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It hardly comes as news that America's National Council of Jewish Women (NCJW) has embarked on a drive to galvanize its constituents to oppose the nomination of Judge Samuel A. Alito, Jr. for a seat on the US Supreme Court. The NCJW, like some others, views judicial nominees through a tunnel called Roe, and has a track record of opposing any nominee - including, most recently Chief Justice John Roberts -they suspect might have the inclination to overturn the blanket enshrinement of a "right" to abort. That suspicion now attaches to Judge Alito, and so, in classic "been there, done that" fashion, the NCJW is publicly flogging him with coat hangers.
Agudath Israel of America, for its part, would be happy to see Roe v. Wade overturned. By devaluing potential human life, the decision has helped devalue all human life, which Judaism cherishes deeply. The concept that a woman has an unfettered "right" to terminate her pregnancy is entirely foreign to Jewish thought and law. If Judge Alito would in fact shift the balance of the Supreme Court toward a less hospitable attitude toward abortion on demand, we would consider that a positive development.
That the NCJW has a contrary view is disappointing to us, but by now hardly surprising. What is novel about this particular anti-Alito campaign, though, and most perplexing, is the extent to which a group purporting to represent Jewish women is exhibiting such a hostile attitude toward an institution that most Jewish women, I think, would agree needs strengthening: marriage.
Among the anti-Alito material NCJW offers its supporters is a boilerplate letter to send members of Congress. In it, Judge Alito is accused of having "ruled to severely restrict a woman's constitutional right to abortion..."
The reference is clearly to a 1991 case, Planned Parenthood v. Casey, in which Judge Alito, as a federal appellate judge, penned a dissent (the case eventually was appealed to, and decided, by the US Supreme Court).
That case challenged a Pennsylvania law requiring a woman seeking an abortion to receive information about the fetus and the procedure, to wait 24 hours and, if married, to inform her husband of her decision.
The "severe restriction" to which the NCJW refers is apparently that latter condition, the subject of Judge Alito's dissent. The judge, basing his stance on earlier Supreme Court decisions, contended that a requirement to inform one's husband of a decision to terminate pregnancy, especially since the requirement did not apply in cases where there was fear of abuse, did not constitute an "undue burden" on a woman seeking to terminate her pregnancy.
ONE CAN agree with Judge Alito's interpretation of the "undue burden" standard or disagree with it (as the Supreme Court eventually did), but no reasonable observer would characterize a spousal notification requirement as "severely restrict[ing]" a woman's right to abortion.
If any philosophy lies in the judge's dissent to Casey, it was not about "a woman's constitutional right" but about marriage - to wit, that it matters. That is an assertion every Jewish group, every women's group - and certainly every Jewish women's group - should be applauding. By arguing that a state may legislate the notification of a husband (not a boyfriend, and certainly not a rapist) that his wife has decided to abort her - their - child, Judge Alito was, in a small way, resisting the societal trend of devaluing not only potential life but the institution of marriage.
It is an institution certainly under assault, and the toll has been considerable - in the Jewish community no less than in broader society, and in some ways even more.
The fact that Jewish women are marrying later than ever, if at all, resulting in a birth rate that falls short of replacement level, has contributed to a Jewish demographic crisis, as Professor Jack Wertheimer recently wrote in a recent, much-discussed article in Commentary. Many Jewish women claim that they would wish to marry earlier, and have more children, if they could only find like-minded Jewish men. But if the NCJW's hyperbolic attack on Judge Alito accurately reflects the state of mind of American Jewish womanhood, and if the bonds of marriage are so weak in the eyes of Jewish women that they feel their husbands are not even entitled to information about a planned termination of their child's nascent life, then how truly committed are Jewish women to marriage, childbearing and the Jewish future?
I, for one, don't believe Jewish women are so cavalier about these matters. I think the NCJW is misreading and misrepresenting not only Judge Alito but the constituency it claims to represent.
The NCJW - although one suspects the "J" in its name will squirm - is certainly welcome, like any citizen or group, to favor an unfettered right to abortion, and even to defend the widely-discredited notion that such a right lies hidden somewhere between the lines of the US Constitution.
But rather than blatantly misrepresent a man's record (and, subtly, a religious tradition's attitude), it might better advance the cause of women, and of Judaism, by recognizing and promoting the ideals of marriage and childbearing - ideals that clearly mean something to Samuel Alito.
The writer is director of public affairs for Agudath Israel of America.
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