June is when the U.S. Supreme Court announces its most important decisions and closes up shop until the first Monday in October. The most anticipated rulings this month relate to challenges to the use of excessive partisan gerrymandering to distort election outcomes, and whether the controversial citizenship question proposed for next year’s census should be allowed to remain there.
Most eyes, however, already are looking ahead to June 2020, when the High Court most likely will decide the fate of its 1973 decision in Roe v. Wade.
In anti-abortion quarters it was almost a given that the court, with its new conservative majority, would overturn the 46-year-old ruling that abortion is constitutional. A flood of severely restrictive abortion laws came pouring down this year, in anticipation of that outcome. In late May, however, the court shook up both sides of the abortion divide. While it upheld an Indiana law that required abortion providers to bury or cremate fetal remains, it avoided the main issue by refusing to consider whether to reinstate a law outlawing abortion based on such fetal characteristics as race, sex, or disability.
The most likely candidate to come before the court when its new term begins on October 7 is a new and severely restrictive Alabama law passed in mid-May. It seeks to skirt Roe v. Wade by targeting physicians rather than their pregnant patients. The law imposes prison terms of up to 99 years on physicians who perform an abortion, unless there is “a serious health risk” to the mother, or if the embryo “has a lethal anomaly” (defined in medical dictionaries as “a defect which is incompatible with life and leads to the natural death or euthanasia on humane grounds” of the fetus), or if the fetus has attached itself outside the uterus (known as an ectopic pregnancy). There are no other exemptions, not even for pregnancies resulting from rape or incest.
There also is the spate of so-called “heartbeat” laws that various states have passed, prohibiting abortions if a heartbeat can be detected in the fetus. Since this usually occurs around the sixth week of pregnancy, before most women know they are pregnant, this is an abortion ban in everything but name.
While Judaism does not encourage abortion, its opposition is on moral grounds, for the most part, not halachic ones (although, as will be seen, this is open to interpretation). It certainly does not support “abortion on demand,” in the broadest application of that term, but it favors the fewest governmental restrictions on the procedure’s availability. That is because such restrictions could clash with our “religious right” to allow an abortion in order to safeguard the health of the mother. Since most halachic authorities have a more liberal view of what that means (many include a woman’s mental health) than our government ever will have, that religious right is impeded by legislative initiatives such as those we have been seeing in recent months.
It is true that midrashic commentaries and rabbinic literature painted an idealized picture of the fetus (including having it studying Torah while in the womb), but they are commentaries and individual opinion; they are not law. Jewish law does not recognize the fetus as an actual human life until the moment it begins to emerge from its mother. Until that moment, halacha does not view the fetus as having an identity independent of its mother. “Gufa he,” it is her body until the baby’s head crowns, the Talmud declares (see the Babylonian Talmud tractate Arachin 7a). For that reason, as well, the Talmud in Arachin denies the father any right to decide the embryo’s fate. The Sages of Blessed Memory based these decisions on Exodus 21:22.
Their interpretation of that verse also allowed them to choose between the life of the mother and the life of the fetus when a pregnancy endangers the mother’s life. (See Mishnah Oholot 7:6.) This is in spite of the fact that the Talmud elsewhere states that the fetus “is fully fashioned on the 41st day” of pregnancy (see BT Nidah 30a) and despite ruling that “one life may not be taken to save another” (see BT Sanhedrin 72b). Maimonides codified the Oholot decision in his Mishnah Torah, the Laws of Murder 1:9, and the Shulchan Aruch included it in Choshen Mishpat 425:2. Until it begins to be born, the fetus is not a life, according to established Jewish law.
This would seem to suggest that Judaism, in fact, supports a woman’s right to choose. After all, “it is her body,” and the fetus, regardless of its stage of physical development, is not an independent life. And, indeed, the more liberal authorities agree, albeit with reservations on moral grounds. It is one thing to allow — and even encourage — a woman to have an abortion because her health, mental or physical, may be endangered by the fetus; it is quite another to look with dispassion on an abortion performed when no danger exists or, worse, is performed for frivolous reasons.
In one respect, though, Judaism does offer a backhanded support for “a woman’s right to choose” — if her health is at risk and she refuses to abort. In that case, a bet din theoretically can order her to have one. (Enforcing that is another matter.) It would be more accurate, therefore, to say that Judaism supports a woman’s right to have an abortion for reasons it considers valid, while recognizing that the decision on whether the reasons are valid must be the mother’s. The effect may be the same, but the position is not.
Some authorities, of course, insist abortion is proscribed by Torah law itself. Their reasoning, however, is convoluted. In context, Genesis 9:6 states, “Whoever sheds man’s blood, by man shall his blood be shed.” However, the Hebrew (shofech dahm ha’adahm ba’adahm) literally means “whoever sheds man’s blood within man.” Said Rabbi Yishma’el (BT Sanhedrin 57b): “What is a man within another man? An embryo in his mother’s womb.”
As noted immediately after this statement, however, the Hebrew also can mean “whosoever sheds man’s blood, within man shall his blood be shed,” thereby becoming, not a biblical command against abortion, but a mandate for a method of execution, for “how can man’s blood be shed and yet be retained within him? [Only] by strangulation,” by which hanging is meant.
What the rabbis holding such opinions cannot answer is why, if abortion is murder, it is nevertheless not classified as a capital crime either in Exodus 21:22 or any other Torah verse (none of which deal directly with abortion), or in the deliberations of the Sages, and, in fact, carries no punishment, as such.
Clearly, there is no easy answer to where Judaism stands on the abortion question, but we nevertheless have a stake in preserving Roe v. Wade and our voices need to be heard: Tampering with it in any substantive way infringes on our First Amendment right to freedom of religion.
Just like with freedom of speech or freedom of the press, tampering in any way with freedom of religion opens a door we should never have to go through.