Jewish Lens on Roe v Wade
Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Today, the Supreme Court of the United States overturned Roe v. Wade and the protected right of women in this country to get legal, safe abortions. I want to state clearly that the decision to allow states to prohibit abortions, including late-term abortions, violates the First Amendment by preventing Jews from the free exercise of our religion, a religion that requires abortion up until delivery if the fetus is threatening the life of the mother. This is something that as Jews, if not as people who support women’s right to choose, we should be outraged; and deeply concerned about. Let me explain why.
The idea that a fetus has a soul from conception and therefore the rights of personhood is a belief rooted deeply in Christianity. The “innocent life” mantra of those who oppose abortion rights reflects a Christian worldview in which adults are undeserving sinners and unborn fetuses are the most deserving of care because they haven’t yet sinned. This is decidedly NOT a Jewish view.
Judaism has a very different ethic on this matter. In Judaism, both the fetus and the mother are deserving of life, but the value of the life of the fully alive, conscious mother outweighs the value of a potential human being. That is why the Torah describes in Exodus that if a person pushes a pregnant woman so that she miscarries, it is not murder but rather property damage. (Exodus 21:21-25) Based on this passage, Jewish law holds that if the fetus threatens the life of the mother, terminating the pregnancy is required by Jewish law up until birth.
Our tradition is rather explicit about this. The Talmud teaches that “if she is pregnant, until forty days from conception the fetus is merely water.” (Yevamot 69b) The great commentator Rashi puts it more succinctly when he writes, “lay nefesh hu” – it is not a person.
In order to be disturbingly clear on this matter, the Talmud includes this graphic passage:
(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:
If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person's life for that of another.
Far from the Christian idea of innocence, Jewish law categorizes a fetus that is threatening the health of the mother as a “rodef”, someone who is chasing a person in order to attack them. Just as we have an obligation to self-defense against an attacker, we have the obligation to terminate a pregnancy that is attacking the mother.
Don’t get me wrong: traditional Jewish law is not “pro-choice.” Rather, it demands the termination of the pregnancy even during delivery. This means that abortion laws that limit late-term abortions are a direct impingement on Jewish religious freedom. The Supreme Court has long permitted such limitations based on the concept of viability, but Jewish law disagrees. Whether or not a fetus is viable, the mother’s life takes precedent over the potential life, particularly because the mother might have a family to care for and her death will cause great harm to the living children, whose value is also greater than that of the potential child.
In this, Jewish ethics is very close to the Feminist Care Ethics of feminist philosophers like Virginia Held who also see a fetus as a potential life and a potential relationship, but the existing relationships between the woman and her family and friends take ethical precedence over the potential relationship with the child that is coming.
The Reform Movement, as we know, is not rooted in a legalistic view of Judaism, but does root our ethics in Jewish values and laws. Along with traditional law that requires abortion in some cases, Reform Jewish ethics holds that being created b’tzelem Elohim, in the image of God, means that we have the ability to decide right from wrong and that therefore, the woman who is pregnant is the ultimate “decider” of what happens to her body.
That is one of the reasons the Reform Movement has long been an advocate for abortion rights. In a 1935 resolution, Women of Reform Judaism (WRJ) expressed support for the lifting of bans on the dissemination of birth control literature. The URJ continued its commitment to advocating for reproductive health care access and rights with resolutions passed in 1967, 1975, 1981, and 1990, stating in 1975 that "in any decision whether or not to terminate a pregnancy, the individual family or woman must weigh the tradition as she struggles to formulate her own religious and moral criteria to reach her own personal decision…We oppose all constitutional amendments that would abridge or circumscribe this right." The Central Conference of American Rabbis went on record in 1967, 1975, 1980, 1984, 1994, 1995, 2008, and 2017 to affirm the "right to terminate a pregnancy" and stating that the CCAR "opposes amendments and legislation which would abridge or circumscribe this right."
