Abortion in Jewish Law Is Nuanced, Controversial and Never Forbidden

A Florida synagogue’s decision to sue the state for banning abortion is more aligned with Jewish tradition than many realize

Abortion in Jewish Law Is Nuanced, Controversial and Never Forbidden
Protesters at the “Jewish Rally for Abortion Justice” on May 17, 2022, in Washington, D.C. (Photo by Anna Moneymaker / Getty Images)

It is no small irony that a liberal-minded Jew may have inadvertently contributed to the ban on women’s ability to access abortion in many U.S. states. The late Ruth Bader Ginsburg — a renowned defender of women’s rights — could have stepped down as one of the associate justices of the Supreme Court when she was 80 and a Democratic president was occupying the White House. She chose not to, and, when she died in 2020, President Donald Trump appointed a much more conservative successor, shifting the balance on the Supreme Court.

The mixed reaction among Jews to both her replacement and the recent ruling on abortion indicates that it is impossible to talk about a “Jewish view” as though more than 5 million Jews in the U.S. were of one mind. Some of the more Orthodox communities welcomed the ruling, as did certain secular right-wing Jews.

As the British Orthodox Rabbi Yoni Birnbaum put it, “[The original judgment on Roe v. Wade] fell squarely in direct contravention of a fundamental principle of Jewish belief. That belief is the fact that we do not ‘own’ our bodies — God does. And therefore we do not have an axiomatic right to ‘choice’ when it comes to decisions which fundamentally alter or damage the human body.”

Of course, while it sounds pious to ascribe our bodies to God, it also has two potentially detrimental ramifications. First, it risks taking away free will and our ability to use our God-given life in a way we feel appropriate and empowered by God to do. Second, it usually leaves the job of interpreting what God wants us to do with the gift of life to God’s self-appointed representatives, who — like Birnbaum — tend to be very conservative men.

By contrast, the decision by a synagogue in Florida to sue the state for banning abortion on grounds of religious freedom is probably more representative of Jewish opinion. Though Judaism does not treat abortion lightly, nor approve of abortion as an alternative form of contraception, the main thrust of Jewish law sees it as permissible in certain situations.

Biblical texts show this view is based on an extraordinarily long-standing opinion — over 3,000 years old — and is not some faddish concession to modern influences. It also begs the question: Why do right-wing Christian circles believe abortion contravenes biblical thinking? Exodus 21:22 describes a situation with a clear legal and moral outcome: If two men are fighting and a pregnant woman is hurt in the brawl, with the result that she miscarries but is not badly injured, then the guilty individual shall pay a fine. However, if the woman is seriously injured or dies, then that individual shall give measure for measure: life for life.

It is clear, therefore, that the fetus’s life is of value and its death cannot pass without consequence. However, it is equally clear that the value of the fetus differs from that of the pregnant woman. If she miscarries, the men pay a fine. If she dies, they suffer the death penalty. The life in potential does not have the same status as the life that exists. The biblical passage may describe a very particular scenario, but it has become the template for subsequent Jewish teaching.

What it does not address — and this is crucial to the current debate — is at what point the status of the fetus acquires the status of a human. For many Catholics, it is at the moment of conception that the fetus needs full legal protection in its own right thereafter. It is a life independent of the pregnant woman, not an adjunct to her. In English law, by contrast, the key criterion is viability. As medical science developed and the survival rates of premature babies increased, new legislation was needed. The original permission of abortion up to 28 weeks of gestation that was granted in the U.K. in 1967 was changed in 1990 to allow only up to 24 weeks. There is currently a debate about reducing the period to 20 weeks.

Jewish attitudes, though, have always been much more permissive.

The Talmud, the sixth-century text from which all Jewish laws derive, describes what it sees as the development of the fetus. It tells us in one passage that “until the 40th day, it is just water.” However, another passage warns against sexual intercourse on the 90th day for fear of damaging the embryo: “It is though he had shed blood.” Damage to a 13-week-old embryo is likened to murder, which would suggest the fetus has the status of a human being. Other passages describe the embryo as a “limb” of the pregnant woman and so not subject to separate concern. Clearly these descriptions do not stand up to modern medical scrutiny, but they shed light on why Judaism appears so lenient in this area. They also lead to radically divergent interpretations.

