Warning: Roe is just the beginning

Warning: Roe is just the beginning

Anyone, particularly anyone in the Jewish community, who feels elated by the apparently imminent demise of 1973’s Roe v. Wade decision needs to take a closer look at Associate Justice Samuel Alito’s leaked draft opinion. It signals a coming assault on what is supposed to be our constitutional right to privacy.

Alito proffered the absurd notion that if the U.S. Constitution does not explicitly grant a right, that right does not exist. As he put it, “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…, including the Due Process Clause of the Fourteenth Amendment.”

The word “abortion,” of course, appears nowhere in the Constitution or the Fourteenth Amendment. All the Due Process clause says is, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Constitution says nothing about what kind of education a child is entitled to receive, or whether education is even a right. In fact, if we are to go by James Madison’s notes on the Constitutional Convention, education was not even considered by the delegates. It was left up to the individual states.

After Alito’s draft was leaked, at least one radical conservative voice—Peter Brimelow, a former editor of the National Review who now runs a white nationalist website called VDare—called for the overturning of 1954’s historic Brown v. Board of Education, which ended racial segregation in public schools. Said he, “Next stop, Brown v. Board!”

That is not an off-the-wall possibility. As Politico reported in 2019, for example, “For more than a year, most of President Donald Trump’s judicial nominees wouldn’t give a clear answer when asked if Brown v. Board of Education…was correctly decided.” That only changed in May 2019, when the Justice Department, prodded by a fed-up Sen. Tim Scott (R-South Carolina), began warning President Trump’s judicial nominees that Republicans, as well, would oppose them if they did not testify that Brown was correctly decided.

Brimelow also took aim at another ruling he wants the court to overturn, this one involving freedom of the press—1964’s New York Times v. Sullivan, in which the Supreme Court required people suing for libel to prove that false statements about them were made intentionally and maliciously.

Only two days after Brimelow’s attack on Brown, Texas chimed in with an attack of its own when Gov. Greg Abbott said his state would likely challenge a Supreme Court ruling—Plyler v. Doe—that went against Texas in 1982. That ruling overturned a Texas law that denied the children of undocumented immigrants the right to a public education. States, the High Court said in 1982, were required to offer free public education to all children, regardless of who they were.

Given Alito’s assertion that if it is not specifically mentioned in the Constitution, it is not a guaranteed right, Abbott told an interviewer: “I think we will resurrect that case and challenge this issue again.”

Republicans have already signaled that if they obtain a majority in Congress in the coming midterm elections, a national abortion ban is at least “possible,” according to Senate Republican Leader Mitch McConnell. As he told USA Today, “If the leaked opinion became the final opinion…[Congress] certainly could legislate in that area.”

Among other things, a national anti-abortion law would enable states to make it a crime for a citizen to cross state lines to seek an abortion anywhere in the world. Some Texas lawmakers already are considering such a travel ban, it was reported on Monday. “I think I can speak for myself and other colleagues that align with my policy beliefs—we’ll continue to do our best to make abortion not just outlawed, but unthinkable,” is how Republican state Rep. Briscoe Cain put it to the Texas Tribune. Among other moves, Cain wants Texas to criminalize donating money to pregnant women to help pay for their travel costs when they seek an abortion in another state.

This also puts religious rights of minorities in jeopardy. Jewish law, for one, requires abortions when the life of the mother is at risk, although authorities differ about how to judge risk in such cases. The late Rabbi Moshe Feinstein, as opposed as he was to most abortions, had a strong opinion about government interfering with abortion rights. As his son-in-law the late Rabbi Moshe Tendler once explained, Feinstein “felt very strongly that allowing government to legislate in any area of morals and ethics gives them a toehold in religion, and if you let them in a little bit, the government will begin to expand its role in this area and start legislating what is proper to teach and what is proper to do in a religious context…. For Rabbi Feinstein, the complete separation of church and state was absolutely necessary for the survival of any minority group.”

