The Texas "heartbeat Bill"

Abortion--for now--is all but illegal in Texas, and the Supreme Court has said--for now--that it's okay. This is not a sermon about abortion. It is a sermon about the Court's dereliction of its duty to protect the Constitution and to abide by the proper procedures for legal change. Our texts and tradition help us frame our own response to the Court's increasing favorability toward political action over against judicial prudence.

Called to Account: The US Supreme Court and the Texas Heartbeat Act
Parashat Nitzavim
 
For most people in the state of Texas, access to a safe and legal abortion is now impossible. A new law, called the Texas Heartbeat Act,[1] bans all abortions after a fetal heartbeat is detectable, which usually happens around six weeks into pregnancy. The bill was passed in May and came into effect on September 1 despite its flagrant disregard for the constitutionally protected right to an abortion before fetal viability.[2]
 
There is no doubt whatsoever that this new law violates the US Constitution according to the decisions of the Supreme Court in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992). In fact, the Texas law contains the following statement:
 
The legislature further declares that it would have enacted this chapter … irrespective of the fact that any provision … of this chapter were to be declared unconstitutional….
 
In other words, the Texas state legislators baldly announce their intention to create a law they know is unconstitutional. They believe, of course, that Roe and Casey were wrongly decided and that the right to an abortion is not protected by the Constitution. That’s why the organization Texas Right to Life said, “we are encouraged this ruling positively foreshadows how the Supreme Court may rule” in an upcoming case that might overturn those pivotal decisions.[3]
 
And no one should be surprised that the Texas statehouse has joined more than a dozen legislatures[4] across the nation that have also passed so-called “fetal heartbeat bills.” What’s different here is that while all those other laws have been rightly declared unconstitutional, the United States Supreme Court this week went out of its way to allow the Texas bill to become law.
 
This is not a sermon about abortion. Rather, it’s about the Supreme Court’s cowardly abandonment of its responsibility to uphold the law of the land.
 
It is a fundamental principle of rabbinic Judaism that the ruling of a court must be respected at least until another ruling replaces it. In other words, if Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas believe that the US Constitution doesn’t protect the right to an abortion, they have a responsibility to say so in the fullness of a Supreme Court ruling. To knowingly and willingly permit an unconstitutional law to come into effect makes a mockery of the judicial process they have sworn to uphold.
 
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This week’s Torah portion contains a fascinating and significant verse. It’s one of the few marked by special dots placed over eleven of its letters, and the Rabbis have understood it as a singular expression of Judaism’s respect for judicial law.
 
הַנִּסְתָּרֹת לַיְיָ אֱלֹהֵינוּ וְהַנִּגְלֹת לָנוּ וּלְבָנֵינוּ ,עַד-עוֹלָם לַעֲשׂוֹת אֶת-כָּל-דִּבְרֵי הַתּוֹרָה הַזֹּאת.
 
The hidden matters are for the Eternal our God, but the revealed matters are for us and our children forever to do all the words of this Teaching (Deut. 29:28).
 
The verse suggests that God will hold us accountable for “the hidden matters,” crimes committed accidentally or in secret. But we the people are responsible for dealing with “the revealed matters,” transgressions committed in full view of the public. While one might interpret this as a defense of vigilantism, our tradition says instead that we uphold “this teaching,” הַתּוֹרָה הַזֹּאת, by respecting the rule of law.
 
The authors of the Texas Heartbeat Act, however, don’t agree. They seem perfectly comfortable with the conscription of citizen attorneys general in the enforcement of an unconstitutional law. The act states:
 
Any person … may bring a civil action against any person who performs or induces an abortion… [or who] aids or abets the performance or inducement of an abortion.
 
This unprecedented application of an obscure legal maneuver empowers literally any person to sue anyone who has had anything to do with a prohibited abortion in Texas. The law explicitly takes enforcement out of the hands of the state and the courts and hands it directly to anyone who’s willing to pick it up.
 
This is not what Deuteronomy has in mind.
 
The 12th-century rabbi known as Rashbam, who was Rashi’s grandson, gives the standard interpretation. What does it mean that the revealed matters are “for us and our children?” He answers: לַעֲשׂוֹת דִּינֵי עוֹנְשִׁין עַל פִּי עֵדִים, “to administer just punishments on the testimony of witnesses.” In other words, we are responsible for setting up courts and adhering to their pronouncements.
 
Whether we like it or not, our tradition emphasizes that the word of the court is law—even, in theory, if the court is wrong. Maimonides, perhaps history’s greatest Jewish sage, writes: “We were commanded to base a legal decision upon the testimony of two proper witnesses, even though they may have testified falsely.”[5] He says that if the witnesses were fit for testimony, then the judgment stands even if they lied because “The hidden matters are for the Eternal our God, but the revealed matters are for us and our children.”
 
