Context | Is Judaism Pro-Life or Pro-Choice?

Where you stand on most issues depends on where you sit. It’s a truism that dates back far before our polarized age. Women’s issues tend to pose this problem with particular clarity; you might say that it’s not so much where you sit as what set of organs you sit on. The Supreme Court nomination of Brett Kavanaugh, who if confirmed could provide the fifth vote to overturn Roe v. Wade, has twisted the volume knob back to “high” on one of the debates that most vividly demonstrates this phenomenon—the debate over abortion. And nowhere is it clearer than in a recent column by an Orthodox rabbi, Shlomo Brody, seeking to reassure rightward-leaning readers that, despite some inconvenient texts, Jewish law cannot be used as a reason to be pro-choice.

Gloria Steinem has famously said that if men could get pregnant, abortion would be a sacrament. This obviously oversimplifies; many of abortion’s most passionate opponents have been female, including, notoriously, the Roe of Roe v. Wade. And yet there are few debates whose framing is more dependent on the debaters’ identities and assumptions. My new favorite example is the recent Jerusalem Post column by Brody, who offers a thoughtful and scholarly exploration of the ways in which the abortion debate would look different if religious Jews, rather than religious Christians, were conducting it—along with an almost-successful attempt to debunk the idea that the actual answer might come out differently. Just when he’s about to close the sale, Brody inadvertently proves yet again that the abortion issue would look totally different if it were debated with women in the room rather than men.

Brody, a doctoral fellow at Bar-Ilan University Law School in Israel and the author of A Guide to the Complex: Contemporary Halakhic Debates, has been writing about this topic for a while. The Jerusalem Post column condenses a long 2016 piece in The Federalist. He seeks to combat—or at least, as the academics say, to complicate—the argument that Jewish law does not equate abortion with murder and therefore aligns more with the pro-choice than the pro-life position.

“Pro-life” efforts to ban abortion, according to this view,  impose a specifically Christian framework on a body of Jewish law to which it is alien. The stakes are high, since by this logic even Orthodox Jews, who trend conservative, should oppose overturning Roe v. Wade—since doing so would remove the protective umbrella that allows different religions to parse the abortion question as they see fit.

Certainly, even the most traditional halacha contains no suggestion of the conservative Christian idea that life begins at conception. Clear legal markers point the other way. In one well-known Talmudic reference, a man who strikes a pregnant woman and kills her fetus is required to pay a fine for damage to property; absent further circumstances, he is not held criminally liable, as he would be for destroying a human life. Another line of rulings testifies to the rabbis’ belief that a fetus younger than seven or eight weeks is “like water,” with little or no human status before quickening. If the fetus, then, has less than full claims on human life, the argument goes, its right to be born can be balanced against other values, such as the health of the mother or even of the community.

Brody delves into all of these references and adds more, including “leniencies” attested to by various rabbis over the centuries—some merely preserved as dissents from established opinion. The rabbis, he says, differed on when a pregnancy might cause danger to a women’s life, or even to her well-being; two well-known 20th-century rabbis offered this leniency in the case of a fetus carrying Tay-Sachs disease, and another minority opinion thought it worth preventing the birth of a mamzer, or illegitimate child.

Anecdotes in observant communities bear out the existence of such “leniencies” to the present day. The Forward recently published a series of mostly anonymous testimonies by Orthodox women describing their abortions—some including private approvals by rabbis for late-term abortions in a variety of ghastly situations.

So, is Jewish law “pro-choice” in this sense? After exhaustive discussion, Brody concludes that it is not. Feticide, he argues, is seen by traditional sages as prohibited, but not murder, which is a long, long way from the view that sees abortion as something that should be available “on demand.” Severe disapproval of abortion is threaded through the sources, he argues. The ideal of female autonomy that animates so much pro-choice sentiment is wholly absent from them.

“These significant disagreements create a greater amount of nuance than in other religious traditions that assert that life begins at conception and only allow abortions when the mother’s life is threatened,” he concedes toward the end of the Jerusalem Post piece. “This is a perfectly cogent position, but not the Jewish one. That said, if we had to choose, it’s clear that Jewish law is much closer to the ‘pro-life’ stance of Catholics than the ‘pro-choice’ laws that dominate Western societies.”

It sounds so balanced—and then he ruins it. “Fortunately,” the piece ends, “moral traditions with complex ethical perspectives don’t need to reduce ourselves to the binary rhetoric of contemporary politics.”

Fortunately? That’s the voice of the cloistered study hall, of rabbis luxuriating in their complex ethical perspectives. And meanwhile, outside the walls, people in the throes of a real or potential pregnancy—than which there is no state more binary—can be heard faintly shouting, “Yes, we do need to be binary about politics. We do, actually.” As folk wisdom has long pointed out, you can’t be a little bit pregnant. And as we would be likely to find out in a world without Roe—where, say, a rabbi might be forbidden by state or federal law from ruling it acceptable for a woman to abort a severely handicapped fetus—you can’t be a little bit pro-choice, either. If the rabbis didn’t sit where they sit—or sat—they might even see that.

Amy E. Schwartz is opinion editor of Moment.