The battle over Israel's abortion laws explained

Possible overturning of landmark US case Roe vs Wade shines spotlight on abortion rights across the world

 DEMONSTRATORS FOR legal abortion in Israel on International Women’s Day, 1978. (photo credit: Dan Hadani Collection/Wikimedia Commons)
DEMONSTRATORS FOR legal abortion in Israel on International Women’s Day, 1978.
(photo credit: Dan Hadani Collection/Wikimedia Commons)

The topic of abortion has been much discussed in recent weeks, following the leaking of a US Supreme Court draft indicating the court would vote in favor of overturning Roe vs Wade, the landmark ruling from 1973 that protected a person’s absolute right to an abortion from excessive government restrictions.

The news that the highest court in the US was working to remove these rights that have been enshrined for decades, at a time when other countries such as Northern Ireland and New Zealand have only recently legalized or decriminalized abortion, has sent many reeling and placed a sharp spotlight on abortion rights across the world.

While the US was by no means the first country to legalize abortion by the time the Supreme Court ruled on it in 1973 (the Soviet Union legalized abortions in 1920 and Mexico legalized abortion for instances of rape in 1931), its position as a superpower gives it influence on the world stage, hence the importance of Roe vs Wade globally, and not just on a national level.

Should the Supreme Court follow through on the plan in the draft, the eyes of the world will be watching. But what exactly will they see?

In the event that Roe vs Wade is overturned, the legality of abortion will be up to each individual state, 26 of which are expected to ban abortion when they are given the chance. Of these 26 states, many are already chipping away at legislation that protects abortion on a federal level, and the overturning of the ruling will only make it easier.

 LAW ENFORCEMENT stands guard at the US Supreme Court after an abortion rights rally, Washington, May 14. (credit: Leah Mills/Reuters) LAW ENFORCEMENT stands guard at the US Supreme Court after an abortion rights rally, Washington, May 14. (credit: Leah Mills/Reuters)

For example, in Texas, it is considered a felony to have a medical abortion via a pill after seven weeks, in violation of Roe vs Wade legislation. According to constitutional law Prof. Nicholas Creel, Texan lawmakers are confident that Roe vs Wade will be ancient history before challenges to the seven-week law even make it to the Supreme Court.

On the other hand, 14 states have laws in place that would protect the right to abortion no matter what, with additional states in the process of preparing similar laws. In these states, abortion providers are preparing to care for a surge of out-of-state patients who can no longer receive abortions in their home state.

MEANWHILE, IN Israel, the laws surrounding abortion are controversial, disliked by all but for different reasons. For some, the abortion laws are restrictive, while for others they are too lenient.

In Israel, abortion is largely permitted, although it is not considered an absolute right, and instead is approved on a case-by-case basis only.

Abortion was illegal in Israel until 1977, at which point the law changed to allow them under a specific set of circumstances. Since then, the law has remained virtually unchanged, besides an update in 2014 that significantly eased access to state-funded abortion services.

How does Israel’s abortion process work?

The first step is seeking the approval of a pregnancy termination committee. All women who wish to undergo an abortion must first receive committee authorization, and forgoing approval can result in the person who knowingly terminated the pregnancy facing up to five years in prison.

There are more than 40 pregnancy termination committees in Israel, all of which operate out of public or private hospitals. Each committee consists of three members – two licensed physicians and one social worker.

Of the two physicians, one is required to be an obstetrics and gynecology specialist (OB/GYN) and the other must either be an OB/GYN or a specialist in internal medicine, psychiatry, family medicine or public health. At least one member per committee must be a woman.

While anyone is eligible to apply for a committee hearing, there are certain conditions that dictate who will ultimately be approved for an abortion. A request will be approved if it meets one or more of the following conditions:

  • If the woman is younger than 18 or older than 40.
  • If the woman is unmarried or the pregnancy is not from the marriage.
  • If the pregnancy is the result of illegal or incestuous relations.
  • If the child is liable to be born with a physical or mental birth defect.
  • If continuing the pregnancy will endanger the woman’s life or cause her physical/emotional harm.

However, even in these cases, the committee is only permitted to authorize the termination of a pregnancy if it is less than 24 full weeks. In cases when the pregnancy has progressed past 24 weeks, they are referred to a separate specialized committee.

