June 29, 2022

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. 

Now that Roe v. Wade has been officially overturned, and as it becomes clear that the pro-choice community doesn’t have any more of a plan on how to protect abortion rights than it did to protect Roe from its critics, it might be a good time for pro-choice believers to look for guidance from the strongest abortion rights advocate and most prominent feminist voice to ever serve on the Supreme Court.

So the question to now ask is this: WWRBGD? (What Would Ruth Bader Ginsburg Do?)

It’s not widely known that Ginsburg argued that the seven justices who voted in favor of Roe back in 1973 had acted imprudently and incorrectly. 

Given Ginsburg’s strong credentials on this issue, it’s not widely known that she had consistently argued for most of her career that the seven justices who voted in favor of Roe back in 1973 had acted imprudently and incorrectly. Ginsburg’s disagreement was certainly not with the substance of their ruling: she strongly believed in the importance of establishing national protections for a woman’s right to choose to have an abortion. She also vehemently opposed the Texas law that would have banned almost all abortions that became the basis for Roe.

But Ginsburg also strongly believed that the Court should have stopped there, and that by not just reversing the Texas ruling but by also using the case to establish a nationwide right to an abortion, the justices dramatically overstepped.  Her concern was that allowing the abortion debate to be resolved more gradually through the legislative process would have created a more durable and sustainable base of support for reproductive rights. And she worried that concluding such a divisive public argument so abruptly would balkanize the political landscape, effectively freezing public opinion on both sides of the issue. 

Ginsburg has been proven correct: that’s exactly what has occurred over the last 49 years, until the smaller but better organized and more committed side of the dispute reversed the Roe decision in terms just as absolute as the original verdict. In the five years before Roe was decided, 16 states, with 41 percent of the nation’s population, liberalized their abortion laws. So the political winds were clearly blowing in that direction. But after the Court acted, the battle lines hardened, and progress that might have continued as politicians who reflected the views of their constituents negotiated further change instead froze in place.

(Ginsburg also believed that the Court should have based its decision not on the right to privacy but rather that it impeded gender equality. By basing the argument on the Equal Protection Clause of the 14th Amendment, the decision would have been better protected from the argument that the conservative justices used last week in overturning it. But that is a discussion for another day.)

Legislative decisions tend to identify middle ground compromise. Judicial fiats – in either direction – are usually much blunter instruments. Instead of both sides accomplishing some of their objectives, both Roe v. Wade and this month’s Dobbs v. Jackson case left the defeated faction angry, resentful and hell-bent on revenge.

So here we are, almost half-a-century later, facing a political landscape on which abortion rights will be debated by elected officials on a state-by-state basis, just as Ginsburg had suggested would be a more productive path forward. Our politics are much more polarized today than back in the 1970’s and abortion has become a much more partisan issue over the last five decades. So resolving these issues legislatively will be much more difficult now than it would have been when the case was originally decided.

But even given the additional challenges of a more divisive political era, the future of abortion rights in this country will now be determined by legislators rather than judges, through protracted and difficult negotiation rather than judicial edict. This will be a long, slow, and often frustrating process. It will be accomplished through hundreds of low-profile elections and thousands of bills in state capitols around the country. But it also means that while neither side will realize absolute victory, neither will suffer complete defeat.

In Ginsburg’s own words:

“You just have to move forward and get to work, step by step, case by case.”

Dan Schnur is a Professor at the University of California – Berkeley, USC and Pepperdine. Join Dan for his weekly webinar “Politics in the Time of Coronavirus” (www/lawac.org) on Tuesdays at 5 PM.

Nostalgia is political suicide. When leaders of a nation long for the past, when they romanticize a version of yesterday to avoid addressing problems facing the nation today, it gives way to regressive policies that promise untold damage for their civilization. 

Nostalgia is an integral part of human nature. Many of us envision our childhoods with a golden glow — a time of innocence, of cohesion, of simplicity — when in reality, there was tumult we either were not aware of, or we were conditioned not to remember. The same can be said about politics. When Trump Republicans chant “Make America Great Again,” it is incumbent upon us to inquire of them in which time period America was “great.” Was it when segregation was legal? Or when women were mostly confined to domestic duties? Or when crack cocaine infested American cities? As justification for the invasion of Ukraine, Vladimir Putin has enshrined the memory of a “united” Soviet Union, which in his mind was glorious, but in the minds of ethnic minorities, was marked by repression and bloodshed. Every fascist campaign of the past has fetishized a previous period of utopia that never existed, such as Benito Mussolini’s belief that the Roman Empire was the height of Italy’s greatness, when in reality the life expectancy of an average Roman was twenty-five years old. 

Nostalgia is the death knell of any political movement. As Tony Kushner writes in his play “Angels in America,” “the world only spins forward,” and only those who keep their eyes forward — on the future, not the past — have the capacity to progress and to succeed. Those who keep their eyes on the past will drag their people down with them.  

