Moment Debate | Would a Ban on Abortion Curtail Jews’ Religious Freedom?

INTERVIEW WITH DANYA RUTTENBERG

Would a ban on abortion curtail Jews’ religious freedom? | Yes

Would a ban on abortion curtail Jews’ religious freedom?

Yes. Abortion bans are predicated on assumptions about when life begins that have specific Christian theological assumptions baked into them. Not the assumptions of every Christian denomination—many of them are extremely supportive of abortion rights. However, claims about when life begins are theological claims, and that impacts Jews, Muslims, secular people and many others who may understand this biological process differently. The Texas law SB 8, which the Supreme Court recently declined to block, says you can sue people who aid and abet an abortion, which is a liability for rabbis who, following Jewish law, might advise someone to get an abortion.

Are there circumstances where Jewish law permits or even requires abortion?

In the simplest, most clear-cut case, Judaism mandates abortion in order to save the life of the pregnant person. That’s completely uncontroversial. The Mishnah says that if someone is having difficulty in labor and you have to decide whose life to save, if the fetus’s head hasn’t emerged, it is permitted to go in and cut the fetus in pieces. Maimonides defined this as a negative commandment—to not take pity on the “pursuer,” one who might take a life—and extended the permissibility of abortions in such cases to those using medication.

Claims about when life begins are theological claims, and that impacts Jews and many others who understand it differently.

Many reasons to have an abortion are deemed halachically valid. The Talmud states that for the first 40 days after conception, the fetus is considered “mere water,” maya b’alma, which, as we count pregnancy today, is approximately 7-8 weeks of
gestation—which is when about two-thirds of abortions take place. After that, the fetus is considered “a limb of its mother” until birth. Exodus 21:22-23 establishes that the fetus doesn’t have the status of a person, since a man who causes a miscarriage by striking a pregnant woman is punished with civil damages paid to the woman’s husband. More recently, in 1740, Yehudah Ibn Ayyash, head of the religious court in Algiers, is asked for a ruling or teshuva on the practice of women in the city who perform medication abortions, making the decisions themselves. He concludes it’s acceptable. Jacob Emden, writing around the same time, permits an abortion for a married woman who had an affair, and says abortion can be permitted even of a legitimate fetus if there is “great need” or to save the woman from “an associated evil that could cause her great pain.” In 1913, another well-known authority, Mordechai Winkler, equates protecting mental health with protecting physical health as a reason for abortion. Ben Zion Chai Uziel says an abortion may be acceptable “even for a slim reason, such as to prevent disgrace.” This has been mainstream halacha for a long time.

Does Jewish law support a pro-choice position, then?

A better term for it might be abortion justice. We are commanded to pursue justice and create a just society, so working to make sure abortion is accessible to everybody is critical. Our tradition believes in creating a world where every child who is born is supported and cared for. In a broader sense, economic justice and racial justice are Jewish values, and access to abortion is intertwined with them. It allows people to have dignity and the possibility of changing their own lives.

What would happen to those cases in a post-Roe v. Wade environment?

Some suggest a religious exemption for Jews. But it’s not that simple. A religious accommodation might help a tiny percentage of Jews who know how to fill out the paperwork and have the privilege and the access and the connections to say, “I’m Jewish enough to get an abortion.” But even then, I’ve been hearing stories of people in Texas with ectopic pregnancies being advised by doctors to drive 10 or 12 hours to neighboring states to get an abortion, because doctors in Texas are so terrified of performing abortions and getting busted. Technically, the Texas law has a provision that if your life is in danger, as it is from an ectopic pregnancy, you can have an abortion. But people are nervous about losing their medical licenses, so unless you’re bleeding out in the ER, they won’t do it. If you begin banning abortions, this is the world we’ll have. People will die. We have a profound Jewish obligation to prevent that—for everybody.

Are Americans debating abortion within a Christian framework?

It’s deeply Christian, in ways I think people haven’t fully absorbed. People, even some Jews, have become so used to certain kinds of language and rhetoric that we don’t even necessarily see the influence of evangelical Christian concepts. It’s like the old joke about one fish asking, “How’s the water?” and the other fish saying, “What’s water?”

What would a Jewish framing of the abortion debate look like?

