Our Best Stuff From a Big Week at the Supreme Court

What will become of Roe v. Wade?

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Happy Saturday! I hope you had a wonderful Thanksgiving and didn’t miss this newsletter too much. After a very quiet holiday last year, we had family in town and multiple days of celebrating. It was a lovely time, except for a few hours on Saturday when my beloved Ohio State Buckeyes lost to Michigan for the first time in a decade. 

The biggest story of the week was the Supreme Court arguments in Dobbs v. Jackson Whole Women’s Health, as the court considers the constitutionality of a Mississippi law that bans abortions after 15 weeks. The court could decide to uphold the law and overturn Roe v. Wade and Planned Parenthood v. Casey, the 1992 decision that upheld Roe but changed the framework for acceptable abortion restrictions from one based on  trimesters to one based on fetal viability. Or it could uphold the Mississippi law on narrow grounds and leave Roe and Casey in place. (The court could also strike down the Mississippi law. Given that there are six conservative justices, and based on reporting from the arguments, however, I would not bet my kids’ college savings accounts on that outcome.)

I mention this not to jump in with my own punditry on the matter. For one thing, few people write as eloquently on this issue than our own David French. Plus, he and Sarah, who are both lawyers, are far better equipped to discuss the jurisprudence. (And in fact they did in a fantastic episode of Advisory Opinions. Listen!)

No, I bring it up because of a tweet I saw earlier this week. Karen Swallow Prior, a professor at Southeastern Baptist Theological Seminary, shared a letter she got after writing from a pro-life perspective for the New York Times. The letter writer said “With luck every woman in your family is raped and pregnant as a result, then forced to give birth to a psychopath’s baby.”

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  1. Avatar photo
    Julie from Texas

    Rachael, thank you for such gracious comments about how we discuss difficult topics. I have witnessed an entirely different topic in the world of my career be approached with that same vitriol that you describe and also concluded that it wasn't worth my time and effort to engage with people who are blinded by their own zeal. The rest of us, though, can have productive debate and conversation, especially when we look for areas of unity where we can take action and improve our society and world.

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    Dennis

    Outstanding Weekly. Thanks.

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    Stephanie

    Thank you to Rachael, for sharing the links to the articles by Caitlyn Flanagan and Will Saletan, and the piece in the NY Times.

    The Times article in particular was amazing and captured nuances that a lot of the pro and anti abortion comments here have never mentioned.

    Re: the Flanagan article, I recall that Lysol douches and abortions were a real thing, and I heard about them when I first worked in a hospital in the 1970's. There were even some nonprofessional co-workers (think housekeeping staff) spreading around tips about douching with Lysol.

    Will Saletan has summarized lots of polling pro and con abortion and so his article is useful. But I don't think it can make that much of a difference in elections due to gerrymandering and how those voters forming the pro-choice majority are spread so thin over election districts.

    I also wonder if a pro-choice political candidate would sway voters by invoking the prospect of the nanny state with regard to abortion, when most people are preoccupied with Covid and their own kitchen-table issues.

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    Pboyd

    The NY TIMES article doesn't seem to be a pro abortion stance so much as a lesson about the necessity of birth control. That shaming happened to my daughter while she was dating her future husband in high school at his church. Irreparably marred her future relations with her in-laws. But in such an honest writing about her past, I am confused, why the default to abortion as a birth control message? Is the author still in denial that perhaps that may be a better option? To not wanting the sin of preparing for sex rather than dealing with larger sin of aborting? (And I am using her language of sin. I don't think birth control is a sin.) I would love to read a thoughtful commentary on this passage from the Bible, which has always confused me. It seems to be pro-abortion on one hand. An adulterous wife has to drink a concoction of bitter herbs, which will cause her to miscarry and thereby "cleanse" her. It is from Numbers. I will paste this directly from BIBLE GATEWAY site if anyone is interested in reading it.
    Numbers 5:11-28
    New International Version
    The Test for an Unfaithful Wife
    11 Then the Lord said to Moses, 12 “Speak to the Israelites and say to them: ‘If a man’s wife goes astray and is unfaithful to him 13 so that another man has sexual relations with her, and this is hidden from her husband and her impurity is undetected (since there is no witness against her and she has not been caught in the act), 14 and if feelings of jealousy come over her husband and he suspects his wife and she is impure—or if he is jealous and suspects her even though she is not impure— 15 then he is to take his wife to the priest. He must also take an offering of a tenth of an ephah[a] of barley flour on her behalf. He must not pour olive oil on it or put incense on it, because it is a grain offering for jealousy, a reminder-offering to draw attention to wrongdoing.

