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Virtual Talmud

Over the coming weeks, much time, energy, and breathless news coverage will be devoted to divining how Samuel Alito would rule on abortion as a Supreme Court justice–a subject on which he will offer no clues if he can help it during his confirmation hearings.

That’s sad, because it has made the confirmation process for one of the most solemn and powerful positions in the land into an exercise in posturing (the senators) and obfuscation (the nominee)–the opposite of the substantive dialogue one might hope for. But at some level, this say-as-little-as-possible game is inevitable in the current climate, where abortion is such a high-profile, hot-button issue that any comment, however innocuous, is going to send seismic disturbances through the thoroughly entrenched battle lines on both sides of the issue.

Pro-life, Pro-choice. The terms are code words for so much that is read into them, two diametrically opposed positions that reduce the debate over the complex issue of abortion into simple black and white. Which it is not: While I fully support the right of a woman to control her reproductive freedom, including obtaining a safe and legal abortion, I also recognize the real pain and tragedy that usually are at the heart of the decision to terminate a fetus.

It’s tension recognized by the American people, as evidenced in a recent poll of the highly regarded non-partisan Pew Forum on Religion & Public Life, showing that only 29% of respondents support overturning Roe v. Wade and that 70% express concerns about the morality of abortion. A tension that makes perfect sense according to the lived experience of real people on both sides of the issue, who recognize the personal circumstances and complexities that lie at the heart of any decision about whether to carry a fetus to term. A tension implicit in the Jewish approach to jurisprudence, which recognizes that law is not some pristine, hermetic system that never takes into account personal circumstances but is instead rooted in the real lived experience of those whom it governs.

And a tension completely obscured by this circus of a nomination process.

My personal hope is that, if elevated, Judge Alito will approach abortion-related cases with an open mind, as he has promised. And I hope he will approach all cases with this same sense of openness and weigh each case not based on ideology but rather on its merits. As it says in Leviticus 19:15: “You shall not commit corruption in justice… [rather] you shall judge your fellow in righteousness.”

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