Abortion, Roe vs Wade and Jewish law

The nuanced Jewish perspective on abortion can appeal to a broad swath of Western society.

 HALACHA PROHIBITS all forms of unnecessary bodily harm, such as tattoos. (photo credit: TOMER NEUBERG/FLASH90)
HALACHA PROHIBITS all forms of unnecessary bodily harm, such as tattoos.
(photo credit: TOMER NEUBERG/FLASH90)

In light of the reported intention of the US Supreme Court to overturn Roe vs Wade, many Jewish groups have taken strong positions on what they feel should be American law on this matter. These public stances raise the larger issue of Jews in Western countries feeling responsible toward influencing public policy in accordance with Jewish values. This is particularly true with life and death questions, such as abortion, euthanasia and other weighty matters. Without taking a stand on this particular debate, I’d like to reflect on the larger dilemma regarding Jewish political activism.

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 absent from traditional Jewish sources.

While the Bible is a primary source of notions of human dignity, this does not mean it agrees 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, “despises the will of the Creator and does not want to serve Him,” as one authority put it. Human dignity does not entail granting full autonomy over one’s body.

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. Harming or killing a fetus is certainly prohibited. Most importantly, based on select verses in Genesis, the Talmudic sages concluded that feticide is generally prohibited under the seven Noahide saws 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. The same would be true for mercy-killing: it’s forbidden to proactively end the life of a terminally ill patient, irrespective of their faith or that of the physician.

 World's smallest Torah (credit: NATIONAL LIBRARY OF ISRAEL) World's smallest Torah (credit: NATIONAL LIBRARY OF ISRAEL)

Halachic nuance

However, this does not mean that Jewish law grants a fetus the same status as a full-fledged human or prohibits abortions entirely. We certainly allow killing a fetus to save a mother’s life. Classic sources, moreover, do not equate feticide with homicide. Therefore, in certain circumstances, some decisors will allow an abortion even when the mother’s life is not endangered. This is particularly true within the first 40 days of embryonic development from fertilization (roughly equivalent to the seventh to eighth week of gestational pregnancy, as calculated from the mother’s last menstrual period), when Halacha grants the fetus an even lower moral status.

THIS NUANCED perspective complicates matters when it comes to Jewish political advocacy. On the one hand, many Jewish lobby groups, including the Agudath Israel, have historically opposed the overturning of Roe vs Wade because they feared that some states would prohibit abortions in cases when Jewish law mandates it (as when a mother’s life is endangered) or allows it (such as cases of rape or fetal degenerative diseases). At the same time, in most Western countries, a majority of on-demand abortions would not be acceptable under Jewish law. Yet, are Jews responsible to prevent non-Jews from violating one of the Noahide laws? One could argue, after all, that this is part of our mission to be a light unto the nations.

Talmudic law explicitly forbids Jews to facilitate a non-Jew violating one of their prohibitions, based on the biblical verse, “You shall not place a stumbling block before the blind” (lifnei iver). The classic example given is that a Jew should not hand to a gentile a limb taken from a live animal (ever min ha-chai), the dietary prohibition imposed on non-Jews under the Noahide laws.

Yet, it’s disputable whether a Jew is prohibited from aiding and abetting a gentile to commit one of these violations when they’d be able to do it on their own anyway (e.g., pick up the prohibited limb by themselves). While some decisors deemed this problematic, the majority felt that it was permissible.

Thus Rabbi Moshe Isserles, for example, permitted medieval Jews to sell items that would be used in Christian services since there was no real barrier for their gentile neighbors to get such articles anyway. For similar reasons, it would not be a problem for a Jewish baker to making a wedding cake celebrating nuptials prohibited under Jewish law (such as an interfaith union).

Indeed, as Rabbi Michael Broyde has shown, most classic authorities (with the notable exception of the late Lubavitcher Rebbe) believe there is no obligation to teach and persuade gentiles about the Seven Noahide Laws. This approach allows Western Jews to prioritize their interests and protect their practices when considering political dilemmas.

That said, many authorities have noted that there is good reason for Jews to promote our values in the public sphere. For starters, any moral corruption in society affects us all, Jew and non-Jew alike. Moreover, we want to uplift the ethical state of our countries and promote the dignity of all citizens. Perhaps most importantly, it’s a great kiddush Hashem (sanctification of God’s name) when Jewish wisdom is shared in the public sphere and valued for its insights. As I’ve argued in The Federalist, Moment Magazine and elsewhere, the nuanced Jewish perspective on abortion can appeal to a broad swath of Western society.

One hopes that Jews will take advantage of this contentious moment to spread Jewish wisdom throughout the land.■

The writer, author of the award-winning Guide to the Complex: Contemporary Halakhic Debates, was recently named as the executive director of the Halachic Organ Donor Society.