Regrettably, given that the Jewish people are just like any other people, we are not immune to the seduction of nostalgia. The most obvious example of this is the deeply ideological movement to settle Israeli Jews in the West Bank, land the settlers call “Judea and Samaria.” Referring to the land between the Jordan River and the 1948 Armistice Line as the biblical Jewish realm reveals a longing to return to the days of David and Joshua, which for thousands of years in the Jewish imagination represented the zenith of political prowess and spiritual strength in The Holy Land. Yet Judaism in these days of old lacked the fundamental tenets of Judaism we recognize today. We had a kingdom, yes, but this kingdom was marred by corruption, war, disease, and fragmented peoples. The Hasmonean Dynasty, the last gasp of Jewish sovereignty before the founding of the modern State of Israel, was not characterized by glistening menorahs and common religious purpose as we understand it today. Instead, the Hasmoneans were power-hungry extremists who bore little good will for common shepherds and Jerusalemites whose beliefs were astronomically different from those of even the most religious Jews today. 

As such, any inclination to return to this period by means of land acquisition should be challenged outright.

Nostalgic Zionism is a breed of Zionism that is not satisfied with a fortified Jewish state in part of our historic homeland, where Jews of all stripes, secular and religious, can practice their God-given right to self-determination.

Nostalgic Zionism is a breed of Zionism that is not satisfied with a fortified Jewish state in part of our historic homeland, where Jews of all stripes, secular and religious, can practice their God-given right to self-determination. Nostalgic Zionism demands possession of the entire biblical land of Israel, if not on both sides of the Jordan River, then at least extending throughout lands where hundreds of thousands of non-Jews live. To achieve this, nostalgic Zionism is willing to sacrifice the democratic nature of Israel, and therefore Israel’s standing in the international arena, along with any future where sovereignty as we understand it today through the means of independent nation states is protected. Nostalgic Zionism lionizes Halacha, Jewish law, over modern jurisprudence. It values the aesthetic of Jewish power rather than the conditions that make Jewish power sustainable, and therefore, like nostalgic movements of the past, nostalgic Zionism works to undo the very project it claims to advance. 

Israeli author Tsvi Bisk captures the severity of this movement in his seminal, and very Zionist, 2015 novel, “The Suicide of the Jews,” in which a fictitious Jew of the future recalls with sorrow the political trends that not only destroyed Israel but also Jewish communities in the Diaspora. As Israel became more fascistic, settling the West Bank and positioning the Rabbinate in charge of most domestic affairs, young secular Israelis began dodging army service as if it were the plague, the number of Jews moving to the land of Israel from their respective countries plunged dramatically, liberal American Jews grew more comfortable in disowning the Jewish state, jeopardizing their own Jewish identities, and moral self-confidence within Israel dropped, leading to a massive flight of the educated, the artistic and the cosmopolitan. The Jewish state, the Third Temple, was no more, a consequence of the entitlement, resentment, and nostalgia of its leadership. 

“(Israel’s) initial successes having gone to its head, it was defeated by its misjudgments,” writes Bisk.  “It came to believe it was capable of doing anything it wished without any negative consequences, it was done in by ignoring the constraints of reality.” 

Fortunately, and obviously, this nightmare is not certain. The opposite of nostalgic Zionism is “futuristic Zionism,” known more commonly as liberal Zionism. It is this variant of the fight for Jewish self-determination that looks forward, not back. Liberal Zionism believes the land of Israel is essential for the existence of a Jewish state, but that the entirety of the land cannot come at the consequence of the state itself. Liberal Zionism worships the people of the land, not the land of the people. Liberal Zionism does not prey upon the nationalist, reactionary impulses of traumatized and hurting people in order to carry out nationalist, reactionary policies that hurt other people. Liberal Zionism will not sacrifice security, or integrity, or autonomy, but will also never sacrifice the Enlightenment-borne, modern principles that led to the very inception of Zionism to begin with.

The belief that territorial maximalism will redeem the Jewish people and prolong the existence of Israel is a farce. It will do the opposite.

The belief that territorial maximalism will redeem the Jewish people and prolong the existence of Israel is a farce. It will do the opposite. Bisk prophesizes that the death of Israel did not come from Iran’s nuclear program, or from the Palestinian “liberation” struggle, or from the nefarious double standards of the United Nations and European Union, but rather, it was “decades of poor life-style choices, of grand-strategic stupidity, overweening arrogance, illogical responses to real threats and provocations, and paranoid responses to perceived threats and provocations.” The root of this tragic twist of fate, Bisk makes clear, was the obsession with an idea of the past that never existed.

Blake Flayton is New Media Director and columnist for the Jewish Journal.