This Wednesday, January 22, marks the forty-first anniversary of the landmark U.S. Supreme Court decision Roe v. Wade, which effectively legalized abortion, arguing that a Texas law making it illegal to assist women in obtaining abortions violated the due process clause of the 14th Amendment.
This anniversary coincides, most poignantly, with the reading of the Torah portion Mishpatim (Exodus 21:1- 24:18), which encompasses what scholars refer to as the “Covenant Code,” an array of laws dealing with all facets of life, including both apodictic ritual laws, as well as casuistic laws pertaining to jurisprudence, torts, and damages, indicating that Torah laws were to apply to all aspects of communal and interpersonal life in the regulation of a just social order.
This relatively small textual portion (Exodus 20:22-23:19) includes a substantive amount of mitzvoth (the biblical scholar William J. Doorly counts fifty two commandments) which would later form the basis for much of the Talmud’s discussion of torts and damages (as codified throughout Seder Nezikin), and it is within this context that the Torah offers a glimpse into the status of the fetus, which can shed much light on the acrimonious debates in our time between pro-choice and anti-choice religious figures.
Exodus 21: 22-25 presents one of those casuistic “what-if” scenarios: “And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.”
In this case, a pregnant woman miscarries as a direct result of the physical attacks of two men, and in spite of this direct, albeit unintentional, termination of the pregnancy, the penalty for murder is not dispensed for causing the death of the fetus, but rather, monetary restitution is paid to the woman’s husband. If the fetus had the status of a human being, the penalty would have been capital punishment, as was prescribed in that context for causing the murder of a human being. However, the biblical text here carefully distinguishes feticide from murder, on the basis that death is not the enumerated, lex talionis punishment doled out in a case of feticide. Furthermore, Baptist scholar Graham Spurgeon succinctly states that this demonstrates that “the Bible clearly shows that a fetus is not a person.”
This reasoning even later evidenced itself directly in a ruling of the Radbaz. In his responsa from manuscript, 1975 (no. 22), the Radbaz dealt with a case of a Kohen (priest) who hit a pregnant woman and caused her to miscarry. Ordinarily, priests who murder are forbidden from fulfilling their priestly duties, such as blessing the congregation with the Aaronic Benediction, but the Radbaz rules that this Kohen is allowed to continue blessing the congregation, since the fetus is not yet a person, and thus, its killing cannot be considered a murder.
Judaism’s primary concern is the preservation of life. The word “life” appears at least 400 times in the Tanakh, and the Talmud tells us that taking a life is akin to destroying an entire universe (Sanhedrin 37b). The restrictions of ritual observances, such as the Sabbath, are suspended when those restrictions are incompatible with affirming and propagating life, and God is described as fundamentally Life-giving and Life-affirming.
However, for human beings, affirming life in our actions and decision-making is fundamentally intertwined with the dignity of free-will, and the moral agency endowed to us to choose and make decisions affirmative of life in its fullest conception and understanding. Choice is sacred, and fundamentally, choice is a Divinely-ordained means to affirming life in its totality and complexity: “I call heaven and earth to record this day against you, that I have set before you, life and death, blessing and cursing: therefore choose life, that both thou and thy seed may live.” (Deuteronomy 30:19). To affirm both the sacredness of life and the sanctity of choice are not mutually exclusive, but rather, is a call to duty to make moral decisions in a sophisticated manner which takes into account the needs of all, constituting a sacred duty.
For Jews, ethical decision making takes into account many competing truths, needs, and interests, and rarely do moral dilemmas lend themselves to binary, “black-and-white” solutions. This fact has animated much of the process of Jewish jurisprudence; halakhic rulers take into account a variety of mitigating circumstances, given the circumstances and needs presented by the moment, particularly as seen in a study of the relevant case law involving abortion. The sages of the Talmud were deeply sensitive to the fact that the life of the mother (in the fullest and broadest sense of the term “life”) takes absolute precedence over the status of the fetus. The fetus is described as having no independent legal status of its own (in line with the biblical view that the fetus is not an independent human being), and is called ubar yerekh imo, “a limb of the mother,” in several places (Hullin 58a and Gittin 23b). The scholar E.E. Urbach (in his classic study, The Sages, p. 243), notes that this view of fetal dependence was dominant; “among the Tanaim (the early generation of Talmudic sages) we do not find anyone who upholds, in the realm of halakha, the view that the fetus, while still in the womb, is a separate body.”
