ACUTE ANGLES: Roe v Wade Reversal – Cause for Celebration or Consternation?

Hi Rabbi.  I hope you are well.  As you know,  the United States Supreme Court has overturned Roe v. Wade, I am interested in how you think the Jewish religious institutions should respond to this, knowing that aspects of it go directly against the core of our approach to abortion which prioritises the health of the mother, does it not?  Your thoughts?  Elana

Dear Elana,

I received your question on the day that the US Supreme Court made its landmark decision, potentially altering the landscape for abortion choices in the USA. Since then, the major Orthodox representative bodies in the USA have already made their positions clear and fascinatingly there has been ostensibly a significant divergence of viewpoints which can be summed up as either (a) enthusiastically supportive and (b) ambivalent.  I will outline both viewpoints and explain why I believe both stances are valid and are not as divergent as appears.

Since I know you as a halachically-observant Jewess, I assume that by “our approach” you are asking from a halachic perspective. I shall not even attempt to navigate the complexities of the nuances of abortion sanction in halacha save to say that rabbinic opinions range from the ultra-restrictive view of Rabbi Moshe Feinstein (1895-1986) who saw abortion as a form of murder, allowing it only in the case of a direct and immediate threat to the life of the mother, to the more lenient perspective of Rabbi Eliezer Waldenberg, the Tsits Eliezer (1915-2006) who justifies abortion even in cases where the pregnancy is detrimental to the mother’s physical, mental or emotional health, if the pregnancy is a result of an extra-marital union or, in certain instances, if there is a substantial risk of deformity.  Note: as the late Rabbi David Feldman has well observed, whenever halacha mandates or permits abortion, it does so solely from a pro-life, not a pro-choice perspective.  Feticide for purely economic or utilitarian reasons are never permitted in halacha.

The above principle animates. I believe, the divergent responses from the principal Orthodox rabbinic roof bodies in the USA albeit that they are viewing the new legislation from somewhat different angles.

Before I detail the representative responses of Aguda on the one hand and the Orthodox Union (OU) on the other: while an examination of all relevant textual sources is way beyond the scope of this essay, I do wish to highlight two principal Scriptural  texts which will perhaps shed light on the basis of the Torah view on abortion as well as the respective positions of OU and Aguda.

The first source is found in Sefer Bereshit – Genesis 9:6.  Shofech dam ha-adam, ba-adam damo yishafeich.  The primary translation is  Whoever sheds the blood of a human, by a human shall his blood be shed.  However, without the benefit of our masora, our oral tradition which embraces also the ta’amei ha-mikra, the cantillation-notes, the verse could more literally be read: Whoever sheds the blood of a human within a human, his blood shall be shed. This is the source of the assertion in the Talmud (Sanhedrin 57b) that a Noachide (who is not bound by our masora or ta’amei hamikra) is subject to capital punishment for feticide (aborting an unborn child). And lest we think that Am Yisrael are not impacted by this verse, the Talmud goes on to say (59a) that there is nothing that is prohibited for a Noachide and permitted for Am Yisrael.

Are Jews then subject to capital punishment at the hands of a Sanhedrin for feticide?  The answer is no – as per our second source, from Sefer Shemot,  Exodus 21:22,  found in Parshat Mishpatim within a principal section of Mosaic civil and criminal law. The verse discusses a scenario where two men are fighting and collide with a pregnant woman causing her to miscarry. The penalty is not a capital one but a monetary fine. This is because an unborn child is regarded in Judaism not as a full life but as a potential one.

Does that mean that Jews are to treat abortion lightly? Most certainly not – as we have already seen, courtesy of our first source.

In the light of this background, let us examine the rabbinic responses of the OU and Aguda and appreciate whence they emanate.

The Agudah – echoed more or less by the Coalition for Jewish Values (CJV) – called the Supreme Court decision a “historic development”,  It continued: We are informed by the teaching of Jewish law that fetal life is entitled to significant protection with termination of pregnancy authorised only under extraordinary circumstances  ….Society, through its laws, should promote a sacred ethic that affirms the supreme value of life … Allowing abortion on demand, in contrast, promotes a social ethic that devalues life  … We pray that today’s ruling will inspire all American to appreciate the moral magnitude of the abortion issue and to embrace a culture that celebrates life.

 By contrast, the OU reiterated its position that it could “neither mourn nor celebrate” the Supreme Court’s reversal. It went on: [W]e cannot support an absolute ban on abortion at any time during the pregnancy for lifesaving situations, nor support legislation that doesn’t limit abortion to situations where carrying a pregnancy to term would risk the life of the mother …[or] endangers the physical or mental health of the mother [in which case] an abortion may be authorised, if not mandated, by halacha and should be available to all women irrespective of their economic status …. Legislation …that absolutely ban[s] abortion would ….limit our ability to live our lives in accordance with the responsibility to preserve life.  The extreme polarisation around the abortion issue does not bode well for a much-needed nuanced result. Human life – the value of everyone created within the Divine image – is far too important.  Significantly, it also stated: The ‘right to choose’ (as well as the ‘right to die’) [is] … completely at odds with our religious and halachic values.   

Revealingly, the Rabbinical Alliance of America (RAA) made a statement synthesising these two angles  [W]e applaud all efforts at restoring morality to a society that is on the edge, and which enshrines immoral activities as social justice and democratic rights. However, this decision, which now returns the matter to the individual states, might conflict with our halachically-based views in this matter.  This succinct statement helps us pinpoint the nub of the difference between the two approaches.

Basically, the Agudah proceeds from an ideological standpoint whereas the OU is speaking from a pragmatic standpoint.

Ideologically, the ruling is celebrated because it restores the paramountcy of consideration for the life of the unborn baby and for life in general.

Pragmatically, the ruling is greeted with some concern inasmuch as a total or near-total ban on abortion threatens to undermine a paramount consideration for the life and health of the mother.

The Agudah statement addresses society as a whole, urging it to adopt the Noachic position on abortion, whereas the OU statement is made more on behalf of its Jewish constituency, members of which, in US states which may now severely restrict therapeutic abortion in accordance with the Catholic/Evangelical position, could find themselves unable to procure a termination in accordance with Jewish teaching.

What both statements clearly have in common, despite their differing angles, is: they both emphasise that where abortion or feticide is concerned “pro-choice” is not an authentic Jewish perspective. This is a necessary pronouncement in the face of the mischievous misrepresentation of the Torah position by non-Orthodox and pseudo-Orthodox Jewish groups.  Haneshama lach ve-ha-guf she-lach … The body, as well as the soul, is Yours (Penitential Selichot).

 Choosing life’s embrace, rather than embracing the right to choose, is the supreme Jewish value.

About the Author
Rabbi Chaim Ingram is the author of five books on Judaism. He is a senior tutor for the Sydney Beth Din and the non-resident rabbi of the Adelaide Hebrew Congregation
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