One key passage comes from an older Jewish text, the second-century Mishnah: “If a woman is having a difficult labor,” Ohalot 7:6 reads, “one cuts the child inside her and delivers it limb by limb, because her life takes precedence over its life.” Once the greater part of the child’s body emerges, however, it attains its own independent humanity and “one may not set aside one life because of another.”

A related principle in Jewish law is the “din rodef,” or “law of the pursuer.” According to another Mishnah passage, in Sanhedrin 8:7, if a person is pursuing another with a view to killing or raping them, it is a duty to save the life of the pursued even if it means killing the pursuer. When a woman’s life is in danger because of her pregnancy, the embryo is seen as the rodef and there is a duty to destroy it to save the woman.

The two passages cited above take radically different approaches to the status of the child. While, in the first, it is not considered a fully-formed human until its birth, in the second, the embryo takes on all the responsibilities and due punishment of a fully-born human. This leads to differing understandings of when abortion can be permitted.

Of course, when a woman’s life is in danger because of her pregnancy, the situation appears straightforward. Indeed, in U.K. hospitals today, medical intervention leading to termination would take place to save the life of a woman in these circumstances.

When the pregnant woman’s life is not in immediate danger, but continuing with the pregnancy increases the woman’s risk of suicide, it is less clear what to do. Such scenarios include, for example, instances in which the birth could affect the mental stability of the woman to the point that she could not cope, or when the child is a product of incest or rape. Should the child in such cases be seen as a rodef, and does the same duty to “kill the pursuer” apply?

Then there are situations that may not be life-threatening per se, but might still seriously affect the life of the woman: for example, if she is likely to incur life-changing health defects as a result of the birth; if she lives in extreme poverty; or if she already has more children than she can realistically support. Obviously, every effort should be made to assist the woman and help her cope with her particular circumstances, but if that proves impossible, does consideration of her well-being form a justification for abortion?

More debatable still is the case of a fetus with congenital defects, whose birth may cause deep distress to the mother. In the past, it was more difficult to assess the likelihood of birth defects, and Jewish scholars were uncomfortable authorizing an abortion on the basis of presumption alone. Nowadays, modern scanning techniques can detect with greater accuracy the scale and likelihood of developmental complications.

Two prominent contemporary rabbinic authorities — both major figures within Orthodox Judaism — have come to radically different conclusions.

The late Rabbi Eliezer Yehudah Waldenberg was a legal scholar who gave considerable attention to the field of medical ethics. On the question of a fetus affected with Tay-Sachs disease, a genetic disorder relatively prevalent among Ashkenazic Jews, which entails a steady decline in nervous responses leading to death at around 3 to 6 years of age, he wrote:

“It is clear that, according to Jewish Law, capital punishment is not prescribed for abortion. However, all the authorities minus one feel that it is still prohibited … but not at all because of murder. Rabbi Yosef Trani (1568-1639) permitted abortion for a Jewish woman whenever the matter was necessary for her health when her life was not at stake … Therefore ask yourself, is there a greater need, greater pain or suffering than that which will be experienced by the woman in our case if she gives birth to such an offspring whose very being is one of pain and suffering and his death is certain in a few years? … and added to that is the pain and suffering of the child who has every sort of defect.”

Waldenberg recommended abortion in this case up to seven months. Beyond that, he was cautious, “since at the end of seven months, the fetus is fully developed.”

The late Rabbi Moshe Feinstein wrote, in response to this ruling, based on the opinion of Rabbi Moses Maimonedes (1138-1204), that killing a fetus is murder:

“I was appalled by the responsum of a learned man in Israel … who permits the abortion of a Tay-Sachs fetus, even beyond three months, it is clear and simple as I wrote: the law which is made clear by the early Rabbis and arbiters of law, that abortion is prohibited as it is considered actual murder, whether the fetus is pure or illegitimate, regular fetuses or those which are suffering from Tay-Sachs, that it is strictly prohibited.”

