America is at war. The Supreme Court justices’ reversal of their predecessors’ ruling concerning abortions’ constitutionality is set to jolt American society politically, religiously and culturally – and American Jewry cannot escape the impending turmoil.
America has been a blessing to the Jewish people. As historian Ben Halpern noted in his famous essay “America is Different” (1955), the US never had to emancipate its Jews because, unlike other countries, it never discriminated against them.
Yes, there were university-admission quotas, country clubs barring Jews, and the antisemitism of prominent figures like Charles Lindbergh and Henry Ford. It all came to an end 77 years ago.
The Holocaust, which made Americans appreciate Jewish suffering; and Israel’s establishment, which made them admire Jewish resilience, jointly sparked a golden era in which American Jewry thrived the way no other Jewish community did in the Diaspora’s 2,600 years.
Now, as the court ruling hints, this golden era is approaching its end.
Judaism's theological distinction
THE FIRST, though least significant, Jewish distinction in the abortion debate is theological. Judaism – even in its most rigid version – doesn’t share classical Christianity’s definition of life’s beginning.
Unlike the Catholic view as phrased by Thomas Aquinas, that a fetus assumes a soul once it moves (or “quickens”); and unlike the Protestant view as phrased by John Calvin, that the embryo “is already a human being, and it is an almost monstrous crime to rob it of life which it has not yet begun to enjoy” – Jewish law rules that if an embryo risks its mother’s life it is to be killed, because the mother’s life “takes precedence” (Mishna Ohalot 7:6).
Jewish law generally sees the embryo’s legal status as an evolution that follows its biological development. That is why the Talmud says that “until 40 days from conception the fetus is merely water” (Yevamot 69:2), and that is why rabbinical law ruled that murder applies only to the born.
Judaism, in short, is not as militant on abortions as Christianity. All this would have been academic had the American debate not been fed by Christian activists, both Catholic and Evangelical. And if this is the case with Orthodoxy, which is hardly one-fifth of American Jewry, it is doubly so with the rest, who are predominantly liberal in general, and on abortions in particular.
American Jewry is thus at odds with much of American Christianity and the Supreme Court.
On the face of it, this is but one ruling on one issue, and thus carves no chasm between the court and the Jews. Moreover, one can argue that the court made no statement on abortions per se, but merely said the constitution does not sanction them.
Sadly, that is not the case. The court was driven not by hermeneutics, but by ideology. As noted by jurist Orit Kamir, the justices who refused to interpret the constitution expansively on abortions, were the same justices who 24 hours earlier did just that when they struck down a New York State law that restricted the right to carry guns in the public sphere.
The US Supreme Court, then, is unabashedly ideological. Can this be argued the other way? Of course it can, and indeed has been, especially concerning the Roe vs Wade ruling, which conservatives have claimed for half a century was driven not by concern for the constitution, but by liberal conviction.
From the Jewish viewpoint, what matters now is not that the court is politicized, but that American Jewry and the Supreme Court are on opposite sides of the arena. This is symbolized by the high share of Jews among the ruling’s dissenting voices – two out of three – and the absence of Jews among the other six.
It takes neither a pollster nor a political scientist to realize that this is a fair reflection of most American Jews’ position on abortion. It also takes no expert to realize that this Supreme Court is here to stay, and might next challenge American Jews on other sensitive matters, like religion’s place in public schools.
Even so, this institutional situation would not have indicated the end of a Jewish era if not for its two other dimensions – the political and the social.
The wider showdown
THE COURT’S move is part of a much larger showdown. Half the people who backed this ruling were Donald Trump’s appointees.
From an American viewpoint, this is where the tragedy lies. It would be one thing if the ruling had been hotly contested, but isolated. It’s an entirely different thing if the nation is already divided on a host of issues, from gun control to governance, and the court, rather than represent the nation’s unity, enters the trenches and joins the civil war.
From a Jewish viewpoint, this is unprecedented and alarming. Yes, there were Jews in America during the Civil War, and they fought on both sides. However, there were fewer Jews in the US back then than there are now in Ramat Gan, and they couldn’t even dream of current American Jewry’s cultural prominence, academic leadership, economic presence and political sway.
This success happened while, and because, American society was cohesive and optimistic, and American Jewry was part of the American consensus, a beneficiary, emblem and engine of the values Americans shared and their leaders upheld.
Now American Jewry, like the Supreme Court, is part of an unfolding civil war.
Are all Jews on the same side of this rift? They are not. However, they are perceived as positioned on one side, and in terms of their sense of security, it really doesn’t matter which side that is. What matters is that the deeper American society splits, the more a critical mass of Americans will think that “the Jews” – are on the other side.
The writer’s bestselling Mitzad Ha’ivelet Ha’yehudi (The Jewish March of Folly, Yediot Sefarim, 2019), is a revisionist history of the Jewish people’s political leadership. He is currently a fellow at the Hartman Institute.