According to a 2015 Pew Research Forum survey found, 83% of American Jews, more than any other religious group, said abortion “should be legal in all/most cases.”
And that’s not just the position of secular American Jews. The Conservative Movement’s Committee for Jewish Law and Standards declared it to be a Jewish practice and belief in a statement from 1983, given the risk of physical or emotional harm to the woman, or if the fetus had “serious malformations”, as stated then, abortion was permitted. The statement suggests the woman considers “the many serious legal and moral issues involved” and speaks with her family and experts to help with her decision.
Even in another opinion, originally drafted in 1959 and adopted by the CJLS in 1983halachic makers have concluded that while abortion is “morally wrong”, it may nevertheless be necessary for “therapeutic reasons”.
It is not just American Jews and religious movements that are taking this path. Consider that in Israel, abortion is legal. A woman sees a three-person panel, usually consisting of a social worker and two doctors, one of whom must be a woman. They consult her and examine the case. Almost all (98%) abortions are approved by panels in Israel, and about 40,000 in total take place there every year.
The law stipulates four criteria, each of which is sufficient for approval: whether the woman is under 18 or over 40; if the fetus is in danger; if the mental or physical health of the mother is in danger; or if the pregnancy occurs outside marriage or results from rape or incest. Moreover, there are no laws limiting when an abortion can be performed, and a woman whose application is rejected by the committee or who simply does not want to appear before it, can still have an abortion in a private clinic.It is estimated that about halfabortions performed in Israel are performed in private clinics. Abortions are fully paid for by the state for women between the ages of 20 and 33, and subsidized abortions have been provided for those outside this age bracket. Likud, Labor and Israelis across the political spectrum support this system and even for the rabbinate it is not a burning issue, it is just how things are in Israel.
But in the United States, after today’s Supreme Court decision striking down the constitutionality of a federal abortion right, we Americans are seeing women’s rights being dangerously, even fatally, restricted.
I would also argue that the decision does something else, something insidious and something I wish conservative Americans, like those who are Supreme Court justices, had considered.
Overthrowing Roe prevents expression of the religious beliefs of all Americans, like Jews, who do not view abortion as murder in the first place. The same goes for all Americans who, for whatever reason, feel this way.
While I appreciate the arguments about the flaws in the legal processes that led to Roe in the first place, this issue is only so important for the sheer fact that some Americans wish to impose their religious views on abortion on the rest of the world. ‘between us. And it is a sacrilege before the altar of American law. It’s something quite different.
From the Torah, the weight of Jewish law (our being Jewish means that nothing can be unanimous) rests on the fact that a fetus has a different status from a born person and that its death is not murder. From Exodus 21:22-23, the penalty for causing the death of a fetus is a pecuniary penalty, as opposed to capital punishment. The Mishnah states, quite graphically, that “a woman having difficulties in giving birth, it is permissible to cut the child to remove it because its life takes precedence. (Ohalot 7:6).
Later, the great legal minds of Rashi and Maimonides argue that this is allowed either because the fetus is not the same as a breathing person, or even if it is, if it presents a risk for the mother, it is a Rodefa “pursuer”, whose threat of danger to the mother can be stopped up to and including ending the life of the pursuer.
This brief review of Jewish law might still lead to wanting severe restrictions on the enforcement of abortion, or on the thinking surrounding abortion, but regardless, all of these sources make it clear that we do not consider not conception as the beginning of life.
In this way, Jewish views are part of the tension of “Western Civilization” dating back to the Stoics, who saw life beginning at birth, so abortion was not murder for them.
Contrast this with the sources informing Christianity, which aligned themselves with the Platonic view that life began at conception and therefore read Jewish religious texts with this foundation in mind and thus came to prohibit all abortions because it was about taking a life.
Now, if that’s really how you believe, I can understand, really I can, that you would want to impose your views on others and vote accordingly and you might think that A) if you could get a majority of Americans to think like you and B) the country is founded on “Judeo-Christian values” anyway, it would be “right” for this position to become law.
However, the United States, in terms of laws, is designed to protect the rights of its citizens regardless of religious beliefs. He doesn’t consult or even care what Mormons or Muslims think about the sale of alcohol, even if their religions prohibit it, because American law has no category of interest in the matter. – it limits alcohol for minors and everyone can get it legally, and that’s it. We do not allow their moral discomfort or objection to limit the democratic laws of the land which are based on the separation of church and state.
In fact, in more sticky cases, say with Bob Jones University v. United Statesthe state can even intervene against individuals’ religious beliefs because of the state’s responsibility to uphold the rights of its citizens, as in this Supreme Court case where American anti-racism values ”beat down” BJU’s rights to be exempt from tax as a religious organization.
My understanding, as a Jew, therefore, is that to overthrow Roe, or perhaps more accurately, elevate abortion concerns to the place they occupy in American culture and law in the first place, is a mistake of the view of Jewish law in that it confuses God’s will that human life begins at conception, which is certainly not the case.
Moreover, it confuses the will of God by ignoring the rights of women to value their own lives – both because pregnancy is “part” of their body and also because all the dangers that pregnancy brings will be for them.
And furthermore, US law does not define fetuses or embryos as persons under the law (corporations are persons, however!). Thus, the state should technically have no legal “concern” about their rights or protections.
Like me, many of you may find the idea of abortions tragic and sad for everyone involved and wish that the situations that necessitate them did not happen at all. It would be no small feat for the woman who would trust me to give her sound advice on such a decision. However, these matters are not covered by law.
As Americans, we simply cannot tolerate decisions that could lead to laws imposing certain Christian notions of when life begins on all Americans – again, because if it weren’t for that wouldn’t be the problem. As one of my colleagues, who is also a lawyer, quoted, “the purpose of law is to make society possible. We turn to the law only when some form of conduct is so contrary to the existence of society as an instrument for free and self-sufficient people to live together that legal action is necessary.
I am not a politician or a political activist. I hope that what I teach can influence these people to act in a fair, just and above all peaceful way for the benefit of all. While the Court’s decision leads us away from the right and the just, I believe in America, as I do in God, that justice, and with it holiness, will prevail in time.