Once approved, the abortion must take place in the same hospital at which committee approval was granted, and at-home abortions, or even the establishment of abortion-specific clinics, are illegal in Israel.

When it comes to the cost of an abortion, there are certain instances in which the costs will be covered by the state, rather than by the person undergoing the procedure.

Regardless of anything else, the state will fund the abortion for women up until the age of 33. In addition, for pregnancies that were the result of either rape or incest, cases where the child will be born with a physical or cognitive defect, or if the pregnancy poses a risk to the women’s health, the abortion will also be publicly funded, no matter the age.

For those who are given the approval to undergo an abortion, but were not eligible for state funding, an abortion can cost anywhere between NIS 2,100 to NIS 2,900. In addition to this, the cost of receiving a committee hearing is around NIS 430, which will only be reimbursed for those eligible for state funding.

While the entire process seems simple enough on paper, E., an Israeli reproductive rights advocate and expert who wished to remain anonymous, explains to the Magazine why the reality is often more complicated, and why the movement to reform the abortion laws here is active still today.

Pro-choice in Israel

Two of the most prominent organizations fighting to reform abortion laws are Lada’at – Choose Well and Open Door (Israel Family Planning Association).

Both organizations advocate for reproductive rights, improved education surrounding sex and relationships, and full autonomous rights for each individual.

Founded in 1967, over a decade before legalized abortion was an option, Lada’at’s mission statement says it combines “sex-positive educational activities, supportive family planning counseling and advocacy on behalf of all citizens’ rights to achieve full self-determination in decisions related to reproduction and sexuality.”

Based out of Jerusalem, the organization serves the country’s diverse population, saying that in 2018 alone, over 5,000 people benefited from its services, including “both religious and secular Jews, Arabs, African asylum-seekers, foreign workers and tourists.”

Founded one year prior to Lada’at in 1966, Open Door focuses heavily on education, with part of its mission statement dedicated to bringing the conversation on reproductive rights forward.

“Our vision is to lead the public and social discussion on sexual health in Israel and provide professional information and counseling services to youth and young adults in Israel,” the organization’s website states.

THE REASON both these organizations have been running as long as they have, with more or less unchanged mission statements? Because since 1978, there has been no real progress in the field of Israeli abortion laws.

“The law was legislated in 1977 and hasn’t been changed since,” the expert (E.) tells the Magazine. “The language of the law doesn’t acknowledge women’s autonomy to make their own decisions on their reproductive system.”

“The language of the law doesn’t acknowledge women’s autonomy to make their own decisions on their reproductive system.”

E.

However, she added, although the language of the law strips women of autonomy, the health system itself does not, and abortion is accessible and safe for many. Nevertheless, there are still flaws and issues that must be corrected to ensure it is accessible for all.

The women who struggle most with receiving approval for an abortion are women under the age of 40 who don’t fit any of the listed criteria but still have their own individual reasons for seeking an abortion.

“A married woman under the age of 40, where everything is healthy and normal with the pregnancy and also with their own health, she can’t pass a committee,” she continues, adding that in the event that she does receive approval, she will still have to pay for the abortion herself, creating added difficulty.

On the subject of cost, she highlights people from lower socioeconomic backgrounds as those most affected by the abortion laws.

“People from the Palestinian community living in Israel, people from the Arab community who can’t access it in the area they live in because they need extra confidentiality so they have to travel do it somewhere else,” she says, listing some of the most impacted by current regulations.

“We see it with asylum-seekers and undocumented people who can’t access it because they can’t get health insurance, and so it’s expensive and they live in poverty, so it’s a big issue for undocumented people.”

The area of the country in which a person is located will also play a part in determining how easy it is to receive approval for an abortion. As there is no standardized procedure, each panel can decide for itself which questions to ask. This results in some committees being more lenient than others, and some being harsher than average.

While there is no limit as to how many committees one person can request to see, meaning that if one committee rejects their request, they can seek out another, the travel costs, distances and time all add up. And for those who live in the North or South, there are fewer local resources, only increasing the challenge of accessing a committee that will agree to approve those cases.

