To Jews abortion is not a right, nor always wrong   

RABBI DANNY SCHIFF argues a Jewish approach focuses on duties not rights, but there are Jewish reasons to stand up for abortion freedom enshrined in Roe v Wade

There are few US Supreme Court cases as widely known internationally as Roe v. Wade. There are none that evoke as much intense emotion. Understandably so. Roe has guaranteed abortion freedom in the US for almost half a century. Now its fate hangs in the balance. There is much at stake.

Often overlooked in the heated debate around Roe is the fact that even with Roe in place abortion rates have plummeted in the US over the last three decades. In 1990, there were 1,429,247 abortions in the US, but by 2018 that number had fallen by more than half, to 619,591. From 344 abortions per 1,000 live births in 1990, the abortion rate went down to 189 in 2018.

Internationally, those countries with more restrictive abortion laws usually have more abortions, while those with more relaxed statutes have fewer. It is a counterintuitive outcome. It may be the case that when individuals feel that they are in control of their own destiny there is less pressure to abort. Whatever the reason, those who seek to minimize abortions should perhaps be celebrating the societal framework that has been in place since the 1970s for it is likely that it has advanced their cause.

Nevertheless, the legal struggle goes on. Unfortunately, it is a struggle that tends to suppress the possibility for reasoned moral conversations. Consumed with the issue of rights (on both sides), there is little patience for more nuanced ethical concerns.

Judaism, it is important to note, is not a rights-based system. Jewish law is built around mitzvot – personal responsibilities – and places hardly any emphasis on individual rights. Thus, the statement that “a woman has the right to do with her own body as she sees fit” cannot be Jewishly supported. The Jewish approach is that our bodies belong to God, and that we each have a duty to be good custodians of our bodies because they are on loan to us.

As is true for most legal systems, Jewish law does not regard abortion as a foundational issue that should be enshrined in a constitution, but rather as a matter that should be the subject of prudent and limited legislation. Hence, when it comes to abortion, Jewish law calls for the application of several moral principles, all the while acknowledging that the details of each instance need to be considered individually. Built into the Jewish structure is the notion that Jewish teachings should be flexibly applied to personal circumstances in consultation with a competent rabbi.

Central to the Jewish principles surrounding abortion is the idea that maternal life is superior to foetal life. Judaism affirms that the foetus is a life from conception, but it differs from other legal systems in holding that there are actually two versions of life: the life of a born, embodied, ensouled person (a nefesh), and the more limited form of life that a foetus represents. Jewish texts identify the foetus as a form of life in order to communicate that the foetus is precious in its own right. Consequently, without some weighty reason, Judaism holds that foetal life should be protected.

The idea of maternal life having superior value to foetal life has legal ramifications: if a mother’s life is at stake at any stage of pregnancy, not only is it permissible to abort the foetus: it is mandatory to do so. In traditional Judaism, there is a difference of views as to whether the mother’s superior standing might allow for abortion in circumstances less severe than a direct threat to her life. Some think that any abortion in less-than-life-threatening circumstances would be an unacceptable act of killing the foetus. Others are prepared to countenance abortions in varying serious situations that would have deleterious implications for the mother, including rape and incest. However, given the standing of the foetus as a life, none of the traditional halakhic sources countenance abortion for economic reasons or for timing issues.

In America, Jewish legal writings that emerge from the Conservative and Reform movements largely concur with this approach. The Conservative movement allows for abortion when the “continuation of pregnancy might cause the mother severe physical or psychological harm, or when the foetus is judged by competent medical opinion as severely defective”. The Reform movement’s most relevant responsum concludes by cautioning that “we do not encourage abortion, nor favour it for trivial reasons, or sanction it ‘on demand’.” Neither movement approves of the taking of foetal life without a substantive physical, mental, or emotional threat to the mother.

Judaism, therefore, neither supports blanket abortion prohibitions nor unlimited personal responses. Some abortions are required in Jewish life, at the minimum to save the life of the mother. But because Jewish law regards foetal life as valuable, abortions are not seen to be appropriate in every instance when an individual might desire to end her pregnancy.

What will happen if, sooner or later, Roe is rejected by the US Supreme Court? The answer is that some US states will legislate liberal abortion laws that will leave abortion decisions in the hands of individuals, while others will enact laws that will come close to outlawing abortion. For Judaism, the latter approach will be considerably more problematic. Where liberal laws prevail, it will be possible for a Jew to follow the precepts of Judaism by voluntarily foregoing abortions that the civil law permits. Conversely, where restrictive laws are in place, there will be abortions that most rabbis will allow which the secular law will likely prohibit. It is not a small difference. In certain states, if Roe goes away, the impact on Jews across the Jewish spectrum will be significant.

Long before anybody ever heard of Roe v. Wade, Jewish sages were having serious conversations about the ethics of abortion. Through the centuries, the tradition developed wisdom that continues to advocate an intriguing middle-ground approach. In the highly polarised reality of our time, that approach may yet have much to offer in America and beyond.

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Photo: Members of Jews For Racial and Economic Justice and IfNotNow hold signs that say "Baruch Hashem For Abortion" at the Foley Square Rally on Tuesday. (Jacob Henry/JTA)