So what do we do if we find out that a court was wrong or based their ruling on irreputable sources? Our tradition insists that a new court ruling must be issued. Nearly two thousand years ago, the Mishnah taught “a court can nullify the words of a fellow court if they are greater in wisdom and number.”[6] And Maimonides goes even further, saying that later courts can be valid even if they’re not wiser or more numerous than their predecessors.[7] The law can be changed and should be changed if it’s wrong — always by using the system available to us.
 
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And that is the process that the US Supreme Court, our most sacred legal institution, turned its back on this week. With full knowledge that a law was unconstitutional, five justices relinquished their responsibility to enforce the law of the land.
 
What about the other four justices? Sonia Sotomayor said it best: “The Court’s order is stunning. … It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”[8] She—along with Justices Breyer, Kagan, and Roberts—affirms that the Supreme Court has a job to do. By allowing this law to come into effect, the majority has spurned its duty to uphold the rule of law.
 
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The mishnah I quoted a moment ago speaks to the sacred Jewish value of preserving dissent. וְלָמָּה מַזְכִּירִין דִּבְרֵי הַיָּחִיד, “Why do we record the words of the individual among the many, when the law is according to the words of the many?  Because if a [later] court sees the words of the individual, it may rely on them.”
 
Sometimes courts get it wrong. In our people’s long history, we’ve seen it again and again. But it is a testament to the Jewish faith in human reason, guided by moral intuition, that we abide in our commitment to the system of laws that holds society together.
 
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Our Torah portion concludes with God’s adjuring the People of Israel:
 
19I call heaven and earth to witness against you this day: I have put before you life and death, blessing and curse. Choose life — if you and your offspring would live — 20 by loving the Eternal your God, heeding God’s commands, and holding fast to [God]…
 
We stand, each of us, in the cosmic court, with heaven and earth called to offer their testimony of our conduct.
 
In the days between this Shabbat and when we read this Torah portion again, on the morning of Yom Kippur, let us commit ourselves to the right and righteous pursuit of justice. Let us resolve to work in the months and years ahead to strengthen the integrity of our Constitution. In these days of repentance and preparation for the Days of Judgment and Awe, let us commit ourselves once again to the noble exercise of the protections of law.
 

[1] See full text of the law here: https://legiscan.com/TX/text/SB8/id/2395961.

[2] The Supreme Court in Planned Parenthood of Southeastern Pa. v. Casey (1992) held:
 
It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

[3] https://www.texasrighttolife.com/supreme-court-denies-abortionists-last-ditch-plea-against-texas-heartbeat-act/

[4] Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, and Tennessee.

[5] Mishneh Torah, Foundations of the Torah 7:7
 
We were commanded to base a legal decision upon the testimony of two proper witnesses, even though they may have testified falsely, yet, because we consider them to be proper, their testimony must stand upon their fitness, and concerning this and like matters it is said: "The secret things belong unto the Lord our God; but the things that are revealed belong unto us and to our children" (Deut. 29.28); and it is said: "For man looketh on the outward appearance, but the Lord looketh on the heart" (I Sam. 16.7).
 
 
משנה תורה, הלכות יסודי התורה ז׳:ז׳
 
נִצְטַוֵּינוּ לַחְתֹּךְ אֶת הַדִּין עַל פִּי שְׁנֵי עֵדִים כְּשֵׁרִים וְאַף עַל פִּי שֶׁאֶפְשָׁר שֶׁהֵעִידוּ בְּשֶׁקֶר הוֹאִיל וּכְשֵׁרִים הֵם אֶצְלֵנוּ מַעֲמִידִין אוֹתָן עַל כַּשְׁרוּתָן. וּבַדְּבָרִים הָאֵלּוּ וְכַיּוֹצֵא בָּהֶן נֶאֱמַר הַנִּסְתָּרֹת לַה' אֱלֹהֵינוּ וְהַנִּגְלֹת לָנוּ וּלְבָנֵינוּ (דברים כט כח)  וְנֶאֱמַר כִּי הָאָדָם יִרְאֶה לַעֵינַיִם וַה' יִרְאֶה לַלֵּבָב (שמואל א טז ז).

[6] M. Eduyot 1:5.

[7] MT Laws of Rebels 2:1
 
רמב"ם הלכות ממרים פרק ב
ב"ד גדול שדרשו באחת מן המדות כפי מה שנראה בעיניהם שהדין כך ודנו דין, ועמד אחריהם ב"ד אחר ונראה לו טעם אחר לסתור אותו הרי זה סותר ודן כפי מה שנראה בעיניו, שנאמר אל השופט אשר יהיה בימים ההם אינך חייב ללכת אלא אחר בית דין שבדורך.

[8] https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.