Jonathan Muskat

Is the Torah Pro-Choice or Pro-Life?

With the recent nomination of Brett Kavanaugh to the Supreme Court, there has been a lot of discussion in the media about whether Roe v. Wade will be overturned or chipped away in the future.  In this context, conservative political commentator Ben Shapiro tweeted that “every major Jewish halakhist of the modern era has banned abortion except when the life of the mother is threatened.”  In response, Rabbi Avraham Bronstein, Rabbi of the Hampton Synagogue, penned an op-ed for Haaretz, where he wrote that “the actual mechanics of a woman making an intensely personal, fraught decision with the support and guidance of her family, doctor, and rabbinic mentor is closer to what the “pro-choice” community has long described as the ideal context for legal abortion.” Ben Shapiro then penned an article clarifying his position in Daily Wire re-asserting that Judaism is pro-life and then another Rabbi, Elli Fischer, penned an article in the Forward presenting a more complex view of the topic, followed by a response to Rabbi Fisher by Chaim Finson.

Is the Torah, indeed, pro-life or pro-choice?  As human beings who grapple with modern issues all the time and try to understand what the Torah’s perspective is on those issues, it is only natural that our own biases will often slant us in certain directions regarding how we read Torah sources.  It is not surprising that those of us who are pro-life tend to emphasize the similarities of the pro-life position with the Torah’s position, while those of us who are pro-choice highlight the similarities of the pro-choice position with the Torah’s position.  Therefore, it is not unremarkable that you will find articles by orthodox Rabbis and halachic scholars that may take different sides on this issue.

It seems to me that in order to answer whether the Torah is pro-life or pro-choice, we need to define terms.  What does the pro-life position believe and what does the pro-choice position believe? The pro-life position essentially believes that abortion is wrong and that the law should not allow it. Ideologically, people who are pro-life believe that all humans, including the unborn, have a right to life. In a seminal article on the halachic perspective on abortion, Rav Aharon Lichtenstein set forth four different approaches as to the scope of the prohibition: (1) homicide, (2) ancillary to homicide, (3) intentional injury to the mother and (4) the obligation to preserve life of the unborn.  Each of these approaches, other than the third, is consistent with the pro-life approach of abortion insofar as it stands for the underlining principle that the unborn has a right to live.

However, where the Torah position and the pro-life position may part ways, is the question from what point, and under what circumstances the unborn has a right to live.  In these regards, the Torah position is not absolutist. In fact, there is some dispute over whether the unborn life must be protected immediately from the time of conception, or from some later period like the 40-day mark, a time period, which, according to the Gemara, has certain halachic considerations.  Additionally, the Torah position considers extenuating circumstances under which a woman is allowed to have an abortion.  According to some, this is the case not only when the life of the mother is at stake, but even when there is no risk of life to the mother but there are other health concerns.  These can be physical or mental, or possibly even when the child will be born with certain disabilities (spiritual – like mamzerut, or physical – like Tay Sachs).

Nonetheless, despite these differences, the underlying principle in both halacha (according to three of the four approaches outlined above) and the pro-life position is the belief that the unborn has a right to live.  Please note that according to halacha, abortion is generally forbidden to both Jewish and non-Jewish mothers.

Consistent with this approach, the Torah rejects assertion of those in the pro-choice community who assert that a woman has a fundamental right to make choices about her own body. In fact, the Torah asserts that even when there is no unborn child to discuss, wounding yourself unnecessarily is forbidden for both men and women.  The Torah clearly asserts the notion that we do not have control over our bodies to do what we want with them.

That being said, if one is pro-choice because one believes that abortion is wrong but without access to legal abortions, women will be forced to obtain illegal, unsafe abortions which can pose a significant health risk to the mother, then perhaps we can make an argument that the philosophy underlying this position may be consistent with a halachic view of abortion that allows for abortion under extenuating circumstances.  We would argue that both halacha and the pro-choice positions would assert that abortion is wrong but we cannot forbid it when there is a concern with the health of the mother, whether the mother is Jewish or non-Jewish.  This position would assume that the leniencies that would be afforded to a Jewish mother to abort under extenuating circumstances would also allow be afforded to a non-Jewish mother, as well, a position asserted by Rav Eliezer Melamed.

Please note that even according to this rationale of the pro-choice community, the Torah position and the pro-choice position part ways regarding how to balance the safety of the mother and protect the life of the unborn child.  Indeed, according to halacha, we only permit abortion in specific cases which are extenuating circumstances, as opposed to the pro-choice community which wishes to legalize abortion in all cases because of many extenuating circumstances.  We need not conclude that according to halacha, we must legalize abortion so that women who decide to reject halacha and have an abortion can do so safely.  Rather, we should try to set up a system that prevents unwanted pregnancies and provides adequate support for women who get pregnant.  How we accomplish this in practice, i.e., assert the halachic stance that abortion is wrong absent extenuating circumstances, that no human being has a fundamental right what to do with his or her body and that we must try to protect women from engaging in behavior that may endanger her life, is very difficult, indeed.

Perhaps we can also argue that the pro-choice position, while not necessarily being the position with which halacha can agree for the reasons stated above, is the only position in which I am free to follow halacha according to my belief system, whereas the pro-life position may not allow abortions when they are halachically permitted.  In this regard, in making a decision about abortions, I can always observe halacha if I am pro-choice, but I cannot always observe halacha if I am pro-life.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.