It is true, and you may have seen some ultra-0rthodox Jews fighting along with Catholics and Evangelical Christians to end the right to abortion. This is a deal made for political expedience – not Jewish law – as these same communities share the goal of gaining government funding for private religious education
Mainstream Orthodox does oppose abortion if it is mostly a matter of convenience, but absolutely supports the legal right to get an abortion. Several well-respected Orthodox rabbinic authorities have made arguments that “threatening the life of the mother” should be greatly expanded to include financial and emotional harm. Here are some examples:
· Rabbi Jacob Emden in his Responsa She’elat Ya”vetz 1:43 (1739-1759) writes, “The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from an evil associated with it that would cause her great pain…”
· Rabbi Mordechai Winkler in Levushei Mordekhai, Hoshen Mishpat 39 (1913) writes, “Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.”
· Rabbi Ben Zion Chai Uziel in his Responsa Mishaptei Uziel 4:46 (1947-1964) argues that “it is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent disgrace, then we have precedent and authority to permit it.”
· Rabbi Eliezer Waldenberg in Tzitz Eliezer 13:102 (1978) makes clear that Jewish law, “permits arrangement for a Jewish woman to abort a fetus where it is needed for the mother’s health, even without it being a matter of saving the mother’s life… …even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. ...And suffering and emotional pain in great measure are greater and more painful than physical pain.”
· The very influential modern Orthodox rabbi, Rabbi Aharon Lichtenstein, in “Abortion: A Halakhic Perspective,” Tradition 25:4 (1991) writes, “Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.”
Reform Jewish ethics closely follow Rabbi Lichtenstein’s arguments that kevod ha-beriyot, shalom bayit, and tza’ar are compelling reasons to permit abortion even in cases where the mother’s life is not threatened.
Moreover, we know that a lack of access to abortion doesn’t mean they don’t happen; it just means they don’t happen safely, in regulated clinics. Instead, they happen in back alleys and basements. This also results in the deaths of many women, so I believe that Judaism calls on us to resist laws that violate our highest moral value: pikuach nefesh, saving a life.
Jews have long been leaders in the fight for reproductive freedom and abortion rights. Jewish women have been greatly overrepresented in the struggle to gain these freedoms, and I believe this is because the underlying Jewish ethic is so different than Christian ethics in this case. Before Roe V. Wade, rabbis were also very active in the fight, and in working to create underground networks to get women safe legal abortions.
Regardless of Roe’s legal flaws, should the Supreme Court overturn that precedent, we must recognize that as a direct assault on the First Amendment and Jewish religious freedom. So often we use the term “Judeo-Christian” ethics and tradition, but on this issue and many others, there is really no such thing. Jewish ethics are profoundly different than Christian ethics, and on abortion, Jewish ethics are clear and have been for millennia. Regardless of what the Supreme Court decides, we must continue to be active and vocal in the fight to protect a woman’s right to choose. If it means fighting for legislation, and even an amendment to the Constitution, we must do so. We must do so to protect Jewish religious practice, but also to prevent American law from making essential religious decisions for our citizens.
Judaism is a religion of this life as it is lived, and we know that for so many women, particularly poor and abused women, their lives as they are lived makes access to abortion an essential right. As Jews, we should be proud of the clarity of our tradition on this difficult issue, on our giving priority and primacy of value to living people with consciousness, relationships, and responsibilities. I strongly believe that Judaism teaches us to love and value the woman who is pregnant, the person right in front of us, more than the potential relationship we might have with the child if it is born. We should always value the actual people in front of us more than the idea of a life. That is how Jewish law has always remained grounded in real life. As the Torah teaches us, the laws of right and wrong are not up in heaven somewhere, but right here on earth, in our bodies, in our mouths and our hearts that we might know them. From a Jewish perspective “Choosing Life” means choosing to protect the right to safe and legal abortions. The Supreme Court is now allowing states to prevent us from the free exercise of our religion. Shame on them.