Passover, Abortion, and Rabbi Ruth Bader Ginsburg


Justice Ginsburg praises the heroic women who defied Pharaoh’s authority to save the Hebrews’ baby boys from death. Apparently, she does not have an eye for contemporary parallels.

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Supreme Court Justice Ruth Bader Ginsburg has co-authored a genuinely moving tribute to the women of Passover, praising their vital roles in saving the life of the infant Moses and their resistance to the oppressive, killing commands of their male-dominated society.

The very short piece, entitled “The Heroic and Visionary Women of Passover,” appears in Chag V’Chesed, a publication of American Jewish World Service. It is co-authored with Rabbi Lauren Holtzblatt, the wife of one of Justice Ginsburg’s law clerks, Ari Holtzblatt.

As you may recall, the Book of Exodus opens with the story of an Egyptian pharaoh who remembered not Joseph, the great Hebrew patriarch who had saved the Egyptians from starvation and brought his family, and people, to Egypt in friendship. The new pharaoh had become concerned about the growing strength of the Jewish race. So he put slave drivers over the Jews to crush their spirits with hard labor, forcing them to build cities and pyramids. Nonetheless, the population of the Hebrew people continued to grow, and pharaoh feared that they would rise up against him. Accordingly, he ordered the two midwives who usually helped the Hebrew women deliver their babies to kill all male Hebrew children as they were being born.

The midwives did not obey. They told the pharaoh that the hearty Hebrew women were giving birth before either of the midwives could arrive. So pharaoh issued a new command: every newborn Hebrew boy must be taken at birth and thrown into the Nile to die. The girls would be allowed to live.

When Moses was born, his mother hid him for three months, then placed him in a basket of reeds covered with tar, and placed the basket in the tall grass near the edge of the river. Moses’s sister observed as pharaoh’s daughter found and saved the baby and eventually adopted him as her own son.

Partners of God

Justice Ginsburg and Rabbi Holtzblatt champion the bravery and defiance of the women involved in the rescue of the lives of Hebrew babies, including Moses, praising their principled refusal to cooperate in the genocidal killing spree ordered by the rulers of the day, promulgated for purposes of keeping a subject population under the thumb of their oppressors and limiting that population’s growth. Hear Ginsburg and Holtzblatt:

In Exodus, darkness attends the accession of a new Pharaoh who feared the Israelites and so enslaved them. God alone lights the way out of the darkness in Genesis. But in Exodus, God has many partners, first among them, five brave women. There is Yocheved, Moses’ mother, and Shifra and Puah, the famous midwives. Each defies Pharaoh’s decree to kill the Israelite baby boys. And there is Miriam, Moses’ sister . . .

Finally, there is Pharaoh’s daughter Batya, who defies her own father and plucks baby Moses out of the Nile. The Midrash reminds us that Batya knew exactly what she doing: When Pharaoh’s daughter’s handmaidens saw that she intended to rescue Moses, they attempted to dissuade her, and persuade her to heed her father. They said to her: “Our mistress, it is the way of the world that when a king issues a decree, it is not heeded by the entire world, but his children and the members of his household do observe it, and you wish to transgress your father’s decree?”

But transgress she did.

These women had a vision leading out of the darkness shrouding their world. They were women of action, prepared to defy authority to make their vision a reality bathed in the light of the day.

Justice Ginsburg and Rabbi Holtzblatt commend the telling and retelling of the Exodus story at Passover, which begins today, Friday, April 3. This year, it begins on the same day as the Christian observance of Good Friday. Ginsburg and Holtzblatt especially commend the life-saving bravery of women who dared to defy the prescribed norms of the day:

On Passover, Jews are commanded to tell the story of the Exodus and to see ourselves as having lived through that story, so that we may better learn how to live our lives today. The stories we tell our children shape what they believe to be possible—which is why at Passover, we must tell the stories of the women who played a crucial role in the Exodus narrative. …

Retelling the heroic stories of Yocheved, Shifra, Puah, Miriam and Batya reminds our daughters that with vision and the courage to act, they can carry forward the tradition those intrepid women launched. While there is much light in today’s world, there remains in our universe disheartening darkness, inhumanity spawned by ignorance and hate.

… The Passover story recalls to all of us—women and men—that with vision and action we can join hands with others of like mind, kindling lights along paths leading out of the terrifying darkness.

