The United States Supreme Court made the unprecedented move in late June to take away the federal right to abortion granted 50 years ago in Roe v. Wade. In its majority opinion in the case of Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito said, “The Constitution does not confer a right to abortion; Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives…The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” The functional result of the Dobbs decision will be to place the legislation of abortion squarely in the hands of the states. And while some states will continue to keep abortion legal, others, including Tennessee, have trigger laws that will quickly make abortion illegal in any case.
The decision was not unexpected, following in the wake of a historic leak to Politico in early May, but it has left much of the country, and much of the Jewish community, reeling. A recent event in Nashville, hosted by the National Council of Jewish Women (NCJW), highlighted the grief, anger, and confusion being felt locally. Dr. Nancy Lipsitz, an obstetrician/gynecologist in private practice in Nashville, says the Dobbs ruling saddles her and other practitioners with the additional task of interpreting the nuances of the law, “I have spent hours reading the bill, attending webinars, and discussing issues with attorneys. There are many gray areas and neither attorneys nor I have all the answers. The bill is vague and leaves much to speculation.” Lipsitz adds that Tennessee’s “trigger ban,” which restricts abortions almost entirely, will be effective in mid-August. This measure will make performing an abortion a felony and subject doctors to up to 15 years in prison. “Once the trigger ban goes into effect, all abortion is criminalized,” says Lipsitz, “There are no exceptions. Rape, incest, children who are pregnant after rape or incest, victims of sex trafficking, a woman carrying a fetus with severe physical anomalies that will not survive after birth, and mental health disorders.”
Despite what Lipsitz says is little guidance for doctors, on the issue of mental health, the legislature in Tennessee was very clear. “If a woman is so desperate for an abortion that she might kill herself, she is still not allowed to obtain an abortion in Tennessee. If a woman was raped and suffers from trauma by having to carry the pregnancy to term, she cannot obtain an abortion. The legislature thought about this, considered it, and wrote this extra clause down. An affirmative defense cannot be made for mental health reasons. A person’s brain, considered by science to be a body organ susceptible to organic illness, is not included in the category of impairment of major bodily function.” An Affirmative Defense of Prosecution, according to Lipsitz, is a process whereby a doctor can document breaking the law for very specific, and hope to evade prosecution. “I have now learned that this means that I need to clearly document and state that I am indeed breaking the law, and why I am breaking the law. I need to report the pregnancy termination to the office of vital records at the state level. And even in these conditions, I might still be prosecuted.” She is also concerned for her nursing staff, medical assistants, nurse anesthetists, and anyone else who assists in an abortion.
Jews view abortion from the perspective of the mother, and therefore total bans like the one in Tennessee are in direct violation of Jewish law. According to Rabbi Jessica Shimberg, who was an organizer of the NCJW event, there are three main values to consider: when life begins, how decisions around healthcare are made, and abortion itself. “As to the first idea, when life begins, Jewish law says that a fetus is part of a woman’s body and does not have the status of ‘personhood.’ Life begins with a viable birth. When the head emerges and a first breath is taken,” she says. When making health decisions, Shimberg says again, the decision should support the mother’s physical and emotional health. “Adding to suffering and emotional pain is not where we want to go.” And since Jewish law assigns personhood at the moment of the first breath, she says, “That makes abortion a health issue, not something for social policy making.”
Groups like NCJW are working to ensure Jewish values are represented in the debate around reproductive freedom. Erin Coleman is Co-President of NCJW Nashville Section, and she is also a criminal defense attorney. She says “We, as Jews, are taught to treat every human with dignity. This decision takes away that humanity and shows a lack of respect for a woman’s ability to make decisions for herself.” And as Jews, she says we have a responsibility to treat our neighbors with the same dignity and respect. But those most likely to suffer under the rollback of Roe, she says, are the underserved people in the community. “I work with people who are the most vulnerable in Nashville, and the impact is something we can’t even calculate at this point,” she says, “This will perpetuate continuing poverty for women who can’t climb out of poverty. There is no social safety net in place to support the children who are being forced into life.” Coleman says the Dobbs decision also flies in the face of the concept of “stare decisis,” or settled legal precedent. “So much of what affects our lives comes from elected officials, many of whom have no understanding of the finer points of law,” she says, “In the legal system, we look to the judiciary to interpret and make sense of the laws. The one thing we rely on is past precedence, and the Court completely threw it out.” She says it is imperative organizations like NCJW work to help people in Tennessee gain access to safe, legal abortion. NCJW has created a fund to assist with expenses for people who must travel to neighboring states.
The Jewish Federation and Jewish Foundation of Nashville and Middle Tennessee is also providing programming to educate about the Jewish approach to abortion. Deborah Oleshansky, Director of the Jewish Community Relations Committee, says, “The JCRC will make this issue a top priority. The state’s total ban on abortion is a complete violation of Jewish law and is a government overreach to control our lives. Why should the government get in the middle of the most personal family issues?” JCRC programs will delve into the various aspects of the abortion issue over the next several months and features experts from health care, law, and public policy to help the Jewish community understand the impact and, according to Oleshansky, hopefully, become activated.
As the impact of the Dobbs decision continues to evolve, doctors like Nancy Lipsitz must make decisions in real-time, often with little to spare. She says she seriously considered moving to a state where abortion is legal and she could practice medicine the way she believes it should be practiced, but decided to remain in Tennessee, committed to caring for her current and future patients. Her routine now includes weekly consultations with attorneys to understand the nuances of the law. She says she draws strength from the lessons taught by her grandmother, and the fight of previous generations of women, “All my life, I have benefited from the prior generations of women who have fought for women’s reproductive and civil rights. I’m here today because of the struggle and hardships they endured and did overcome. My grandmother Deena Lipsitz fought for suffrage in St. Louis in 1919, attending conventions and speaking up. And showing up. Now it’s our turn to secure the necessary rights for our daughters and for the generations that come after us.” And she is worried. “I am worried about access to medication for miscarriage and ectopic pregnancy, I am worried about women who don’t have the means to travel out of state even if they wanted to. I am worried about women trying at-home abortions and the grave and sometimes fatal consequences that might ensue. Women no longer have agency over their reproductive health and unfortunately, restrictions may change over time. An attorney in Knoxville flat out declared: No one is coming to save us.”