The scholar Carter Heyward expresses this principle of absolute fetal dependence in compelling terms: “the fetus does, indeed, have its own sacred character as the beginnings of human life. But prenatal life cannot, or should not, be accorded a full range of human rights such as those for which women, children, and other socially, economically, and politically marginalized people continue to struggle. The unborn fetus should not be empowered legally to make the same moral claims on our society [as a human being]. The latter should be, in the full legal sense, a person. The former should not be because, until birth, the rights of a fetus cannot be determined morally apart from those of the pregnant woman. The fetus’ “rights” must be understood as relative to the woman’s; and the woman must be understood as the person best able to determine the moral relation between her own well-being and that of the fetus.”
This view of fetal dependence, coupled with the understanding that the mother’s life takes absolute precedence over that of the fetus, is even reflected in the later Talmudic ruling that abortion is legally mandated when the mother’s life is in mortal danger (Sanhedrin 72a), and in what constitutes the Talmud’s most thorough discussion of abortion (Arakhin 7a-b), the definition of “life” is taken in its most expansive form, to include psychological and social factors, as well. The Talmud there explains that a woman about to be executed by the court is, if pregnant, aborted, on the grounds that the woman’s shame is incompatible with her own affirmation of life. Therefore, notes my mentor Rabbi Dr. Alan Yuter, “the condemned woman’s shame provides sufficient warrant to confiscate what Jewish law in its canonical statement defines as property (i.e. the fetus). We have in this passage an explicit warrant for discretionary abortion.”
Furthermore, the late, great jurist Menachem Elon notes that “the majority of the later authorities (aḥaronim) maintain that abortion should be permitted if it is necessary for the recuperation of the mother, even if there is no mortal danger attaching to the pregnancy and even if the mother’s illness has not been directly caused by the fetus.” (See the Responsa of the Maharit, #99).
Rabbi Yaakov Emden permitted abortion “as long as the fetus has not emerged from the womb, even if not in order to save the mother’s life, but only to save her from the harassment and great pain which the fetus causes her” (She’eilat Yavetẓ, 1:43). The imperative to preserve the mother from shame, as well as to spare the fetus from a lifetime of injustice was also inherent in a ruling which permits a fetus that would be born a mamzer, an illegitimate child under Jewish law, to be aborted, on the grounds that bringing a mamzer into the world would perpetually serve to cause a mother mental shame and anguish (see the Responsa Rav Pealim of the Ben Ish Chai, Even haEzer 1:4).
Other rabbis permitted abortion in cases where pregnancies are not conceived under conditions of mutuality; Rabbi Yehuda Perlman (Responsa Ohr Gadol #31) ruled that in the case of rape, a woman is permitted to terminate the pregnancy, on the grounds that is cruel and jejune to force a woman to nurture within her alien seed, implanted within her against her own will and consent.
Rabbi Yair Bacharach posited that on technical legal grounds, there would even be no legal bar to abortion in the case of a child conceived out of wedlock by an adulterous woman, in order to save the woman from shame (Havvot Yair, #31), and it is from this position of leniency that many contemporary poskim permit abortion for many broad, life-affirming reasons.
The author of the book of responsa Levushei Mordekhai (Rabbi Mordechai Leib Winkler) ruled unequivocally that a serious danger to mental health or emotional wellbeing (tiruf da’at) is tantamount to a risk to one’s physical wellbeing, and he explicitly allows abortion in order to preserve maternal mental health. Hakham Benzion Uziel, the first Sephardic Chief Rabbi of Israel, who was noted for his great sensitivity towards the changing, more empowered status of women in society, ruled, for instance, that abortion is permissible, even for a ta’am kalush, the slightest possible reason (Mishpetei Uziel, Hoshen Mishpat 3:46).