A Sad Irony

It is tempting simply to leave the story there. Justice Ginsburg’s and Rabbi Holtzblatt’s retelling of the story is moving, with its lessons of moral courage and willingness to risk oneself, and to defy civil and family authority, in defense of human life.

But there is a sad irony in Ruth Bader Ginsburg’s co-authorship of this fine moral lesson. For Justice Ginsburg is also perhaps the nation’s foremost public judicial figure embracing an unqualified constitutional right to human abortion—literally, a right to kill living human embryos and fetuses, right up to the point of birth—in the name of furthering women’s advancement and prestige within civil society and, incredibly, even in the name of keeping down the numbers of a disfavored population.

Remember Ginsburg’s infamous New York Times interview from a few years back? Speaking with chilling candor, Justice Ginsburg expressed her views about the Court’s decision (rendered before she had been appointed to the Court) in the case of Harris v. McRae, the 1980 case in which the Court had upheld the Hyde Amendment, forbidding Medicaid funding of abortions. In doing so, the Court rejected the idea that the right to abortion embraced in Roe v. Wade included a right to public funding of abortion for poor women. “The ruling about that surprised me,” Justice Ginsburg said.

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

In the full context of the interview, it is difficult to avoid the conclusion that Ginsburg was not speaking of a point of view that differed from her own, but one with which she was in full agreement. Part and parcel of the Roe regime was the special need to protect the “right” of abortion for the sake of checking the growth of “populations that we don’t want to have too many of.”

Pharaoh was more direct and brutal, to be sure. But the similarity in sentiment is difficult to miss.

Resisting Pharaoh’s Command

Remember the partial-birth abortion cases? In Stenberg v. Carhart (2000), Justice Ginsburg joined the majority in embracing the judicial recognition of an “abortion” right to kill a living human child in the process of being born. The procedure is hard to distinguish from pharaoh’s initial command to the midwives of the Hebrew women: kill the baby as it is coming out of the womb.

Justice Ginsburg went out of her way to emphasize that it does not matter how the human fetal child is killed—and that those emphasizing the gruesomeness, cruelty, and inhumanity of the partial-birth killing were imposing an unconstitutional “undue burden” on abortion precisely because they were seeking to make such a point.

In Gonzalez v. Carhart (2007), the Court narrowly upheld a different, federal-law partial-birth abortion ban, but only on the premise that there must always be some other available way to kill the fetus.  That was not good enough for Justice Ginsburg, who wrote for four dissenting justices that the decision was an “alarming” interference with a woman’s “control over her [own] destiny” and her right to “participate equally in the economic and social life of the Nation.”

And of course, most recently, in Burwell v. Hobby Lobby Stores (2014), decided just last summer, Justice Ginsburg authored a vitriolic dissent from the majority’s finding of a statutory religious freedom right not to be compelled to participate, against religious conscience, in the provision of abortion drugs designed to kill a living human embryo.  Such protection for religious conscience, Ginsburg insisted, interfered with the fundamental right to reproductive freedom and autonomy, as articulated in the Court’s abortion jurisprudence.

Obviously, Justice Ginsburg does not consider abortion, partial-birth abortion, or chemical abortion to be the equivalent of an unjust society’s commands to kill all-male Hebrew children, either as they are being born or, later, to throw them into the Nile to die. Obviously, Justice Ginsburg does not consider conscientious resistance to compliance with today’s laws requiring cooperation with such killing to be comparable to the morally commendable conscientious resistance of the courageous women of Passover.

On the contrary, Justice Ginsburg considers those who today seek to defy unjust laws requiring complicity or acquiescence in such killing not as heroes, but as villains seeking to interfere with the “rights” of others. Those who stand on religious faith principles, and seek to invoke constitutional or statutory protections of religious liberty to resist acting in furtherance of actions they consider killing, are, to Justice Ginsburg, irritating resisters of a social good—a good that in her view includes keeping in check the growth of populations we would not want to have in too great abundance.

But it is at least worth pausing to ask, on this weekend of Passover, whether the heroes of Exodus that Justice Ginsburg and her co-author so movingly commend—women who resisted the social mores of their day, the commands of civil authority, and the criticism of men in authority in order to stand firm in their faith, resist an unjust law, and save the lives of babies condemned to death—might not stand in the same moral and legal position as the pro-life women and men she so strongly condemns today.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE). He is co-author, with Luke Paulsen, of The Constitution: An Introduction, due out from Basic Books on May 5, 2015.

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