Sarah Posner: Why Abortion Is a Religious Freedom Issue

The beliefs of Judeo-Christian pro-lifers—aka the American Christian right—do not represent the Jewish theological position.

Like a good Jew, I ate dinner last Christmas at a Chinese restaurant. This one, though, was kosher, and on my way out I spied a pile of brochures for the American financial support arm of Efrat, an Israeli anti-abortion organization.

“Your opportunity to gain the merit of saving the life of a Jewish child in Israel!” the front page of the brochure proclaimed. A smiling, blond, blue-eyed baby gazed out at me, its cartoonish disembodied head weighing down one side of a gold two-pan scale evoking Lady Justice.  Inside the brochure, among the eight reasons offered for supporting Friends of Efrat was this: “You are actually saving a life.” (Another was the chance to win a raffle for round-trip airfare to Israel.)

The brochure mimics rhetoric favored by the American Christian right—from warnings of a religious demographic crisis resulting from abortion to the implication that persuading a woman not to abort will save not only the fetus but the mother as well.  For a Jewish organization, its pitch seems influenced far more by what are too loosely called “Judeo-Christian” ideas than by Jewish ones.

And in fact, about a week after I stumbled on Efrat’s American patrons—who call themselves CRIB, the Committee for the Rescue of Israel’s Babies—an article in Haaretz described the controversy that Efrat itself has faced in Israel for its language and tactics. In January, according to Haaretz, two members of Israel’s chief rabbinate issued a letter of support for the organization, praising it for “making the wider public aware of the extreme seriousness involved in killing fetuses, which is like actual murder.”

A week later, Benny Lau, the religious Zionist rabbi of Jerusalem’s Rambam Synagogue, retorted that equating abortion with murder was “irresponsible” and that “‘abortion is murder’ is neither rabbinical law nor Judaism.” He added, “Taking our Torah in the direction of Christian Catholic canon law is a terrible mistake.”  (According to Haaretz, Efrat’s director denied the organization had ever used language equating abortion with murder.) Lau complained that on abortion, “There is no more complexity, there is no more discussion. We have become shallow, Republicans, Catholics and Jews.”

As Rabbis Raymond A. Zwerin and Richard J. Shapiro write in a piece for the Religious Coalition for Reproductive Choice, according to Jewish law, “a fetus is not considered a full human being and has no juridical personality of its own.” Rabbi Jill Jacobs, executive director of Rabbis for Human Rights-North America, has explained that Jewish thought attempts “to negotiate the delicate distinctions among something with no person-ness whatsoever (like a mole), a potential life, and a fully formed human being (the pregnant woman). It is clear that the woman’s life always comes first.”

That Jewish law does not consider the fetus to be a legal person goes to the heart of why so-called “personhood” amendments—laws that would declare a fertilized egg to be a person with rights—and other attempts by lawmakers and activists to afford fetuses equal protection rights have a constitutional problem. They reflect a particular religious view, one that is not, as Christian right activists like to say about their beliefs on reproduction, a “Judeo-Christian” one.

“Personhood” initiatives, which activists are pushing in state legislatures and ballot boxes around the country, would not only criminalize abortion but would most likely outlaw some forms of birth control and fertility treatments as well. These efforts include the failed 2011 Mississippi ballot measure that would have amended the state constitution to define “person” to “include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”

Nor are these initiatives the only mechanism for defining fertilized eggs as persons with rights. The proposed Human Life Amendment to the U.S. Constitution, long sought by anti-choice activists, would establish that a human exists from the moment of conception. And while amending the Constitution is an arduous path, pro-lifers have proposed other paths to giving fetuses civil rights protections. Robert George, the conservative Catholic scholar and activist, has advocated for federal legislation “pursuant to the 14th Amendment to protect human life in all stages and conditions,” and Rep. Chris Smith, a New Jersey Republican and chair of the House Pro-Life Caucus, has suggested a new protected class entitled to equal protection, one not based on race, class, religion, gender or sexual orientation, but on “immaturity.”

Rabbis and Jewish activists have sometimes responded to personhood initiatives by highlighting the crucial distinction between Jewish thought and this particular strain of Christian theology. Rabbis in Mississippi opposed the measure in their state, with Rabbi Valerie Cohen of Beth Israel Congregation in Jackson, Mississippi, arguing that it would infringe on “freedom of religious choice.” Yet framing this as a religious freedom issue—that imposing one particular theological belief through legislation infringes on the religious freedom of those with a different religious view—deserves far more emphasis than it frequently receives. Because abortion, and certainly contraception and fertility treatments, are permissible under Jewish law, banning them doesn’t promote “Judeo-Christian” values; it tramples on free exercise of religion.

At an event commemorating the 40th anniversary of Roe v. Wade in Detroit, Sharon Lipton, a Michigan state policy advocate with the National Council of Jewish Women, emphasized that “reproductive rights are central to women’s rights and are tied to religious liberty.” Because most streams of Judaism reject the claim that the fetus is a person, she said, “no one religious viewpoint should be imposed on everyone else.”

With the Catholic and evangelical opposition to the contraception coverage requirement under the Affordable Care Act, religious freedom has become a potent cri de coeur. Perhaps it should be deployed more frequently and forcefully in a greater variety of contexts.

Sarah Posner is senior editor of Religion Dispatches.