The seismic waves following the U.S. Supreme Court decision to overturn Roe v. Wade reached our shores quickly, and Israelis, traditionally following any trend in America, are now wondering whether this dramatic move might impact them as well.
At first glance, it seems that this is a purely American business, with no ramifications for Israel. We have been watching from afar the American divide widen, especially during the Trump era, so this recent stroke only adds a legal seal to an existing societal malaise. Certainly abortions in Israel would not be affected: Pregnant women here easily get approval from a termination of pregnancy committee, and this, supposedly, doesn’t seem to change.
What should worry Israelis is the way this gigantic move occurred, positioning Americans on the horns of a dilemma, between what they want and what is legal.
What should worry Israelis, however, is the way this gigantic move occurred, positioning Americans on the horns of a dilemma, between what they freely want and what is legal. According to a Reuters/Ipsos poll conducted before the Supreme Court released its decision, about 71% of Americans — including majorities of Democrats and Republicans — say decisions about terminating a pregnancy should be left to a woman and her doctor, rather than regulated by the government.
There is no need to be an expert of the U.S. Constitution to know that it starts with “We the People,” laying down the principle that the people are the source of all governmental power (later amendments incorporated Afro-Americans, women and young people, not included in the original “We the People”). In my layman opinion, then, the recent decision reversed not only Roe v. Wade, but also the basic democratic idea that it’s the people, not the government, who decide what’s best for them. Our wise Talmudic sages taught us that ”We do not issue a decree [gzera, in Hebrew] on the public, unless a majority of the public can bear it.” One wonders how Americans would accept this gzera.
How could this revolutionary event happen? Here is another paradox: Former President Trump, who lost to President Biden by a popular margin of some seven million votes, had nevertheless managed to appoint three conservative Justices who turned the balance in the Supreme Court. Thus, the former president, who ranks as one of the most disliked in U.S. history, managed to carve a future the majority of Americans generally oppose.
Here is why Israelis should take notice and be alarmed. In Israel, at least for the time being, Supreme Court judges have been selected by a committee which has managed to balance the legal and judicial excellence of the candidates with the political inclinations of the existing government. This worked pretty well, and contributed to the high prestige of the Israeli Supreme Court both in Israel and globally. It’s true that there has been a decline in the trust of the public in the Supreme Court over the years, but according to the 2021 Israeli Democracy Index, “56% of the public agrees that the [Israeli] Supreme Court must have the power to strike down laws passed by the Knesset if they violate the basic principles of democracy. In other words, a substantial share of the public still believes in the court’s constitutional function in Israeli democracy: to defend constitutional principles, even if in opposition to the politicians.”
So, unlike what has just happened in the United States, the Israeli Supreme Court seems to placate the fears of Israelis of being stripped of their democracy, in short, of tyranny. Except that the Israeli Supreme Court and all other law enforcement agencies have been under constant attack, being orchestrated by no other than former – and perhaps future – Prime Minister Benjamin Netanyahu. Unlike his buddy Donald Trump, Netanyahu can’t appoint Justices directly, although only last week he raised his hand in the Knesset for a motion calling for appointing them directly by the government. Luckily, this motion failed.
Netanyahu has a personal interest in weakening the courts and law enforcement agencies: He is being tried these days for corruption charges. Being smarter than Trump, however, he doesn’t do it himself, but leaves the job to his mouthpieces, who vow to fire police investigators, the Attorney General and judges, all in order to rescue Netanyahu from the rule of law.
If, in the United States, the Supreme Court has positioned itself in opposition to what most Americans think and want, in Israel the court is still perceived by most people here as the guardian of their democracy. Israelis, however, shouldn’t take it for granted. This guardian needs to be guarded itself.
Uri Dromi was the spokesman of the Rabin and Peres governments, 1992-1996.