    16 “‘The priest shall bring her and have her stand before the Lord. 17 Then he shall take some holy water in a clay jar and put some dust from the tabernacle floor into the water. 18 After the priest has had the woman stand before the Lord, he shall loosen her hair and place in her hands the reminder-offering, the grain offering for jealousy, while he himself holds the bitter water that brings a curse. 19 Then the priest shall put the woman under oath and say to her, “If no other man has had sexual relations with you and you have not gone astray and become impure while married to your husband, may this bitter water that brings a curse not harm you. 20 But if you have gone astray while married to your husband and you have made yourself impure by having sexual relations with a man other than your husband”— 21 here the priest is to put the woman under this curse—“may the Lord cause you to become a curse[b] among your people when he makes your womb miscarry and your abdomen swell. 22 May this water that brings a curse enter your body so that your abdomen swells or your womb miscarries.”

    “‘Then the woman is to say, “Amen. So be it.”

    23 “‘The priest is to write these curses on a scroll and then wash them off into the bitter water. 24 He shall make the woman drink the bitter water that brings a curse, and this water that brings a curse and causes bitter suffering will enter her. 25 The priest is to take from her hands the grain offering for jealousy, wave it before the Lord and bring it to the altar. 26 The priest is then to take a handful of the grain offering as a memorial[c] offering and burn it on the altar; after that, he is to have the woman drink the water. 27 If she has made herself impure and been unfaithful to her husband, this will be the result: When she is made to drink the water that brings a curse and causes bitter suffering, it will enter her, her abdomen will swell and her womb will miscarry, and she will become a curse. 28 If, however, the woman has not made herself impure, but is clean, she will be cleared of guilt and will be able to have children.

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      Rosey

      "...I would love to read a thoughtful commentary on this passage from the Bible, which has always confused me. It seems to be pro-abortion on one hand."

      I apologize in advance for this reply's length, and will defer to the credentialed Torah scholars who I hope will weigh in here.

      Where to begin? The Torah (Jewish Bible) text is known as the Trial of the Sotah, of a wife suspected by her husband, who must bring the accusation to the Court, at the Temple in Jerusalem. It is known as "The Trial of Restoration", as one primary objective is to restore the mutual marital fidelity between a husband and wife. It is remarkable for several reasons, the most notable being it requires G-d to personally participate openly in the trial by physically killing the wife who vows falsely about an adulterous relationship (noting in Torah law only married women can commit adultery technically), or blessing her with children if she is barren. Her consort is also killed (by heaven) with the guilty, in case anyone supposes the Torah protects misogynists. G-d will uncover His hiddenness to save a marriage when the nature of the crime prohibits valid witnesses, as it is forbidden for a male adult to be secluded in an enclosed space with a married women not his wife. Technically speaking, to observe this makes one an accomplice. There is an argument that observing a married woman seclude herself with a man not her husband is sufficient is evidence. This careful respect for marital fidelity remains the practice among typically orthodox Jews today, although the Sotah trial has been suspended since the second temple's fall.