One of the key issues for abortion reform advocates is the accessibility of an abortion and the importance of giving women the option to choose where they wish to undergo an abortion

Another area in which activists hope to see change is in the comfort and privacy of those seeking an abortion. The activists, together with the Health Ministry under the leadership of Health Minister Nitzan Horowitz, are in agreement that the current system is intrusive and outdated and that this needs to change.

Back in December 2021, Horowitz announced his intentions for the abortion process to undergo an extensive overhaul, with reform in multiple areas.

Among these reforms include the removal of invasive questions that women have had to answer regarding their occupation or pregnancy background.

The questions asked in committee hearings have remained unchanged since 1977, and include items such as “Why did you not use contraceptive methods?” according to a copy of the form obtained by Ynet back in December when the plan to reform the process was first announced.

“It should be taken for granted – the right to a woman’s body belongs to the woman alone.”

Health Minister Nitzan Horowitz

“It should be taken for granted – the right to a woman’s body belongs to the woman alone,” said Horowitz, introducing the outlined changes. “Every decision or medical procedure, such as the choice of whether or not to have an abortion, must be in the hands of the woman. We have no moral right to decide for her how she should act with an unwanted pregnancy.”

As well as changing the way the committees run, Horowitz is also expected to support legislation aimed at permitting any woman to terminate a pregnancy by the 12th week – without having to appear before a hospital abortion committee, which is required by law today.

FOR AS many people as there are who believe that allowing a woman easy access to abortion is a moral right, there are those who believe the opposite – that abortion is morally wrong.

 ONE OF the ads around the country by pro-life movement Be’ad Chaim; this one reads ‘You don’t have to abort.’ (credit: Be’ad Chaim) ONE OF the ads around the country by pro-life movement Be’ad Chaim; this one reads ‘You don’t have to abort.’ (credit: Be’ad Chaim)

Pro-life in Israel

Be’ad Chaim (Choose Life) is the country’s most predominant pro-life organization. Founded in 1988, the organization’s mission statement is to “end abortion and to preserve life in Israel by offering viable alternatives to abortion, resources for mothers in need, pregnancy counseling, as well as education initiatives.”

In addition to working to end abortion, the organization offers multiple services aimed at caring for mothers of newborn children. While there is a strong focus on supporting mothers who have decided against abortion, they also offer counseling and support for mothers who lost children, either due to miscarriage, stillbirth or SIDS (sudden infant death syndrome).

Speaking to the Magazine, Be’ad Chaim director Sandy Shoshani says that in the time since she joined the organization in 2005, they have “saved more than 4,000 lives” through their project Operation Moses.

Operation Moses, Shoshani explains, “provides everything a mother needs for her baby for a full year, including the furniture, strollers, formula, and every month she receives a gift card for about $100.”

“Our goal is to be able to offer women a fair choice to be able to choose life for their child.”

Sandy Shoshani

“Our goal is to be able to offer women a fair choice to be able to choose life for their child,” she continues, “We want to give her the option.”

Asked whether Be’ad Chaim will continue to support the mother and child after the first year of life, Shoshani confirmed that in the majority of cases, extra support is not usually offered, or needed, after that point.

“Our goal is to encourage the woman to get back on her feet... we try to get them on their feet as much as possible, encouraging them either to get some kind of training or get back into the job market,” she explains.

“Because most mothers know that by the time your baby is even a few months old, you’re starting to get back on your feet. You’re thinking ‘what should I do with myself?’ In a year, a woman who has had some kind of ambition and career would be able to get herself back into the market, and that’s what we hope for. We hope to see her back in the job market, able to sustain herself.”

In contrast to the pro-choice advocate interviewed by the Magazine, who believes that the pregnancy termination committees are intrusive and outdated, Shoshani firmly believes otherwise.

“A doctor I spoke to from a hospital in the North of the country said that the line for the committee is like a supermarket line,” she shares, not revealing the doctor’s name. “There could be 10 women waiting outside the door of the committee, and their goal is to go quickly. They certainly don’t tell women the consequences of abortion. They don’t challenge them, they don’t ask them a lot of questions.

“Over 99% of women get approval immediately,” Shoshani states. “So the committee has pretty much justified legalized abortion for the entire country. And now Mr. Horowitz wants to take away the committee and have you just go to your family doctor. And just like any other medical procedure, you can have an abortion.”

