is drawn back to events back in the US.
This is such a time. What is going on now is cause for grief and I do not wish to remain silent.
Without a shadow of a doubt, I will return to writing about Israeli politics very soon. But today, I look across the ocean.
It would not be possible to point a finger and say, on this and this day America began to fall apart. It has been a process, a slow and deeply disturbing process: we are witnessing the rapid disintegration of traditional norms and values. I certainly do not intend to track the full downward trajectory here. I could not. I simply want to address the current state of affairs with regard to the matter of abortion rights and the Supreme Court ruling.
Even before the ruling, there were strong indications that something was seriously amiss. First there was a leak of a draft of a possible ruling. Such leaks are not supposed to happen. The intent, of course, was to generate a popular furor so that the Court might collectively change its mind before the final ruling had been announced.
But that is not how matters work in the Court. Court rulings are not like votes cast in Congress with regard to legislation or resolutions. Members of Congress answer to their constituencies and are expected to be receptive to the opinions of their constituents. Lobbying members of Congress is an honorable practice when done within ethical bounds.
The Supreme Court considers petitions from lower courts (either a lower Court of Appeals, or, where constitutional issues are involved, state courts). At least four of the nine members of the Court must agree to consider a petition, and in the end, after the Court has considered the petitioned cases and read the briefs that have been submitted from each side, only a very small percentage of these are heard (maybe 80 out of 1,000).
The Court then hears oral arguments for each side of a given case. Members of the public may be present during these oral presentations.
Amicus curiae (friend of the Court) briefs may be filed with the Court, if permission is granted by the Court, regarding cases that are pending. The briefs must contain “relevant matter” that “may be of considerable help,” but that had not been considered by the parties, e.g. the perspective of an expert. There are no opinion polls commissioned by the Court, and no time during which an average citizen without special experience or expertise can knock on the Court door and say, “Excuse me, but you need to consider what I want.”
The Justices’ Conference is then called during which cases are decided. Only the Justices themselves are permitted to be privy to the discussions. They make their decisions based on the information they have secured and their own considerable knowledge regarding US law and the Constitution.
The attempt to subvert this procedure – a formally spelled out procedure of long-standing – by leaking information in order to promote public opinion against the likely finding of the Court seemed to me a mark of outrageous disrespect for the Court, and a challenge to the process of law and order in the land.
Of course, there has been scant respect for process of law and order in the US for some time now. Not so very long ago we were seeing breathtakingly stupid calls for defunding of the police in the midst of a time of increased violence in the streets.
Following the leak, mobs gathered outside the homes of some of the Justices, attempting to intimidate them into changing their votes. Then, on June 8, a heavily armed man was caught near the home of Supreme Court Justice Brett Kavanaugh (pictured); the man told police he intended to break into Kavanaugh’s home and kill him.
This should have shocked the nation into calling for a process of collective soul-searching. As an editorial in National Review put it: “The prospect of the assassination of a Supreme Court justice linked to the outcome of a pending case poses such a significant threat to our republic that it should send chills down the spine of every American.” But it didn’t. Oh, there were laments, and the op-eds that would have been expected.
But many were simply oblivious to the implications of what was transpiring, and some were without shame. There were actually demonstrations outside Kavanaugh’s home after the news of the intended assassination had broken – and even though in fact doing so is against the law (a law that is not enforced).
In May, activists had posted a map of justices’ homes. When former White House press secretary Jen Psaki was asked about this, she responded, “I think the president’s view is that there’s a lot of passion, a lot of fear, a lot of sadness from many, many people across this country about what they saw in that leaked document.” Precisely what was implicitly condoned with that statement? Not only were justices’ homes being targeted for demonstrations, pro-abortion activists had firebombed and vandalized offices of pro-life groups.
If we go back two years, we are reminded of the words of Democratic NY Senator Chuck Schumer, then Senate Minority Leader, directed at two justices of the Supreme Court, with regard to an earlier abortion issue:
“I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Schumer later regretted these comments, but is it possible for him to re-call the message he delivered?
And so, as we all know, the Court rendered its decision on abortion undeterred by the threats and the violence. Amidst an hysterical reaction to the ruling on the left, there have been riots and acts of violence, including something called “Night of Rage” in Washington DC.
Look at what’s happening in DC right now https://t.co/F0CsnGiZSW
— Mark R. Levin (@marklevinshow) June 24, 2022
And this, in Colorado at a pregnancy center:
All of this made me very sad, but did not surprise me. This is how large numbers of Americans express their discontent and anger at a given situation. Nothing constructive, nothing uplifting about it.
And I thought, what colossal fools they are. For the Court did NOT say that abortion was illegal. Not at all. The decision was with regard to the Constitution: There is no “right to abortion” in the Constitution. The Constitution does not mention abortion, nor can abortion rights be subsumed under privacy rights. The Roe v. Wade decision of 50 years ago, said this Court, erroneously ruled on abortion when it had not the jurisdiction to do so, for decisions on abortion REST WITH THE STATES. And so the Court was returning this power to the states where it belongs.
Had the protesters an iota of a democratic sense left in them, a sense that embraced the need for functioning with regard for law and order, they would have approached the matter very differently. They would have begun to organize immediately within their respective states, to secure guarantees on abortion. They would have lobbied their legislatures, done op-eds, offered education in line with their position. All without threats or violence. That is what SHOULD be, so different from what is.
This is what America could be, but is not.
Of course, in many states the laws on permitting abortion will be generous. And even in states where there will restrictions on abortion, it is not likely to be forbidden outright, especially not in the first trimester. And so the hysteria does seem over the top.
I will add that, to the best of my information, this ruling in no way even remotely impinges on birth control, although there are those seeking to increase panic who say that it does.
And here I express my deepest concern, my deepest sadness, about America. This is not new, it has simply come to the fore now. There are those in the pro-abortion camp who see the right of women to abortions as an absolute. This is the ultimate value: a woman’s “right” to do what she chooses with “her” body.
But wait, when we are speaking of abortion we are also speaking about another being who is existentially threatened. Somehow in the equation of the leftist pro-abortionists this fact is obscured or considered of no import. And so over the course of the last few years restrictions have been erased, exacerbating the situation.
I have learned that originally even Roe v. Wade did not permit abortions in the third trimester, when the fetus is potentially viable. A subsequent Court ruling permitted abortion to the moment of birth. And there are some states today where that is permitted.
I shudder with the horror of it, for this is infanticide: the killing – in horrendous fashion – of a viable fetus that could live outside the womb. I have even read reports (admittedly rare) of doctors who say that if the abortion process does not quite kill the fetus, and it emerges still alive, it does not have to be sustained alive – it can be permitted to expire. This is the stuff of nightmares, of a nation whose moral sense has gone badly askew – that this would be permitted ever: Women’s “rights” have been expanded to override concerns for the life even of a viable fetus. And these expanded women’s “rights” are deemed so important that violence in their name is justified.
How excellent it would be, were there moderation on the issue – instead of a left that pushes the envelope in a most self-absorbed fashion.
Yes, yes, abortion should be permitted. In the early weeks. If there is threat to the physical or mental health of the mother. If the pregnancy is the result of rape or incest, or the mother is under age. There are a number of reasons, and I note that Jewish law recognizes these reasons.
But oh, if only America celebrated life.
© Arlene Kushner. This material is produced by independent journalist Arlene Kushner.