      The Christian text in St. John 8 is a remarkable reference to this trial. Recognizing Israel was a theocracy at the time, Torah law (as practiced then) was criminal law. Government officials wanted to know if the Nazarene, himself, thought himself the Messiah for obvious political considerations. They contrived a test to see if he would exercise summary court authority, which only a King can do, by judging a capital case solo, by himself. They presented a Sotah caught "in the very act" to see what he would do. This occurred at the Temple. The text says he wrote in the sand, however there is no place to write in sand in Harod's stone-floored temple. Some say there is a "Sotah stone" that is lifted up, exposing sand underneath (recall sand is required for the Sotah procedure). Regardless, the Nazarene's writing in this sand would be instantly understood by all Torah literate; that he intends to call for a Priest to conduct a Sotah trial if valid witnesses can testify. Given there are no valid witnesses for "caught in the act" and the penalty for false witnessing will be the same as intended for the accused -- death in this case, the text states the old all departed before the young, leaving the accused wife standing alone with him. An actual Sotah trial is a big deal. You're asking for G-d to "personally" participate in a court case. As the Nazarene determined there are no valid accusers, thus aborting a trial (pun), he states he will not judge her. The question of his Messiahship will not be addressed in this test. He saves her life by presenting her accusers with the mere possibility of conducting a Sotah trial. This trial was suspended about 400 years earlier because it only works if husbands are virtuous, which they were not apparently. Again, if the wife is found innocent, she is blessed with children if she is barren. Some say the trial was also suspended because desperate couples would stage this trial as a remedy barrenness. The Nazarene stated a few chapters earlier in the same text (5:19-21) that he came to "demonstrate" the Law and the Prophets (Written and Oral Torah), not abolish them -- which he most remarkably did in this passage, noting earlier manuscripts do not contain this story.

      As to any Torah text affirming abortion, all of my thirty years of Torah study concludes that's all but impossible. We are, at our core identity, a divinely created soul. Our raison d'être for being here, on this earth, includes incarnation into a human body to elevate this lowest of worlds and, by obedience to G-d's instructions (mitzvoth), connect G-dliness to this world. To elevate it an cause G-dliness to be revealed here. Abortion, absent a fatal assault upon the mother's body as ruled by a medically qualified court, is forbidden. The unborn child is considered a legal person subject to capital trial; meaning the unborn person may be killed in the act of killing his/her mother in the womb. This is applicable after 40 days from conception, technically, as before 40 days the product of conception is considered "water", but that's the extent of my learning (so I'll defer to any classically trained scholar). The Torah as taught from antiquity is unequivocally pro-life, even so far as suspending every law in the code to save a life (except for three enumerated exceptions), for "You shall live by the law, not die by it." Incidentally, the Talmud records that the procedures for a capital trial are so strict and merciful that a Torah court case that led to a capital punishment conclusion once in 70 years was considered a "bloody" court. Indeed, abortion as we meaning today, as a woman's right, is the perfection of rebellion against our Purpose, beginning with a man having an orgasm (where it must begin) inside a woman not his wife. All this sadness stops with men learning and insisting men elevate themselves to becoming husbands, and cherishing the virtue of women generally, and their wife's and daughter's well being in particular.

      Again, I apologize for the long reply. From the Torah's perspective, from my personal conclusions and study, abortion except to prevent the murder of the mother is a perfection of rebellion.

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        Rosey

        One other observation. "There is nothing new under the sun." The Trial of Restoration is one remedy in the Torah that addresses the problem where there are no legally qualified witnesses to alleged sexual relations between an unmarried couple. The Torah's solution to a "me too" accusation is to get the only other witness with any standing involved -- God. And in the Torah's case, God seems to be saying -- for a virtuous wife He will openly help. For all others, it seems adults are responsible for keeping and protecting marital sexual intimacy.

