Why Jewish Law Does Not Agree with the Supreme Court
If you are “pro-choice,” meaning you believe that women have the right, under all circumstances, to choose abortion as an option for an unwanted pregnancy; or if you are “pro-life”, asserting that ending that fetal life at any stage after conception, for any reason, is akin to murder, then Jewish law is going to disappoint you both.
What some people like to call the “Judeo-Christian tradition,” implies that Judaism and Christianity share a common heritage regarding key moral and sociopolitical issues (never mind theological ones). But abortion is a good test case of why that phrase is often inaccurate and sloppily applied. When Evangelical Christians and others march outside of abortion clinics and scream about genocide, invoking images of the Holocaust and other atrocities, they certainly do not mirror the nuanced view of halacha, but nor for that matter do the advocates for abortion on demand. Halacha, the totality of laws and ordinances that have evolved since biblical times to regulate Jewish religious observances, is uninterested in Democrats or Republicans, right or left, liberals or conservatives. It is a long and winding path of human beings trying to interpret what they see as the “divine will,” but forever modulated by the circumstances of the times and changes in historical situations.
There are no cases of planned abortion in the Torah. Only one tangential possibility is reviewed, in Exodus 21, and the language of the text entails a world of difference in how Jews and Christians ended up thinking about ending a pregnancy: “If men fight together, and [one of the parties] strikes a woman who is carrying a child, so that her fruit departs, and yet no ason follows, he shall be surely fined...and he shall pay as the judges determine. But if there is ason, [then it is a capital offence] and you will give life for life.”
The case in Exodus refers to an accidental abortion which was caused by a man who, in the midst of a fight with another man, strikes a pregnant woman inadvertently, causing her to spontaneously miscarry. Here is a sterling example of how worlds of law can hinge upon one word. The Hebrew word ason, which I have left deliberately untranslated, was rendered very differently in the Jewish and Christian traditions. Judaism saw the word as referring to “harm” or “misfortune,” and the harm it was referring to was that caused to the mother. If the consequence of the fight is that the woman is unharmed but the fetus is killed, then the guilty party has to pay a fine. But if the woman is killed in the midst of the melee, then her assailant is actually guilty of a capital crime.
The passage demonstrates that there are different levels of “personhood,” and that the personhood of the mother takes precedence over that of the fetus. Later halachic writing translated this to mean that if carrying the fetus carries a risk to the mother’s life—physically, but also possibly emotionally in certain cases—then abortion is warranted. By the same token, however, it does make a case for fetal dignity to a certain extent.
Rabbi Michael Gold, in his fine book, Does God Belong in the Bedroom?, summarizes with clarity how Judaism stands outside of the pro-life/pro-choice binary: “Jewish tradition is unequivocal in stating that abortion is not murder. Judaism sees the status of the fetus very differently than most people in the pro-life camp see it. According to Jewish law, the fetus is not yet fully a human being...[However] the verse from Exodus is not a blanket permission for abortion. It simply states that abortion is not murder. To say abortion is not murder does not automatically imply that it is therefore permissible [simply as a matter of choice].”
In early Christianity, the word ason carried completely different implications. The Septuagint [the pre-Common Era Greek translation of the Bible] applied the word to the fetus, not the mother, and translated it as “form,” so that the distinction was between a fetus that “had form” and one that was “formless.” The scholar Rachel Biale explains: “The Church Fathers ruled that a fetus is formless until the fortieth day and became formed thereafter. Thus, killing an unformed fetus was not a capital crime but aborting a formed fetus was. Even that distinction was abolished in later Christianity because the soul was believed to enter the fetus at the moment of conception, and thus aborting a fetus even prior to the fortieth day meant dooming the soul to hell since it could not gain its salvation by baptism. Beginning with the same biblical source, the Catholic church developed an absolute prohibition on abortion, while Jewish law found room to permit it.” [my emphasis].
The subsequent history of attitudes towards abortion in the two religions is quite complex and not our subject here and, of course, Christianity and Judaism both have different denominational sects and approaches towards a variety of moral issues including this one. But anyone who believes that the overturning of Roe vs. Wade unequivocally mirrors the Jewish position is not informed as to how Judaism and Jewish law works. For one thing, Judaism never carried the baggage of original sin that needed to be negated through baptism, so from a Jewish perspective, though an abortion is not a light matter by any means, neither does it have any theological implications for that fetus not having entered the world.
I would cite here, in conclusion, the words of the great Israeli halachic decisor, Rabbi Eliezer Waldenberg [1915-2006], a deeply religious man who was a judge on the Supreme Rabbinical Court of Jerusalem, and ruled about the permissibility of aborting a Tay-Sachs fetus [translation is from Rachel Biale]: “One should permit abortion... even until the seventh month of her pregnancy. If indeed we may permit an abortion according to the halacha because of pain and suffering [of the mother], it seems that this is the classic case for such permission. And it is irrelevant which way the pain and suffering is expressed, whether physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh.”
It would be disingenuous to claim that the halacha, as traditionally understood, is a major crusader for bodily autonomy. Witness both the constraints over what one can eat—kashrut law—and even the restrictions on marital sex during a woman’s menstrual cycle. But as Rabbi Waldenberg points out, what is of enormous significance for Jewish law, is a woman’s pain and suffering in bringing a child into the world that she does not want to carry (the Tay-Sachs example having further ramifications in principle). Beyond politics comes the plight of each individual woman who faces this momentous choice.
In the end, we must move forward as a society to ensure that children enter into a world of caring and commitment. As the American novelist Marge Piercy writes, “Every baby born unloved, unwanted, is a bill that will come due in twenty years with interest, an anger that must find a target, a pain that will beget pain.” Judaism understands that price, and forges an intricate legal path to respect and acknowledge the positions of all parties, in the unending quest to create a better world.