In the light of the decision of the United States Supreme Court in Dobbs v Jackson, Rabbi Natasha Mann and I thought it important to share a Jewish perspective on this issue that, though formally part of American discourse, has significant implications for us also.
I will be sharing some observations on a Jewish approach to abortion and Rabbi Natasha will set this recent American decision in a broader context.
Life is, of course, of incredible importance in Jewish law. The saving of life trumps almost every other claim made on humanity and one who saves a life, teach the Rabbis in Mishnah Sanhedrin, is considered as if they have saved an entire world.
But Judaism, grounded in the verse, Exodus 21.12, is clear that a foetus is not a life.
If men fight and hurt a pregnant woman so that she miscarries, but no harm follows, the man is to be fined, but if any harm follows, then you shall give life for life.
The assumption of the verse couldn’t be clearer – the term ‘harm’ doesn’t apply to the fetus. Only the pregnant woman is capable of being ‘harmed’. The loss of the fetus is of value, but the loss of the fetus does not trigger the Biblical response ‘life for life,’ for the fetus is not a full life. (see Mekhilta Shmot, Nezikin 8 among others.)
This clear assumption underlies Mishnah Ohalot 7:6.
If a woman has difficulty in childbirth, the embryo within her should be dismembered limb from limb, because her life takes precedence over its life. Once its greater part [or head], has emerged, it may not be touched for one does not push off a soul for a soul.
Rashi (on Sanhedrin 72b) explains this teaching as follows
[The embryo is dismembered] limb from limb because as long as it has not emerged into the world it is not a human being – lav nefesh hu – and therefore it can be killed to save the mother.
Until birth, the fetus is understood by the Talmud (Sanhedrin 80b) as ‘a limb of the mother.’
This approach lines up neither alongside a claim that abortion is a ‘right,’ nor a claim that abortion is ‘murder.’ As the leading contemporary Masorti medical ethicist, Rabbi Elliot Dorff, wrote;
Neither men nor women may amputate their thigh at will because our bodies belong to God, we have them on trust and hence we are forbidden to inflict injuries on ourselves.
On the other hand, if the thigh turns gangrenous, then both men and women have the positive duty to have their thigh amputated in order to save their lives. Similarly, if the woman’s life or health is at stake, an abortion must be performed to save the life or the physical or mental health of the woman.
Where there are differences in Jewish approaches to abortion, they lie in an assessment of what level of threat to the mother justifies removal of the ‘limb.’ Most of these responses pay attention to the process of fetal development – Rabbinically an embryo under 40 days post-conception is considered ‘mere water’ (Yevamot 69b), and there is rabbinic unanimity that earlier abortions are more easily justified than late.
The first Sephardi Chief Rabbi of modern Israel, Rav Ben Zion Uziel (Mispetie Uziel C20 HM 3:46) articulates a maximalist position,
It is clear that abortion is not permitted without reason, but for a reason – even a weak reason – taam halush – such as to prevent her public shame, we have precedent and authority to permit it [even up to the point of labour!].
And the Ashkenaz founder of a systemic approach to Jewish medical ethics, Eliezer Waldenberg articulates a more minimal position permitting abortion up to three months ‘where there is reason to believe a child would be deformed or would experience pain,’ and at a later point only if defects are only detected at such a later point (Titz Eliezer 9:237). Waldenberg doesn’t consider maternal mental distress in his responsa.
The Masorti Committee on Jewish Law and Standards takes the position that;
Abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective. (Position Paper on Abortion)
To which I would wish to add that, in the assessment of the psychological harm that pregnancy might cause the mother, ishah neemenet – the woman is to be believed (a legal category found broadly in Rabbinic Judaism, see here for full discussion). I accept that women do not seek abortion frivolously and oppose the placing of obstacles before a person expressing distress when faced with a pregnancy they feel unable to carry to term with the love that all children deserve.
The overturning of Roe v Wade is a restriction of bodily autonomy and will lead to consequent health issues relating to pregnancy and birth, deepening of poverty and, in some cases, death of those who seek unsafe termination methods. The way in which this decision will disproportionately impact the poor – unable to travel to States which will not outlaw abortion – is particularly distressing.
Any situation in which rights are syphoned away should be a cause for concern. That this is happening in the USA, a country with such cultural and political power and influence, is all the more alarming. This legal decision suggests also that other rights taken for granted in the States could be overturned on similar legal and logical grounds.
The Torah does not speak in the language of rights. It speaks instead in the language of mitzvot, of sacred obligations. The result may sometimes look the same, but this is a significant distinction. The Torah is not a defining constitution of a state; it is a ketubah (a marriage document) between the People of Israel and the Divine. And in this vein, it is interested in telling us what our obligations are to God, to ourselves, and to one another.
Most significantly, when the Torah speaks of the building of society, it urges us to centralise the place of the vulnerable. In Parashat Emor, in the midst of the cycle of the Jewish festive calendar, the Torah pauses between Shavuot and Rosh HaShanah to remind us (Leviticus 23:22):
And when you reap the harvest of your land, you shall not reap all the way to the edges of your field, or gather the gleanings of your harvest; you shall leave them for the poor and the stranger: I, the LORD, am your God.
We received this commandment in the previous Torah portion, Kedoshim. Why does the Torah give us a reminder of the importance of protecting the vulnerable in society in this festive moment? So says Ibn Ezra (12th Century commentator):
Scripture cautions: Do not forget about what I commanded you to do at this time.
This is to say, it is all well and good to remember our responsibilities toward the vulnerable in theory, and much more difficult when we are secure. We are urged to remain aware of our responsibilities toward one another, even during our celebrations.
This is an important historical moment. It is, of course, important for those in States which will restrict abortion who will find themselves forced to carry pregnancies against their will. It is also important for us as a wider society to remember that if we don’t guard rights, they are not guaranteed. And furthermore, as Jews, we must remember our sacred obligation to protect people in our society who are vulnerable.
As Hillel said: If I am not for myself, who is for me? And if I am only for myself, who am I? And if not now, when?
The American National Council of Jewish Women has set up the Jewish Fund for Abortion Access. 100% of the money that is raised goes directly to support those who need care. They call a hotline, and get support to get abortion care—including logistical support to navigate their state laws, travel funds if they need to leave the state, money to cover their abortion if needed, etc.
Opportunities for other US-based advocacy and learning can be found at www.JewsForAbortionAccess.org. We also recommend the various social media feeds of Rabbi Danya Ruttenberg and acknowledge her vital leadership on this issue.
