by Rabbi Jeremy Rosen
In 1973 the USA Supreme Court decided in Roe v Wade to strike down Texas laws that criminalized abortion. There is a furor now over a leaked Supreme Court opinion that suggests certain changes might be made to that judgment. Even though no one in the Supreme Court thinks that abortion should once again be illegal everywhere in the USA, some states want to ban abortions altogether from fertilization onwards. Now there are threats of violence once more, which seems to be the American way.
Roe v Wade important as it was, was flawed because it did not comment on fetus viability, motive, or allow individual states to make their choices. And yet it was important precisely because it afforded all women the possibility of abortion. It forced no one to kill a fetus but it did at least offer women the option.
In 2019 New York allowed abortions “Based on reasonable and good faith professional judgment based on the facts of the patient’s case… the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” After twenty-four weeks, such decisions must be made with a determination that there is an “absence of fetal viability,” or that the procedure is “necessary to protect the patient’s life or health” and the approval of a “health care practitioner licensed, certified, or authorized” under state law “acting within his or her lawful scope of practice.” New York State Law will remain the law of New York regardless of any decision on Roe v Wade.
The issue is a delicate one because anything to do with women, race, and sex in all their varieties is sensitive. Anything that makes it harder to abort is said to be racist and anti-feminist. Ironically the fiercest supporters of unlimited abortion rights are movements that claim that Black Lives Matter and Women’s Lives Matter but by implication Pre- Natal lives do not matter.
The Jewish Halachic position is Pro-Choice and Pro-Life. I believe women should have the right to abort under certain conditions. But I also believe we ought to respect fetuses as potential lives. In Jewish Law, people do not have inalienable rights to do whatever they please. To abort a fetus for cosmetic reasons or as a means of contraception would offend. With sadness, I recognize there can be valid reasons for abortions. I do not, however, consider all abortions to be ethically wrong. And to deny a woman the possibility of abortion does seem to me to be unconscionable.
Judaism offers a model of compromise. According to the Talmud, the fetus is recognized as a potential life only after forty days from conception. Interestingly, the child’s heartbeat can be detected around that time. Before that, it has no legal status. We do not think that life begins at conception. Therefore, any action to end a pregnancy during that forty-day period does not offend Jewish law. That does not mean that Jewish law thinks it is a good thing to do. But each case is adjudicated on its merit and circumstances.
After forty days, only the threat to the life of the mother or other important exceptions are grounds for abortion as self-defense. The fetus counts as a limb of the mother up until birth, which, like in the case of an amputation, may be removed to save her.
Jewish Law allows rabbis to deal with specific cases and take the circumstances into consideration as much as possible. They make decisions specific to the cases. In recent years, many rabbis have allowed abortions of fetuses that would not be able to survive unaided outside the womb or have exceedingly debilitating diseases. Some have also allowed abortions where the mental state of the mother is so severe that carrying to full term might endanger her mental stability. Otherwise, abortion of choice contravenes Jewish law.
There is a surprising anomaly in Jewish law. According to the Talmud, all non-Jews have a moral obligation to abide by the Seven Commandments given to Noah. One of them is not to murder. Jewish law interprets infanticide as murder. But whereas Torah law is relatively lenient for Jews, under extremis, it is much stricter (according to some) for non-Jews, for whom any kind of abortion at any time is forbidden except in cases of the mother’s actual life being in danger. Indeed, I once heard the iconic, saintly nun, Mother Theresa, say that contraception was the same as abortion.
So why is Jewish law stricter for non-Jews? A reason sometimes given is that whereas morally advanced societies have a heightened sense of the sanctity of life, pagan societies routinely were guilty of infanticide and had less regard for human life. They needed more limitations, safeguards, and protections, not fewer.
We are living in a pagan society where religion has lost its hold on many, and self-indulgence is the only criterion of good. The result is a sense that the fetus is not so important, fetuses are disposable and a woman’s right to do with her body as she pleases should be the only factor. On the other hand, evidence of the crude disposal of aborted fetuses and the way they are often allowed to die though still viable is a stain on the ethical values of many. This is why there is good reason for those who care to abide by a higher standard of respect even for unborn children. On the other hand, if some states agree democratically to have higher standards, why shouldn’t they?
I approve of democracy with all its faults and that we have to respect the Law of the Land even if we might be offended morally by it. Here in the USA, there are two laws, Federal and State. I also believe people should be able to decide for themselves whether to cause damage to themselves physically or mentally. This applies to abortions as well as alcohol, drugs, euthanasia, and suicide. Governments should interfere minimally with individual moral decisions and just ensure that their citizens do not impinge on each other whether right or left. Yet we can and should make our own moral decisions.
This row is primarily political. Both parties are appealing to their constituencies as if there was only one right. And may I say I am not a member of any party. They are rigid and doctrinaire in their ways.
We should be able to have a civilized debate, not a shouting match or threats of violence. But that seems impossible in the USA. Whatever SCOTUS decides, as Jews we should respect life, we should respect choice, act according to our moral or religious codes and consciences, and do whatever we can to preserve rather than destroy.
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Jeremy Rosen was born in Manchester, England, the eldest son of Rabbi Kopul Rosen and Bella Rosen. Rosen's thinking was strongly influenced by his father, who rejected fundamentalist and obscurantist approaches in favour of being open to the best the secular world has to offer while remaining committed to religious life. He was first educated at Carmel College, the school his father had founded based on this philosophical orientation. At his father's direction, Rosen also studied at Be'er Yaakov Yeshiva in Israel (1957–1958 and 1960). He then went on to Merkaz Harav Kook (1961), and Mir Yeshiva (1965–1968) in Jerusalem, where he received semicha from Rabbi Chaim Leib Shmuelevitz in addition to Rabbi Dovid Povarsky of Ponevezh and Rabbi Moshe Shmuel Shapiro of Yeshivat Be'er Ya'akov. In between Rosen attended Cambridge University (1962–1965), graduating with a degree in Moral Sciences.