By Rabbi Randall J. Konigsburg
Connecticut — May 9, 2022 … Since all that anyone is talking about this week is the first draft of a Supreme Court decision about abortion rights in the United States, I take this opportunity to teach a bit on Jewish Law and how Judaism approaches this hot button, culture war issue.
Let me begin by saying that neither the Supreme Court nor any other court in this country should rule according to Jewish Law. Jewish Law is for Jews. I am speaking this day to Jews so we can know what our tradition has to say about abortion and maybe it will inform our understanding of American Law. I also note that as of this moment, nothing has changed in American Law relating to abortion. What found its way into the press was a first draft of an opinion of the Supreme Court about the status of the ruling that governs abortions in this country.
Jewish Law also starts its own deliberations on issues with a first draft, and many changes are
made throughout the process until other Rabbis can agree with a position. How significant is a
first draft? Actually, it is not all that important. Rabbis have made authors of first drafts go back
and start over again if they do not like what was done. If the first draft cannot be changed
enough, then alternative papers and dissents are written. A first draft is like the list of
ingredients in a recipe. There will be a lot of mixing, pouring, and baking before anything of use
will come out. The reason it is all kept secret is because we really do not want to know how the
sausage is made.
So, what does Jewish Law say about “Abortion” and “Privacy”? Neither word is mentioned in
the Torah. That does not mean that the Sages did not talk about either one. If the Torah does
not mention “abortion” and “privacy,” how is the law decided? What Torah states is that we
are required by God to be a holy people; that is the point of our Parsha this week. This means
we need to follow God’s laws. One of those laws is found in Exodus 21:22. There it talks about
two men fighting and, in the fight, a pregnant woman is pushed and miscarries the child. The
husband can determine how much the one who pushed should pay unless the mother is injured
in which case the usual damages must be paid. The point here is that the miscarried fetus is not
considered a life. If it were a life, then the miscarriage would be a capital crime, punishable by
death. But instead, it is considered an injury to the woman and the damage is assessed by the
woman’s husband. If there is any other injury to the woman, it is treated like any other injury
under the law, eye for eye, tooth for tooth, etc. Our basic legal document, the Torah, does not
mention everything it needs to cover. It is the job of rabbinic courts to apply the law to new
situations.
The Mishna codifies this status for the fetus saying, “if a woman’s labor becomes life
threatening, the fetus is dismembered in the womb and taken out limb by limb, for her life
comes before the life of the fetus. Once most of the child has emerged from the womb, it can
not be touched. For one life cannot be put aside for another.” We are not allowed to say one
life is more important than another life. Here we have the definition of life. According to the
Mishna, life begins at birth, not before. Before the child is born, the fetus is considered as just
another organ in the body of its mother.
Maimonides explains this further, inserting the laws of abortion into the laws of the rodef. The
rodef is someone who is chasing after you with an intent to kill. It is completely illegal to kill
another person unless they have been convicted of a capital crime. The one exception is the
rodef. If the rodef is armed and threatening, one can kill that person first, before he can kill you.
Rambam then compares the fetus to a rodef threatening the life of its mother. It is
permitted/required to kill the fetus to save the life of the mother. Again, once the head or most
of the body is born, it is now alive and, again, one life cannot be put aside for another.
It is interesting that the Rabbis push this idea further. If a fetus is a rodef, once the head is born, it is still a rodef.
The law about the rodef says it can still be killed; but here, the Rabbis will not tread.
Once the child is born, it is not the child who is threatening the life of the mother, it is
now a decree from heaven whether this woman will die; women die in childbirth for all kinds of
reasons. Once the child is born, it is no longer the source of the threat to the life of the mother.
What we still do not have is a definition of “threat to the mother.” Is her life in danger? Is her
health in danger? How do we know when a fetus becomes a rodef?
How do we know when the fetus is endangering its mother?
It is only in the modern world where we understand more about medicine and the stages of childbirth that we can begin to focus more on the question of the meaning of “threat to the mother.”