Above everything else, as already mentioned, the draft decision undermines the right to privacy. That right, Georgia State University law professor Anthony Michael Kreis explained, “evolved out of a right to contraception access. And from that we got a whole slew of sexual privacy rights….[If] you unravel one string in that fabric of doctrine, it could potentially unravel the other rights or at least open them up to greater attack.”

Such attacks are likely. A week ago Thursday, for example, Louisiana’s House Committee for the Administration of Criminal Justice approved House Bill 813. If passed, the law would grant constitutional rights to “all unborn children from the moment of fertilization,” and classify abortion as homicide. It could even criminalize all forms of contraception.

Last Friday, the assistant majority leader of Idaho’s House of Representatives, Republican Brent Crane, told an interviewer that if Roe is overturned the state legislature likely will tackle birth control next session, including banning the so-called morning after pill and the use of intrauterine devices.

Jewish law is outspoken about privacy rights. As the late onetime deputy president of Israel’s Supreme Court and Orthodox rabbi Menachem Elon explained, “Human dignity and freedom are fundamental values of the Torah and the rabbinic literature….” (See his essay, “Human Dignity and Freedom in Jewish Tradition” in Volume 9 of the Encyclopaedia Judaica 2nd edition, pages 585—588.)

We see this in many places in both the Jerusalem and Babylonian versions of the Talmud. The JT Tractate Bava Batra 2:3, for example, reports on a 4th century C.E. case in which a person sold his home and all the property around it but reserved a stone bench on that property for his continued personal use whenever he pleased. The new owner objected to that exception. The case came before Rabbis Yonah and Yosi bar Zevida, the leaders of the Sanhedrin in Tiberias at the time (it was known then as the Beit Va-ad). They ruled that the use of the bench by the previous owner violated the purchaser’s right to privacy.

A mishnah in BT Bava Batra 60a begins by saying that, “A person within a shared courtyard may not install a door opposite another door or [install] a window opposite another window” because it would allow a person in one house to see into the other person’s house, or see what that person was doing in the courtyard itself, thereby violating that person’s privacy.

According to Elon, “Jewish law even from its earliest beginnings developed a remarkable body of doctrine around the concept of hezzek r’iyyah (injury caused by seeing). This concept extends the right of privacy…to include protection against surveillance or observation from outside.” (See his discussion “The right to privacy,” in his Mishpat Ha-Ivri, Jewish Law in the State of lsrael, volume 4, pages 1856—1860.)

“This concept…,” Elon noted, “has its origin in considerations of ethics and morality. [The Torah, in Numbers 22—24] tells of [the alien cursor-for-hire] Balaam, who sought to curse the Israelites, but in the end blessed them….[BT Bava Batra 60a] comments on this: ‘What did he see? He saw that the entrances to their tents did not face each other, and this caused him to say: “These [people] are worthy that the Divine Presence should abide with them.”‘ The Israelites merited blessing because they set up their tents with the entrances not facing each other, so as to protect the privacy of the people.”

“Jewish law has something valuable to teach concerning the protection of the privacy of one’s home…,” Elon added. “The broad scope of the legal protection of the privacy of one’s home is exemplified by the Biblical injunction [see Deuteronomy 24:10—11) that a creditor may not enter the home of his debtor: ‘When you make a loan of any sort to your countryman, you must not enter his house to seize his pledge. You must remain outside, while the man to whom you made the loan brings the pledge out to you.’ One’s privacy should be respected even when a creditor exercises the right to collect a debt….”

Said Elon, “This moral-ethical impulse toward the accommodation of privacy in the midst of community ultimately became a legal norm in Jewish law.”

Sadly, it may cease to be a legal norm in American law if Republicans retake Congress in November’s elections. As Mitch McConnell told USA Today about abortion: “I don’t think it’s much [of a] secret where Senate Republicans stand on that issue.”

Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.