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          Pboyd

          Thank you for both of these replies. Years ago, I canceled my membership in the ACLU when they became so pro-abortion. I received a long letter from someone there who stated that according to Jewish law, the baby only became a human upon birth. ( I am paraphrasing here as it was over 40 years ago.) That always struck me as odd, but not being Jewish didn't know anything about it. I am glad to know the men are held responsible. It has always bothered me that people know the Biblical admonition for "women to obey your husbands," but few mention the following verse. I believe the husbands have the harder portion.
          Again, from Gateway Bible site.
          Ephesians 5
          24 Wives should obey their husbands in everything, just as the church people obey Christ.

          25 Husbands, love your wives, just as Christ loved the church people. He gave his life for the church.
          Thank you again.

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    Show Jay Janney the 🚪!

    Abortion is a very emotional topic. Those who have read my comments know my (now deceased) wife was diagnosed with cancer while she was pregnant. She delayed chemo so our son could be born. Watching how she handled it was humbling (her courage is inspiring).

    I'd add the year she spent at home caring for our son was a joy, but also a sense of wonder. She drew strength from him, courage to fight the cancer. She died from a virus due to no immune system from treatment, not from the cancer.


    But watching her made me pro-life. She loved her baby enough she was willing to risk sacrificing her life for it. That left a very deep impression on my views.

    But I hope no one else has to arrive at being pro-life via the life experiences that led me to it.

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      Cantorz

      I'll start by stating that I'm pro-life. I appreciate you sharing your story and offer my deepest condolences for having lost your spouse so young. It takes a lot of strength for you to go on in the face of such unimaginable grief. And I have nothing but reverence for the courage and selflessness of your wife's decision to put your child's life before her own.

      As touching and inspiring as your experience is, I don't think such a personal anecdote provides sufficient evidence for why others should not also have the freedom to decide. While we all hope to never be confronted with such a choice, we also all hope to be as brave as she was if we are. But some people aren't going to be as brave as she was, and I don't think legislating away their choice is the appropriate response. I think others need to be allowed to come to their pro-life positions as you did: through experience, consideration, and reflection. Not because the law forbids abortion.

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      Julie from Texas

      I'm so sorry for your loss. I can't imagine how hard that must have been. Thanks for sharing your story. And how wonderful that your son came into the world!

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        Show Jay Janney the 🚪!

        Thank you for your kind words.

        It was very tough, but also a blessing. Pam was the most amazing woman I ever met. Cancer drew my wife and I closer together, and we had a wonderful life. to borrow a line from Michael Lewis' "the undoing project"; our marriage "was a wonderful book, it was just a short book".

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        1. Butch Kamena

          That resonates so much with me, Jay. I'm pilfering that quote, because it is exactly how I feel about my late wife and our marriage.

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    Dustin Anglin

    One of the reasons I love The Dispatch is that I often *don't* agree with everything opinion shared by its writers, but I still find the discourse thoughtful, intellectually honest, and respectful. Being challenged is part of a healthy opinion diet, and I have found it has helped me become better at stopping and considering different opinions rather than just waiting to bulldoze others with my own :)

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  7. Richard Palzer

    While I agree that McCarthy has a headache in having to deal with the likes of Gosar, Boebert, and Greene--those off-the-wall embarrassments--I've little sympathy for him and the rest of the Republican leadership. Continuing to enable Trump's influence, to the point of repudiating the few members with the courage and moral compass to stand against him, should smear the Party's credibility. That it hasn't demeans the Party even further. Bring back the Party of principle: Dump Trump.

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    J. Eric

    Thanks for sharing your journalistic experiences. It’s disheartening

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    Dave Conant - MO

    Another great wrap-up Rachael. TDW would be worth reading just for your intros and today's is one of the best.
    In respect of abortion, it's a shame that Congress abrogated their responsibility as legislators and put the Court in the position it's in. Now it will take a Constitutional amendment to fully resolve the issue and no one sees that in the cards.

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    Bill B

    Good reminder Rachel. I will try to be a little less, well…. “me” in the future when arguing the pros and cons of the abortion issue.

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