Pnina Lifshitz-Aviram and Yehezkel Margalit,
From Roe v. Wade to Dobbs v. Jackson – Between Women’s Rights Discourse and Obligations Discourse,
33 Health Matrix
Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol33/iss1/6
Recently, the U.S. Supreme Court published its decision in Dobbs v. Jackson Women’s Health Organization overturning the landmark abortion case, Roe v. Wade. In 1973, two groundbreaking abortion decisions were handed down by the same Court – Roe v. Wade and Doe v. Bolton – recognizing a woman’s fundamental constitutional right to obtain an abortion until fetal viability. The ensuring nationwide judiciary recognition of women’s basic rights was abruptly shaken by the Dobbs v. Jackson’s ruling that “the Constitution does not confer a right to abortion.” Dobbs’ reversal of these prior cases has created a legal, political, and public upheaval. Indeed, the element of the human rights discourse in the context of the abortion debate has been among the most prevalent, dominant, and polarizing in the modern era. Concomitantly, recent decades have witnessed a strengthening of the obligations, commitments, and responsibilities discourses, particularly in family law, including the issue of the parent-child relationship. The aim of this article is to reconsider the interface of the abortion and the point of view of these new discourses, which have been notably missing in the entirely of the modern discussion of the abortion debate, in the context of the Dobbs v. Jackson decision. We seek to bridge the current lacuna between these new discourses and the context of abortion by differentiating between pregnancy as the result of consensual sex or nonconsensual sex. In the first scenario, we claim that the new family-centric discourses should be paramount, whereas in the latter, the women’s rights discourse should govern, drawing on the unique Jewish ethical conception of obligations to justify this differentiation. In essence, we seek to bolster the new and challenging civil discourses with the “strong” traditional Jewish ethical viewpoint. This discussion, which may be considered a partial revitalization of Roe v. Wade, can prove valuable in normatively resolving at least one aspect of the abortion, thereby determining a new compromise Archimedean point for women’s rights discourse and the abovementioned discourses.