In his ruling sanctioning abortion in a case where pregnancy threatened a woman’s hearing, he clearly relies on the Talmud’s discussion of a woman’s shame as grounds for terminating a pregnancy in Arakhin. Shame, emotional pain, spiritual torment, and anguish in any form are valid grounds for a woman to terminate the pregnancy, according to this expansive ruling, as Hakham Uziel begins from the perspective that there exists no real legal prohibition to abortion in Judaism. He rules that abortion is permissible for any reason which can benefit maternal well-being, at any time prior to the onset of labor. Thus, for Hakham Uziel, any abortion undertaken for any consideration of merit by a woman is a halakhically-permissible abortion.
This view, considerably, is indeed, “pro-life” in the sense that it affirms the life of the mother in the broadest sense of the term. Judaism values life that is lived abundantly, fruitfully, and constructively, and when moral agency is exercised, people become partners with G-d in advancing beatific vision. Thus, when mental anguish, emotional pain, shame, social circumstances, and/or economic difficulties raised by carrying a pregnancy to term present themselves, according to Hakham Uziel, a woman may choose to terminate her pregnancy.
Hakham Uziel would indeed agree with the view expressed by Katharine Hancock Ragsdale, another feminist of faith (and an Episcopal priest), who declared that abortion undertaken when a woman’s emotional state, professional prospects, academic life, or ability to exercise Divine gifts in her life constitutes a blessing. Quite vividly, these rabbis use the image of Maimonides, that a fetus which threatens the mother’s “life” (in its broadest sense) is akin to a pursuer designing after her life, and therefore, one is allowed to squelch the pursuer’s path in its tracks (Laws of the Rotzeach 1:9).
Likewise, poskim in recent years have been gracious in permitting abortion in cases where fetal anomalies are incompatible with life. Rabbi Joseph B. Soloveitchik, the dean of American Centrist Orthodoxy for much of the 20th century, was asked whether abortion of a Tay-Sachs fetus was permissible, and his pithy, direct answer was, “have you ever seen a Tay-Sachs baby? We had a Tay-Sachs baby in Boston. I tell you that you can abort a Tay-Sachs fetus.”
The posek for Shaarei Tzedek hospital in Jerusalem, Rabbi Eliezer Waldenberg, dealt with abortion no less than six times in his responsa, and he argued that abortion of a Tay-Sachs fetus was permissible due to the mental anguish, great need, and pain and suffering involved (Tzitz Eliezer, 13:102). In another case, he permits the abortion of a fetus that tested positive for Trisomy-21 (Down’s syndrome) (Tzitz Eliezer 14:101). He ultimately relates this not only to the life the fetus would suffer, but also to the character of the families involved and their ability to deal with the pressures and problems of raising a child affected by Down’s syndrome. Acknowledging that the mother may be put through mental anguish by carrying such a pregnancy, and that she may not be able to deal with the pressures, the halakhic decision must therefore take both the medical situation and the spiritual strength of the involved parties into account.
This analysis of halakhic sources demonstrates that Jewish law is primarily concerned with the needs of women in the context of abortion, and women’s ability to make responsible choices affecting their own health and well-being is respected. On this day, we commemorate the fact that reproductive choice in our country allows women to work through such complex personal and moral decisions in consultation with their consciences, their families and friends, their rabbis, and through their relationship with God.
For Jews, the gift of choice is a sign that the Holy One is at work in the world. Complex moral decision-making that affirms the lives of women is a sign of Divine inspiration and calling. The pen strokes and open hearts of courageous rabbis such as Hakham Uziel and Rabbi Waldenberg, who take into account the moral complexities and grey areas of life in their rabbinic jurisprudence, are likewise a sign that grace is active and alive in our world, and that this grace permeates halakha’s great concern for women’s needs. Halakhic Jews should rejoice on the occasion of Roe v. Wade being passed, as this decision permits Jewish women, as well as women of all faiths, to make responsible reproductive decisions reflective of the depths and dimensions of their traditions.
May all humans exercise with reverence, sanctity, and grace their God-given ability to affirm life and pursue it through the gift of sacred choice, in the broadest sense, in the words Jews use to bless the new month after the model of the sage Rav: a life of peace, a life of good, a life of blessing, a life of abundance, and a life of honor, and a life devoid of shame or disgrace (Berakhot 16), for the benefit of all of God’s creation.