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A Rabbinic Response to Reversing Roe

When I began my rabbinate at Temple Beth Sholom in Topeka, Kansas a year ago, one of the things I was committed to was being a unifying figure. I have always believed, and still believe, that the role of the rabbi is not to be divisive or to preach politics from the bimah. After all, there is no shortage of places you could go to hear more expert political opinions than mine, and few places in Kansas you could listen to a more expert opinion on Jewish texts and traditions.

Having said all of that, we will talk about our tradition, our halacha, and the decision announced today by five men and one woman to overturn both Roe v Wade and Planned Parenthood v Casey, in effect declaring an end to an era of freedom through guaranteed right to privacy. The Reform movement in America is the largest movement representing most American Jews. We are not the largest because we are less attuned to our faith or for lack of seriousness. While Reform Judaism does not emphasize the observance of the totality of Jewish law, we do not discourage it either. Before we coalesced as the Reform movement in America, a visionary rabbi named Isaac Meyer Wise coined the term “American Judaism” in his writings for the English language Jewish newspaper, the American Israelite. Jewish Americans, given full citizenship for the first time in history by a non-Jewish state, felt tied to the promise of American liberty. I suggest that this deep affinity for liberty drove American Jews into what would be known as the Union of American Hebrew Congregations, known today as the Union for Reform Judaism. We value our American citizenship and the rights that it entails. One of those rights is to practice our faith. Our religious liberty demands that the religious views of others not be forced on us.

Before I explain what I will do, besides talking, I’d like to share a refresher on what our tradition implies about abortion, and why I believe Jewish tradition stands opposed to the effects of the ruling issued today.

Abortion is permitted, and sometimes under Jewish law, it is necessary. Exodus 21:22 states that if people are fighting and a pregnant woman is injured, resulting in a miscarriage, the penalty is not as severe as it would be if the woman or another innocent bystander were killed. The miscarriage of the fetus warrants restitution, but not the same penalty as murder, as confirmed in the Talmud Bavli, tractate Sanhedrin 87b.[1] We can take from this that the Torah values potential life, but not as equal to life. Further, even the great Rabbi Yehuda HaNasi is recorded[2] as ruling that a fetus belongs to the pregnant woman, and is considered as another part of her body, like her thigh is. I am not arguing the chachamim, the great sages would have favored abortion as birth control, but it is clear to me that our tradition does not support the religious extremism in many of the new abortion bans around the country.

Let’s look at a modern example. The most straightforward case is with nonviable and ectopic pregnancies, which occur in 1 in 50 pregnancies.[3] These cases are not viable and will never reach full term. Without treatment, they can lead to uncontrolled bleeding and death.[4] In some state rules that will or have gone into effect, women needing lifesaving care could be denied. In their zeal to enforce a fundamentalist Christian understanding of when life begins, many women will die from a lack of care that our faith believes they should have access to. The Mishnah discusses this, saying: “If a woman is having trouble giving birth, they cut up the child in her womb and bring it forth limb by limb, because her life comes before the life of the child.”[5] I cannot state any clearer than the Mishnah itself, that Jewish women in need of lifesaving medical healthcare, in this case abortion services, cannot be denied without violating their religious right to be cared for and live.

I cannot come to any conclusion on this issue other than that a woman knows her own body, her own mind, and her own situation. If she wishes, she can also consult with her doctor on medical issues and her rabbi or another religious figure to help her decide on matters of religion and conscience. How do I come to this position as a rabbi? I look to the Gemara, which states: P’shita! Gufa Hee!”[6] For those of you who aren’t fluent in Aramaic, let me help: “Isn’t it obvious? It’s her body!” The Gemara continues, saying that it was necessary to teach this because, with our example from Exodus earlier and the two men quarreling who cause a miscarriage, it might enter your mind to say that the fetus belongs to the husband since he extracts the payment. Not so, confirms the Gemara. The court does not hold this way. It is her body, and while there may be some situations in which I would not counsel an elective abortion, I firmly believe that until viability, like Roe held, it is ultimately up to the pregnant woman and no one else.

For this reason, I oppose legislation that would ban or restrict access to abortion. As the Freehof Institute for Progressive Halahkhah wrote in 2019: “in almost every case, it denies a woman the option to make a choice that our halachic tradition would recognize as morally justifiable. This would be an unacceptable violation of her dignity and the freedom of religion that liberal and democratic societies guarantee to their citizens. Indeed, it is more than ironic that the loudest opponents of abortion rights in our communities also tend to be the most vociferous advocates of “religious liberty.” They should not deny Jews and others the possibility of making a choice that, according to my understanding of the halacha, they have every right to make.”[7]

After Shabbat will be the time for action. I am announcing this evening a new fund that I will use, in conjunction with the National Council of Jewish Women, to help women from neighboring states come to Kansas for an abortion if they need help. If Amendment 2 in Kansas passes, which I hope it does not, this fund will be used to help local women from Topeka and northeast Kansas travel to states where they can pursue their healthcare in peace. I would continue to do this even if the State of Kansas were to pass rules like some states have, which punish those who aid women who travel out of state for this purpose. I will also seek meetings with elected officials, not to lobby, but to explain this Jewish perspective on abortion, in the hopes that they will respect our religious tradition as they would ask us to respect theirs. We live in a pluralistic society; we accept more than one idea. How we deal with this dissonance has, and must be, liberty for all to make their own choices. For the second time in American history, a demographic group of Americans, in this case, women, will grow up with fewer rights than the previous generation had. As a religious Jew, I cannot abide it.

May the source of comfort bring comfort and peace to those who feel immense pain at this decision and know that I am with you.

[1] דיני נפשות בפלוגתא דרבי ורבנן דתניא רבי אומר (שמות כא, כג) ונתת נפש תחת נפש ממון

[2] In Bavli Gittin 23b

[3] https://www.healthline.com/health-news/ectopic-pregnancy-and-abortion-laws-what-to-know

[4] https://www.webmd.com/baby/pregnancy-ectopic-pregnancy#1

[5] Mishnah Oholot 7:6

[6] Bavli Arakhin 7a: גמ׳ פשיטא גופה היא איצטריך ס”ד אמינא הואיל וכתיב (שמות כא, כב) כאשר ישית עליו בעל האשה ממונא דבעל הוא ולא ליפסדיה מיניה קמ”ל

[7] https://www.freehofinstitute.org/uploads/1/2/0/6/120631295/on_abortion.pdf

About the Author
Samuel Stern is the rabbi of Temple Beth Sholom of Topeka, Kansas. Ordained by HUC-JIR in Los Angeles in 2021, Rabbi Stern has participated in numerous fellowships, including with AIPAC, the One America Movement, and the Shalom Hartman Institute, and has been published in the quarterly journal of the Central Conference of American Rabbis.
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