With the recent leak of US Supreme Court Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health — a case that questions the constitutionality of a 2018 Mississippi state law, which largely prohibits abortions after 15 weeks — the always-simmering issue of abortion has again been brought to the fore. And if the leaked document is representative of the Court’s final opinion, the landmark Roe v. Wade decision of 1973 is likely to be overturned, thereby eliminating federal protection of abortion rights. Instead, each state will legislate its own rules regarding when and if abortions may be performed. Indeed, 10 states still have abortion bans on the books that will become enforceable, should Roe v. Wade be overturned; another nine states have “trigger laws” banning abortion that become operable upon the repeal of Roe v. Wade. In other words, the discussion surrounding abortion is, now more than at any time in the past 49 years, a practical necessity.
Too often, Jewish people on either side of the debate offer facile and simplistic approaches that undermine the complexity of the halachic attitude towards abortion. A recent episode of Samantha Bee’s Full Frontal talk show featured Rabbi Danya Ruttenberg asserting, “In Judaism, abortion is permitted; and where the pregnant person’s life is at stake, it’s required.” On the other side of the aisle, Orthodox commentator Ben Shapiro quoted Professor Hymie Gordon of the Mayo Clinic as saying, “By all the criteria of modern molecular biology, life is present from the moment of conception,” in order to argue that the life of a human embryo is qualitatively human.
In contrast to approaches like these, the Jewish legal attitude toward abortion is complex, nuanced, and multivocal. Some modern halachic decisors, such as Rabbi Moshe Feinstein, offered very restrictive approaches based on the assumption that a fetus is akin to a human life; others, such as Rabbi Eliezer Waldenberg, are much more permissive, considering the fetus an extension of the mother, rather than a separate living being. These differing positions echo parallel opinions expressed by earlier authorities, who, in turn, use the basic texts of Jewish law, the Torah and the Talmud, to come to opposing conclusions.
It is important to note that even the more restrictive authorities acknowledge that where there is danger to the mother’s life, abortion is not only permitted, but mandated. (Naturally, the meaning of “danger to the mother’s life” can, in turn, be understood in more or less restrictive ways.) Moreover, those rabbis who generally prohibit abortion also acknowledge that there is reason to be more permissive during the first 40 days after conception, when the Talmud says that the fetus is not yet human in any way.
Likewise, those scholars who are lenient with regard to abortion never argue that abortion is permitted in all situations without qualification. While feticide may be a form of wounding the mother, rather than a type of murder, Jewish law prohibits causing bodily harm to oneself without serious cause. And because the fetus is a part of the mother that, uniquely, contains within it the potential to grow into an independent person, the standard for “serious cause” is greater than it would be in other cases of wounding.
For this reason, Yeshiva University’s Rabbi Jeremy Wieder said, on my Orthodox Conundrum podcast, that the term “pro-choice” is inappropriate for those who would halachically permit abortion in many cases, as even the most lenient scholars of halacha assert that abortion is much more serious than the word “choice” indicates. He also made the point that the weight of halachic opinion today appears to side with the more lenient Rabbi Waldenberg, than with Rabbi Feinstein. For this reason, Rabbi Wieder suggests that, even as he eschews the term “pro-choice,” religious Jews should be uneasy with possible repeal of Roe v. Wade. Because many states will outlaw abortion even in situations where most halachic authorities permit it, and because these authorities do not believe that abortion is a type of murder, the consequences of prohibiting abortion where it should be permitted are more dire than the ramifications of allowing it where it is halachically forbidden.
The Orthodox Union’s Statement on the Potential Overturning of Roe v. Wade may have been imperfect — in saying that we cannot celebrate either side of the debate, it ends up saying effectively nothing — but it at least recognizes that the Jewish stance on abortion is deep and nuanced. If nothing else, it avoids the oversimplification that too often makes our Torah appear less than it is.
It is high time individuals, however well-intentioned, stop trying to squeeze Judaism into their respective preferred political platforms. Jewish law offers nuance and complexity and disagreement; nowhere is this more obvious than in the case of abortion and US law. We must allow the Torah to speak for itself, rather than forcing the Torah to agree with what we already believe.
When it comes to abortion, superficial halachic approaches are almost always incorrect.