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On the Possible Repeal of Roe v. Wade

05/06/2022 08:00:00 PM


Rabbi Howard L. Jaffe

I can recall many, if perhaps not all, of the conversations I have had, mostly with women, sometimes with couples, and at least once that I can recall with a man who sought out the Jewish view of abortion. Some were married, some were not. Some were already parents, others were not. Every one of them came to talk to me, of course, because they were considering abortion  - and more than that, they understood the gravity of the decision with which they were grappling, and wanted to know what Jewish values and 4000 years of Jewish wisdom might bring to their deliberations.  Countless more couples and individuals each of us know have wrestled with this decision in private, sharing their deliberations and struggle with few, if any, others.  Some decided to terminate the pregnancy, and others decided to move forward. All of them understood the responsibility to consider deeply the consequences of their decisions.

I always shared the same information: Judaism never equated potential life with actual life, and never regarded an embryo or fetus as having the same status as an actual human being. To quote two of my colleagues, Rabbis Ray Zwerin and Rick Shapiro, who wrote a wonderful article about this matter, “These are the guiding principles on abortion in Jewish tradition: a woman’s life, her pain, and her concerns take precedence over those of the fetus; existing life is always sacred and takes precedence over a potential life; and a woman has the personal freedom to apply the principles of her tradition unfettered by the legal imposition of moral standards other than her own.”

Let me repeat that last part: “A woman has the personal freedom to apply the principles of her tradition unfettered by the legal imposition of moral standards other than her own.”

And our Jewish tradition teaches that is so whatever tradition – or no tradition at all – she may embrace.

Different Jewish authorities would and have offered different opinions about specific cases and circumstances, but that is hardly the point. The point is that contrary to what some would assert, it is not a universal religious principle that abortion should be outlawed. There are, in fact, instances in which Jewish tradition not only sanctions abortion, but instances in which abortion is mandated.  As long as abortion was illegal in this country, the religious rights of Jews and others who do not subscribe to the notion that an embryo or a fetus is an actual life was impinged upon, as it would be again should the leaked draft Supreme Court Opinion become law.

I stand firmly with those who insist that it is not the business of the government to tell a woman what she can and cannot do with her body, and I do so in part because of my embrace of Jewish law and Jewish values, which in this case are unusually unambiguous.

The foundational text upon which the Jewish understanding that a fetus is not an actual human life is based on a passage in the book of Exodus, which says that “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life.” Without comment on the rest of the passage, which is sufficiently complex that it deserves its own examination, it is clear that the Torah is teaching in the case of a miscarriage, the compensation due for the loss of the unborn fetus is monetary, as opposed to the “life for life” punishment if the woman herself is killed.

As Jewish law and tradition developed, our rabbis establish the principle that a fetus is a potential life, and not an actual life, more clearly. Dating back to the second century, in the Mishnah, the foundational law code of Jewish life, the rabbis established firmly that even a full-term fetus is not yet a life, and cannot take precedence over the life of the mother. We are clearly taught that if a woman is in hard, life-threatening labor, we do whatever is necessary to the fetus to save the life of the mother, until, the text teaches “the greater part of the fetus emerges,” at which point, we are taught “we do not set aside one life or another.”

It is only at that point, when “the greater part of the fetus emerges,” that the fetus is considered an actual life. Later authorities defined that status as when either the forehead emerged, or, in the case of a breech birth, more than half the body emerged.

We are obligated, our rabbis teach, to sacrifice potential life in order to save a fully existent, actual life.

The question becomes more complex, of course, when a woman’s very life is not threatened, but whose health, including her mental health is threatened. There is near universal opinion even among the most stringent rabbinic authorities that in the case of a pregnant woman who had suicidal tendencies, and for whom a pregnant might inspire her to take her own life, abortion is permitted. In one famous case, a woman for whom pregnancy would leave her permanently deaf was given permission by no less an authority than the chief rabbi of Israel to terminate the pregnancy.

Beyond such relatively clear-cut circumstances, there is not as much unanimity of opinion. I recall being on a panel many, many years ago with a noted Orthodox rabbinic scholar who talked about how there were certain circumstances with the psychological and emotional burden was sufficient as to allow an abortion to take place, but only in very specific instances (I am not quite sure as to how I wound up on a panel with him, except for the fact that that this took place in Minnesota, where there were not a lot of rabbis). Unfortunately for him, the example he gave was of an unmarried young woman at a school associated with his branch of Judaism, from, as he put it, “an important family”, who was given rabbinic permission for an abortion. While I certainly agreed with the decision, I am guessing it will not surprise you that I was outraged at the only meaningful factor that he shared being the apparent status of that girl’s family. His point was that it would have caused that girl and her family undue and particular suffering and pain to go ahead with the pregnancy, and that would not have necessarily been the case for any and every other girl in that situation.

And that is exactly why legal abortion needs to be available. No woman, no matter what her circumstance, should ever be subject to anyone else determining what she does with her body. And let there be no mistake about it: from a Jewish perspective, which is the only one from which I can speak with any authority, an embryo or a fetus is simply a part of her body. Every woman should be welcome to discuss with whoever she chooses what she should do about her body, and embrace the teaching or even directive of whoever she chooses. Just as any man or woman might consult their rabbi or priest or minister or imam or guru or whoever they might choose to consult about any medical matter, every woman ought to be free to consult with whoever she chooses and make whatever decision she chooses.

It is shocking to imagine that we might be re-entering a world in which women who live in certain states, or who have the resources and circumstances to allow them to travel to those states, and only those women, will have that opportunity. We know that should this come to be, it will disproportionately affect lower income women and women of color and for those reasons, it is a civil rights issue as well.

Of course, this is all unfolding in the context of a much larger culture war. We have relied on the Supreme Court’s previous decisions to be a bulwark against this particular area of concern, and we have good reason to be concerned about what this portends for other possibilities. The Supreme Court does not, of course, make laws, but determines what can become law, and we would do well to be vigilant and aware of what is happening around the country as those emboldened by this kind of rhetoric and possible decision will surely not stop there.

I wish I could offer some meaningful, actionable suggestions. What I can offer is the awareness that the world is always moving forward and where we are today can be very different tomorrow, or year from now, or even, perhaps, 2000 years from now.

Yesterday, as we noted, was Yom Haa-atzmaut, Israel Independence Day. And at the end of our service a little while from now, we will conclude with the words of Hatikvah, the Israeli national anthem. The name of that song should not be lost on us: the word Hatikvah literally means “the hope,” based on the phrase which says “our hope is not lost, the hope of 2000 years… To be a free people in our own land, the land of Zion, Jerusalem.” That phrase, “our hope is not lost,” is based on a famous passage in the book of Ezekiel, in which the prophet sees a valley of dry bones, and those dry bones say, “our hope is lost.” But in the words of my dear friend Rabbi Jeff Salkin, Naftali Herz Imber, the composer of Hatikvah, “deliberately subverted the text. No, our bones are not dried up and no, our hope is not lost. We will be a free people, in our land, the land of Zion and Jerusalem.”

Imber himself did not live to see that hope fulfilled, dying almost 40 years before the state of Israel came to be. But he knew that the hope was never lost, and that which was a dream for so long would one day come to be.

God willing, we will not have to wait 2000 years or even 200 years or even 20 years for the dream of America to become more fulfilled than it feels and appears today. But let us always remember to say, and more than that, to believe, “Od lo avdah tikvateinu. Our hope is not yet lost.”

Ken Yehi Ratzon – May it be your will, Oh God.

If you are so inclined, I invite you to say, Amen.

Fri, March 31 2023 9 Nisan 5783