Are we preventing unnecessary suffering? Are we centering people’s agency and dignity? Are we each created in the divine image and provided with the agency and dignity to make our own call on how to navigate the body we are issued? Or does somebody else get to decide for us?

INTERVIEW WITH SHLOMO BRODY 

Would a ban on abortion curtail Jews’ religious freedom? | No

Would a ban on abortion curtail Jews’ religious freedom?

No. Abortion in general, at least abortion at will, is not mandated by Jewish religious law. There are notable exceptions: If the mother’s life is in danger, then she might be required to have an abortion. Some argue that it’s in the best interest of the Jewish community that abortions stay legal and safe, in order to give women the freedom to have abortions in cases where it is mandated or permitted by halacha. For this reason the ultra-Orthodox Agudath Israel have historically submitted briefs in Supreme Court cases with the pro-choice camp so that abortion will remain safe, legal and, at least in their community, rare.

They are prioritizing their specific interests over their general values. There may be a certain advantage to that approach, but I don’t think it’s a question of religious liberty, just a question of what role the government should play.

Are there circumstances where Jewish law permits or even requires abortion?

There’s a widespread consensus that women may and sometimes must have an abortion when their life or health is in danger. In other limited cases, opinions are mixed. The clearest indication that we don’t attribute full human status to a fetus is that feticide is not treated like homicide in the Bible. A murderer can be subject to the death penalty. A person who kills a fetus is not, and Exodus 21 seems to punish such an action via tort law. It’s bad, but far from the equivalent of killing someone.

Does Jewish law support a pro-choice position, then?

If by pro-choice we mean the woman has full autonomy over her body and can decide at will not to keep a pregnancy, I do not think Jewish law supports that. Jewish law recognizes a special status for a fetus: It’s not a full-fledged human being, but in general it should be protected. One should violate Shabbat in order to save the life of a fetus. But Jewish law does not share the Catholic view that full human life begins at conception. And this allows for some flexibility to permit abortions in certain limited circumstances.

What would happen to those cases in a post-Roe v. Wade environment?

If Roe v. Wade gets fully overturned, which I doubt will happen, presumably abortion then goes back to the states. Many will preserve very liberal abortion laws. Others will be more restrictive, but I predict they will still permit abortions when the mother’s life is in danger, and probably make exceptions for rape or incest or other cases where Jewish law mandates or permits abortion.

If Roe v. Wade is overturned, the Jewish community must introduce nuance into the debate.

A stricter ban, such as a personhood amendment granting the fetus full human rights from conception, would be different and unwise. The Jewish community would need to work against that because it would create ambiguities about the nature of a fetus that could indeed harm our ability to get an abortion when necessary. Maybe I’m naïve, but I think it’s highly unlikely that the court or the legislatures would do that. America has a deep-rooted tradition of respecting religious practices. I hope and anticipate that whether in the Supreme Court or state legislatures, those
with well-grounded arguments that their religion permits some abortions would have access to exemptions.

Are Americans debating abortion within a Christian framework?

It’s unfortunate that the “religious perspective” as portrayed in public discourse is the Catholic or Southern Baptist view that life begins at conception, which is not the traditional Jewish view. But abortion also shouldn’t be framed as a religion-and-state issue. Many (not all!) on the pro-life side are inspired by religion but believe their views on abortion are also rooted in reason or philosophy. It would be best if we turned the conversation more toward what’s the best way to decide among competing visions of life and liberty in a diverse and pluralist society. In general, in democratic societies, that’s done through the legislatures.

What would a Jewish framing of the abortion debate look like?

As with much political discourse, the abortion debate is polarized. Judaism offers a more nuanced perspective. Polling has regularly shown Americans are much more conflicted on this issue than the extreme positions that are portrayed. They may think abortion is sometimes reasonable, without saying it should be taken lightly or allowed in all circumstances. They may recognize a fetus is not a full-fledged human being but is still clearly something we care about. At the same time, Jewish law does not believe life begins at conception and does not see feticide, even late in pregnancy, as equivalent to homicide. If Roe v. Wade is overturned, the Jewish community must try to introduce some of this nuance into the debate.

From a Jewish perspective, it would also be wise for the states that limit abortion to increase access to contraception. Although the issue of contraception is complex in Jewish thought, it’s very different from abortion. We’d much prefer people use contraception rather than abortion as birth control.