Clearly, Judaism allows for a nuanced approach in the many varieties of situations that can arise. If Waldenberg and Feinstein take perhaps the most extreme positions within Orthodox Judaism, the majority of rabbis would find themselves somewhere in between these two.

In all such instances, where a pregnant woman is an observant member of the Jewish community, she would be expected to consult her rabbi and follow their advice. It would be wrong to assume the most extremely observant communities are those most likely to oppose abortion in such circumstances. On the contrary, much of the recent opposition to such liberal interpretations comes from groups affected by the religious ethos of the Christian right in the U.S. This includes many young Jews, who grew up in secular homes before “returning” to Orthodox religious practice. They bring with them an idea of what being a person of faith means, which is shaped as much by Christian fundamentalism as it is by their newfound understanding of Judaism. They are more likely to be in sympathy with the blanket bans found in some U.S. states than with the more subtle understandings evinced by Jewish law.

Where opinion is most divided is when a pregnancy results from adultery. Some scholars permit abortion on the grounds of the permanent shame the child will carry throughout its life. This may seem old-fashioned, but to the observant Orthodox Jew it bears terrible repercussions. Such a child is described as a “mamzer,” meaning illegitimate, and is banned from marrying into the Jewish community, unless to another mamzer — a ban that can last for generations. Nevertheless, others forbid abortion in this case because it would open the door to immorality by removing the deterrent of having a child through such an illicit relationship. Unlike the other cases, this is more a matter of moral judgment than physical or social circumstances.

In all these situations, even if abortion is permitted by the rabbinic authorities, there remains the question of timing, i.e., at what point in the pregnancy abortion is no longer permissible. Here, Judaism has always followed the general rabbinic principle “dina d’malchuta dina” (“the law of the land is the law”). Ultimately, the secular law of the state or country in which one lives determines one’s access and right to abortion. Jews must abide by it, with the Jewish approach described above determining whether it is appropriate on religious grounds to consider an abortion in such situations.

While the above analysis pertains to the situation as found within the Orthodox Jewish communities, the majority of Jews belong to non-Orthodox synagogues, or no synagogue at all, and are essentially secular. They are less likely to consult their rabbinic authority, or, if they do, they may not feel bound by the advice they are given.

The traditional views on abortion are generally seen today as part of a historical attempt to give women autonomy that is not evident in traditional texts. Granting an abortion can be on par with the legal requirement for a woman to consent to her marriage and to her divorce. During the biblical period, women were the property of men, belonging either to their father or their husband until widowhood gave them a small amount of independence. The rabbinic period (from the first to the fifth centuries) set out laws stipulating that women must demonstrably accept the proposal for marriage and receive the bill of divorce, literally, “into their hand.” However, this was only small consolation, for they could initiate neither. Still, it established an important principle that women should have a choice.

The laws of “ritual purity” were extended during the same period. These laws govern the separation of men and women during menstruation and require the woman to bathe in running water before resuming conjugal relations. This gave women a significant time each month in which they remained separate from their husbands, and the return to their husband’s bed was within their control. This control was extended also to permission to use birth control in certain circumstances (a privilege forbidden to men). All in all, these traditional laws, though restrictive by today’s standards, gave women freedom in ways that would seem foreign to most interpretations of Christianity.

In this context, while the rescinding of Roe v. Wade may appear to conform to Christian values, it most certainly does not conform to Jewish ones. It hands a woman’s autonomy over to a state authority — one largely composed of men who will never experience the trauma a woman may undergo for being forced to give birth. They are also far less likely than women to experience sexual harassment, rape and abuse. Is access to abortion really a decision based on Christian values? Or is it a form of bullying — of coercive control over the female population that has more to do with misogyny than religion? Men and women are, allegedly, created equal by God.

The Florida synagogue’s argument that banning abortion undermines religious freedom is by no means a spurious action by an abortion-rights lobby group within the congregation. To the contrary, it reflects a mainstream Jewish view that, while abortion may be fraught with controversy, it is not an option to be denied.

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