moment debate
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Would a ban on abortion curtail Jews’ religious freedom? No. Abortion in general, at least abortion at will, is not mandated by Jewish religious law. There are notable exceptions: If the mother’s life is in danger, then she might be required to have an abortion. Some argue that it’s in the best interest of the Jewish community that abortions stay legal and safe, in order to give women the freedom to have abortions in cases where it is mandated or permitted by halacha. For this reason the ultra-Orthodox Agudath Israel have historically submitted briefs in Supreme Court cases with the pro-choice camp so that abortion will remain safe, legal and, at least in their community, rare. They are prioritizing their specific interests over their general values. There may be a certain advantage to that approach, but I don’t think it’s a question of religious liberty, just a question of what role the government should play.
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If Roe v. Wade is overturned, the Jewish community must introduce nuance into the debate. SHLOMO BRODY for a fetus: It’s not a full-fledged human being, but in general it should be protected. One should violate Shabbat in order to save the life of a fetus. But Jewish law does not share the Catholic view that full human life begins at conception. And this allows for some flexibility to permit abortions in certain limited circumstances.
Are there circumstances where Jewish law permits or even requires abortion? There’s a widespread consensus that women may and sometimes must have an abortion when their life or health is in danger. In other limited cases, opinions are mixed. The clearest indication that we don’t attribute full human status to a fetus is that feticide is not treated like homicide in the Bible. A murderer can be subject to the death penalty. A person who kills a fetus is not, and Exodus 21 seems to punish such an action via tort law. It’s bad, but far from the equivalent of killing someone.
What would happen to those cases in a post-Roe v. Wade environment? If Roe v. Wade gets fully overturned, which I doubt will happen, presumably abortion then goes back to the states. Many will preserve very liberal abortion laws. Others will be more restrictive, but I predict they will still permit abortions when the mother’s life is in danger, and probably make exceptions for rape or incest or other cases where Jewish law mandates or permits abortion. A stricter ban, such as a personhood amendment granting the fetus full human rights from conception, would be different and unwise. The Jewish community would need to work against that because it would create ambiguities about the nature of a fetus that could indeed harm our ability to get an abortion when necessary. Maybe I’m naïve, but I think it’s highly unlikely that the court or the legislatures would do that. America has a deep-rooted tradition of respecting religious practices. I hope and anticipate that whether in the Supreme Court or state legislatures, those with wellgrounded arguments that their religion permits some abortions would have access to exemptions.
Does Jewish law support a pro-choice position, then? If by pro-choice we mean the woman has full autonomy over her body and can decide at will not to keep a pregnancy, I do not think Jewish law supports that. Jewish law recognizes a special status
Are Americans debating abortion within a Christian framework? It’s unfortunate that the “religious perspective” as portrayed in public discourse is the Catholic or Southern Baptist view that life begins at conception, which is not the traditional
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Jewish view. But abortion also shouldn’t be framed as a religion-and-state issue. Many (not all!) on the pro-life side are inspired by religion but believe their views on abortion are also rooted in reason or philosophy. It would be best if we turned the conversation more toward what’s the best way to decide among competing visions of life and liberty in a diverse and pluralist society. In general, in democratic societies, that’s done through the legislatures. What would a Jewish framing of the abortion debate look like? As with much political discourse, the abortion debate is polarized. Judaism offers a more nuanced perspective. Polling has regularly shown Americans are much more conflicted on this issue than the extreme positions that are portrayed. They may think abortion is sometimes reasonable, without saying it should be taken lightly or allowed in all circumstances. They may recognize a fetus is not a full-fledged human being but is still clearly something we care about. At the same time, Jewish law does not believe life begins at conception and does not see feticide, even late in pregnancy, as equivalent to homicide. If Roe v. Wade is overturned, the Jewish community must try to introduce some of this nuance into the debate. From a Jewish perspective, it would also be wise for the states that limit abortion to increase access to contraception. Although the issue of contraception is complex in Jewish thought, it’s very different from abortion. We’d much prefer people use contraception rather than abortion as birth control. Rabbi Dr. Shlomo Brody is the co-dean of the Tikvah Online Academy. His book, A Guide to the Complex: Contemporary Halakhic Debates, won a National Jewish Book Award.
