With the nomination of Judge Brett Kavanaugh to the United States Supreme Court, much attention has turned in the United States to whether the famous 1972 Roe v. Wade decision will be overturned. This has led to discussion in the Jewish press about Orthodox Judaism’s stance on abortion and heated disagreements about whether it is “pro-life” or “pro-choice.” I published an extensive article (available online) on this matter in The Federalist in October 2016. In this column, I’ll briefly explain why the Orthodox position falls comfortably in the “pro-life” camp yet is more complex than other conservative positions. Jewish law clearly maintains a generally conservative outlook that rejects the pro-choice mantra of abortion on demand. Procreation represents a definitive commandment and is paradigmatic of the general attitude of promoting life. The notion that having an abortion is simply a woman’s prerogative, based on autonomy, is entirely absent from traditional Jewish sources. While the Bible is a primary source of notions of human dignity in Western philosophy, this does not mean it asserts that people have full control over their bodies. Halacha, for example, prohibits all forms of unnecessary bodily harm, ranging from suicide to self-lacerations and tattoos to high-risk recreational activities. One who acts carelessly with his or her body, Rabbi Moshe Rivkash explained, “despises the will of the Creator and does not want to serve Him.” Jewish law grants moral status to a fetus. For this reason, we violate the Sabbath to save its life, even as we would not do the same to heal animals, which have a lower moral status. Most importantly, based on select verses in Genesis, the talmudic Sages conclude that as a general rule, feticide is prohibited under the seven Noahide laws for Jews and gentiles alike. As such, it remains prohibited to request or perform abortions not justified by Jewish law, with no distinction between the religion of the patient or doctor. While Jewish law does not generally demand that Jews try to compel gentiles to observe the Noahide laws, this does not mean that Jewish doctors should facilitate procedures they find morally objectionable. This is a major issue in Canada and other countries where some physicians feel threatened to perform actions that are essentially physician-assisted suicide. Some ethicists have even proposed barring entry to medical schools of students who would refuse to perform controversial procedures like abortion. Protecting a physician’s right to conscience-based (religious or secular) medical refusals is a central moral issue in contemporary health care. Jews who care about human dignity should be at the forefront of preserving the liberty of those who refuse to take part in acts that terminate the most vulnerable in society. While Jewish law may grant moral status to this future human being, this does not mean that it equates feticide with murder. If feticide is prohibited, but is not homicide, then what is it? Historically, many decisors viewed feticide as a lower-level form of manslaughter that is permitted only when it will save the mother’s life. In that case alone, we treat the fetus as a rodef, a potential assailant, and assert that “the mother’s blood is redder than that of the fetus,” so to speak. This includes cases of direct physiological danger as well as mental imbalance to the point of becoming suicidal. Otherwise, abortion remains a very severe offense. This position was adopted in the 1960s and 1970s by, amongst others, British chief rabbi Immanuel Jakobovits, Israeli chief rabbi Isser Unterman, and America’s most prominent rabbinic decisor, Rabbi Moshe Feinstein. Yet other scholars like Rabbis Yaakov Emden and Benzion Uziel significantly lowered the severity of abortion, even as they firmly maintained its general prohibition. Some asserted that abortion falls under the general prohibition of battery, while others include it within a general rabbinic proscription of preventing the creation of life. These lenient assessments clearly allow for a broader range of dispensations, including cases in which the pregnancy might aggravate preexisting medical conditions that are not life-threatening. Most famously, rabbis Eliezer Waldenberg and Shaul Yisraeli permitted aborting a fetus diagnosed as a Tay-Sachs carrier in order to prevent the future suffering of this child and the mental anguish of their parents. Others strongly opposed this ruling and asserted that fetuses should not undergo such testing for general diseases.Another mediating factor is the stage of embryotic development. According to several talmudic sources, Jewish law does not assert that life begins at conception. Furthermore, it posits a lower moral status to a zygote or fetus within the first 40 days of embryonic development from fertilization. This is roughly equivalent to the seventh to eighth week of gestational pregnancy, as calculated from the mother’s last menstrual period, the method of calculation most frequently used in medical circles. This is the basis of the general consensus to permit abortions in cases of rape pregnancies. More controversially, a few decisors even allow for early-stage abortions of fetuses conceived out of wedlock, particularly when dealing with unmarried teens who may suffer from long-term shame or married women who will bear mamzerim (illegitimate children with severely limited marital rights). Many decisors oppose dispensations in these cases as they believe it encourages promiscuity while terminating the future life of a perfectly healthy baby.These significant disagreements create a greater amount of nuance than in other religious traditions that assert that life begins at conception and only allow abortions when the mother’s life is threatened. This is a perfectly cogent position, but not the Jewish one. That said, if we had to choose, it’s clear that Jewish law is much closer to the “prolife” stance of Catholics than the “prochoice” laws that dominate Western societies. Fortunately, moral traditions with complex ethical perspectives don’t need to reduce ourselves to the binary rhetoric of contemporary politics.
The writer, author of A Guide to the Complex: Contemporary Halakhic Debates, directs the Tikvah Overseas Students Institute and is a presidential scholar at Bar-Ilan University Law School.