We have an opinion from the modern period from a rabbi who is asked the question, “can an
adulterous married woman (who is pregnant) be allowed to abort the child?” This rabbi, in his
“She’elat Ya’vetz,” permits the abortion. He says, “And even in the case of a legitimate fetus
there is reason to be lenient if there is a great need. As long as the fetus has not begun to
emerge, even if the mother’s life is not in jeopardy, but only so as to save her from an evil
associated with it that would cause her great pain.”
Another rabbi responding to this opinion comments on this ruling by adding: “This is because of
the mother’s need to save her from embarrassment and disgrace when the child is born, for all
of her days. … For there is no need, nor physical and spiritual pain, greater for a mother who
has done teshuva than her illegitimate child who will be living reproof constantly. It is simple
and clear that if we permit abortion for this reason, then we should permit it in the case of a
married woman who is raped, for the child would be illegitimate when conceived by rape.
Therefore, it seems that if there is a valid concern that the child will be born deformed or in
constant pain, we should permit an abortion within 40 days of conception and, at the most, up
to three months and providing that the fetus is not moving.”
What has been decided here is that the “health” of the mother should include her physical
health, her mental health, and her emotional health. If the child will cause her embarrassment
throughout her life, or if it is deformed, or will be in constant pain, then it is permitted to abort.
I do want to add here, in none of these cases is there the idea of “abortion on demand.” The
Rabbis have far more respect for life, even potential life, to let abortion be the last chance for
birth control. The Rabbis could be very lenient about the health of the mother, but they did
understand that an unrestricted use of abortion would lead to a disrespect for human life.
What happens then, is that if there is a medical reason for an abortion, due to physical health
issues, mental health issues or emotional health issues, then an abortion is permitted. But no
human being can just remove a part of his or her body just because they do not like it.
Thus, this decision is a decision between a woman and her doctor. It is not a place where a rabbi
determines what is medically necessary.
To be sure, there are rabbis that disagree with these lenient positions. Some major Halachic
authorities forbid abortion in all cases. In their minds, this disrespect for a life that has been
given by God is just too great. These authorities remain a minority opinion. They represent,
however, how serious the decision to abort should be.
In the 1980’s, the chairman of the Law and Standards Committee of the Rabbinical Assembly,
Rabbi Kass Abelson wrote, “There is clear precedent in the tradition… to permit abortion of a
fetus to save a mother’s life, to safeguard her health or even for a very thin reason, such as to
spare her physical pain or mental anguish. Some … also consider the well-being of other
children, and the future of the fetus itself as reasons to permit abortion. All agree that there
must be a reason to justify the destruction of the potential person the fetus will become after
birth. Where there is reason to believe that the fetus may be defective … if the tests indicate
that the child will be born with major defects … It is permitted to abort the fetus.”
What we learn here is, as usual, Judaism takes a position that is not radical to either side of the
current debate. It is neither fully pro-life nor fully pro-choice. Abortion is permitted but not in
every case. A woman has the right to choose, but also must have a reason. But the most
important part of these rulings is that this is a medical decision relating to the health of the
mother and the fetus. There is extraordinary room for a woman and her doctor to decide what
is best in her case. Judaism is supportive, not judgmental, in dealing with this issue and with the
people involved. Abortion is not birth control, but neither is a pregnancy a burden that must be
carried every day of a woman’s life. I should also add that the Jewish community had and still
has a dedicated support network for women who choose to carry their fetus for its full term
and raise the child.
Our American health system still leaves far too many poor people behind. The inability of our
health care system to cover those who are financially unable to pay, this alone makes it difficult
for a woman to choose to have a child. Childbirth is, by definition, a threat to the life of a
pregnant woman. We should not force a woman to endanger her life without consulting her
and valuing her opinion. The right to control our bodies is not a right that is easily revoked. And
here I offer one personal reflection: I do find it interesting that the same people who said that
the government does not have a right to control their body and to make them wear a mask
during a pandemic, these same people also say that the government does have the right to tell
a woman what to do with her body and forbid her to have an abortion.
I teach this lesson not to suggest the Jewish law is superior to American law. They are separate
legal systems that start with different assumptions. I offer this example to show that there is
middle ground, there is a measured way to ensure that abortion is safe, legal, and still respects
women and the children they bear.
May God give us the wisdom to find the proper balance in life and in law as we say….
Amen and Shabbat Shalom