Just as reproductive rights activists are campaigning to change abortion legislation in Israel, so too are Be’ad Chaim – but in the opposite direction.

Asked what Be’ad Chaim’s viewpoint is on Horowitz’s intentions to reform the process, Shoshani reveals that they have petitioned the High Court of Justice to ban abortions after 24 weeks.

Should a woman appear before the pregnancy termination committee with a request to undergo an abortion past the 24th week of pregnancy, she will be referred to a committee made up of five members, who, in addition to the other requirements, are specialists in medical ethics, neurology and genetics.

Despite the approval for late-term abortions being granted exclusively to those whose lives will be endangered by carrying to term, or in cases where a baby would be born with severe birth defects, Shoshani believes the practice to be wrong.

“Most countries do not allow abortion until birth. It is a rare situation here. And we’re allowing abortion until birth. And I have to say that although the committee says they are allowed only under extenuating circumstances, my clients [tell me otherwise].”

Late-term abortions

Despite late-term abortions being one of the key arguments cited against abortion rights in both Israel and the US, in reality, only around 1% of all abortions are performed in the third trimester, and the reasons for doing so are exclusively medical.

According to a 2020 Health Ministry report, only 1.9% of 16,430 abortions were carried out after the 23rd week of pregnancy that year, and of that number, 88% were approved due to severe medical defects in the developing fetus. The other 12% of late-term abortions were carried out due to risk to the mother’s life.

Additionally, sometimes these critical late-term abortions could not have been carried out any earlier, as there is no way of knowing the extent of the medical defects before the third trimester.

Research published by University of California Associate Prof. of Obstetrics, Gynecology and Reproductive Sciences Katrina Kimport stated that one of the reasons abortions are sometimes required after the 24th week is because the fetus’s brain fails to develop.

“Because a great deal of fetal brain development happens after the 24th week of pregnancy, there is no way to diagnose this problem earlier,” she writes.

“Because a great deal of fetal brain development happens after the 24th week of pregnancy, there is no way to diagnose this problem earlier.”

Prof. Katrina Kimport

Asked what the alternative is to late-term abortion in cases where carrying to term will endanger the mother’s life, Shoshani evades the question, focusing on the fetus.

To Shoshani and others involved in pro-life advocacy, the idea of carrying a pregnancy for nine months while knowing the baby will have little-to-no chance of survival after birth is still preferable to abortion.

“A client of mine was told that her baby had no kidneys and no fluid and that she should abort,” Shoshani shares. “I said to her ‘Why would you abort the baby?  If he’s going to die, let him die.’ I didn’t say it in that harsh way, but I said why would you choose to do it? If you want, you can give birth and see if there’s any chance. And if he dies, he dies.

“Either way, she gave birth and I’ll tell you something wonderful. The baby did die. He lived for just a few moments because his lungs couldn’t function. But what was beautiful was the mother got to hold him.”

Abortion in Israel: The facts

Contrary to the opinions held by Be’ad Chaim and other Israeli pro-life movements, Israel does not approve an excessive number of abortions each year. Annual statistics have shown that around 20,000 abortions are performed annually, with the number remaining steady for over two decades, despite significant population growth.

In fact, the unnamed reproductive rights expert says Israel has a lower abortion rate than any European country.

“What we’ve seen over the years since we started documenting abortions in 1990 is that the number has stayed consistent,” she explains.

“So percentage-wise, abortions are actually decreasing, which is good. That means that maybe there’s more sex-ed, maybe more accessible, effective contraception, more use of contraceptives,” she explains, adding that there is no way to track contraceptive use in Israel, something she is working on in her research.

Summarizing the opinions of many Israeli pro-choice advocates, she says she believes that while things are far from perfect, they are also far from terrible.

“It’s not catastrophic at all,” she stresses, “but the law still doesn’t see us as subjects, as autonomous subjects. And there are barriers to access, barriers to fulfilling the right to terminate a pregnancy.

“It’s not because someone was evil and sat in the Health Ministry and said, ‘Let’s see how we can create obstacles for women.’ It’s just that there was never a minister or an office that was interested in changing anything.” ■