Jonathan Muskat

Should Torah-Observant Jews Publicly Weigh in on Roe vs. Wade?

With the recent leak of a draft majority opinion indicating that the U.S. Supreme Court will soon overturn Roe v. Wade, there has been a lot of discussion in the media about what this means for abortion rights in the Unites States.  And I wonder, should we care?  Should Jews who are committed to Torah values care about abortion laws in the United States?  Do we have a responsibility to weigh in on these and other issues where we feel that Torah values are in conflict with Western values? Do we have a responsibility to educate non-Jews about Torah values?

On a technical halachic level, it seems that we have no such responsibility.  After all, the Torah’s commandment of tochachah, of rebuking a sinner, only applies if the object of your rebuke is a Jew.  Therefore, for example, even if we see a non-Jew having an abortion that violates a Noahide law, the mainstream halachic view seems to be that there is no technical obligation to stop her.

That being said, I think that there are two reasons why we may want to weigh in on these issues.  First, the Nimukei Yosef (Yevamot 21b) writes that even if the masses will not listen to your rebuke, you must still rebuke them once to clarify to everyone where you stand on the issue, even if you will not be able to persuade others to listen to you.  The philosophy underlying this ruling is that sometimes it’s important to reiterate and clarify the Torah’s values for yourself, and perhaps for your own community. It is very difficult for many of us, and especially our youth, to understand and appreciate certain Torah values that run counter to prevailing western values.  Therefore, we often need to weigh in on these issues, not to preach to the broader society, but to reiterate these values to our own community.

Perhaps we have an additional responsibility to weigh in on these issues for the benefit of our broader society. Indeed, God’s mission to Avraham Avinu in Parshat Lech Lecha was that all the families of the world will be blessed through him.  How will they be blessed through him?  In Parshat Vayera, God said that He knows that Avraham will instruct his children who will observe the way of God to perform righteousness and justice.  In Haamek Davar, the Netziv (Breishit 18:18) explained God’s message that Avraham’s descendants will guide other nations about how to behave and they will be the moral arbiters for society.  In fact, this mission that God issued to Avraham is repeated by Moshe to Bnei Yisrael in Parshat Va’etchanan (4:5-8).

And we have dutifully fulfilled this mission for thousands of years. Paul Johnson, a popular Christian historian who has written a well-known book on the history of the Jews, wrote in the epilogue of the book: “One way of summing up four thousand years of Jewish history is to ask ourselves what would have happened to the human race if Abraham had not been a man of great sagacity, or if he stayed in Ur and kept his higher notions to himself, and no specific Jewish people had come into being. Certainly, the world without the Jews would have been a radically different place. Humanity might have eventually stumbled upon all the Jewish insights.  But we cannot be sure. All the great conceptual discoveries of the intellect seem obvious and inescapable once they are revealed, but it requires a special genius to formulate them for the first time. The Jews had this gift.  To them, we owe the idea of equality before the law, both divine and human; of the sanctity of life and the dignity of the human person; of the individual conscience and so of personal redemption; of the collective conscience and so of social responsibility; of peace as an abstract ideal and love as the foundation of justice, and many other items that constitute the basic moral furniture of the human mind. Without the Jews, the world might have been a much emptier place.”

Now the question, perhaps, is how should we influence the rest of the world.  In Parshat Va’etchanan, the formula for impacting the world is through observing the mitzvot in Eretz Yisrael and other nations hearing about us and saying, “rak am chacham v’navon hagoi hagadol hazeh,” or “surely that great nation is a wise and discerning people.”  In short, we can influence the world by being role models without necessarily engaging in outside society.  However, there is another way to influence the broader society, through engagement with the outside world and spreading the wisdom of Torah and Torah values for their benefit.  Indeed, Rabbi Jonathan Sacks, zt”l, spoke about this mission in an address at an OU West Coast Convention over twenty years ago when he charged that “Jewish history is a journey through three destinations:  the destination of Jewish land, the destination of Jewish children, and the destination of changing the world.”

Some of us may have a natural tendency to only wish to weigh in on issues where we see harm being done to others, like immigration or gun control (in either direction, depending on your point of view), but we may say that it shouldn’t be our place to tell other Americans where to draw the line on abortion rights.  My response is twofold.  First, if we believe that abortion is murder and you are harming another life, then we are advocating a position to protect others from harm.  While not all believe this, there are some poskim who espouse this view.  Second, even if we conclude that abortion is not equivalent to murder, we may say that ethically it is still not an absolute right of the mother to decide to abort under any and all circumstances.  In that case, if we believe that our responsibility as Torah Jews is to share Torah values with the rest of society, both those halachot that apply to non-Jews and those values that emanate from halacha, then there should be no difference whether those values are aimed at preventing harm or limiting one’s personal rights, because we believe that in both instances, those values are Divine and are cornerstones of an ideal society.

However, should we as a faith community bring religion into American values? Should we be concerned that once we do so, other religions may want to sway American values in ways that are to our detriment as Jews and may ultimately infringe on our religious practices, for example, by banning circumcision, shechita or by not allowing us to have an abortion when we may do so, or are required to do so, from a halachic perspective?

Personally, I am not so persuaded by this argument.   Many political leaders claim to be inspired by religious beliefs, whether they are discussing abortion, euthanasia or the death penalty just as many political leaders claim to be inspired by their ethical beliefs in these areas.  Additionally, many religious beliefs can be articulated in perfectly neutral rational terms.  As an example, Rabbi Sacks was someone who was an expert at using religion to craft arguments for universal values to shape the world and I do not believe that in doing so he endangered Jewish ritual practice in this regard. For example, if I want to argue that abortion should not be allowed and/or funded by the government absent extenuating circumstances and this position is inspired by my religious beliefs, I can craft the argument in perfectly neutral rational terms.  I can argue that the embryo has rights, I can argue for the value of human potential and I can certainly argue that the government should not have to pay for this procedure because it’s an issue relating to allocation of resources.  Similarly, I can argue that it is wrong to prohibit all abortion under any circumstances, as that position is in conflict with my halachic understanding, and I could also make that argument on moral, humanistic grounds so it is not perceived in the public square as an attempt at religious coercion.

Furthermore, those who may wish to ban circumcision, shechita and halachically sanctioned abortion are not necessarily motivated by religious beliefs; rather, they believe that these practices harm others (children, animals and unborn children, as the case may be) and a completely secular society likely will make that argument regardless of whether we try to use Torah values to influence society.

However, it is at this point that religion ends and politics begins.  This means that the most we can say from a purely religious standpoint is that there are broadly two positions on how to balance the responsibility to maintain a pregnancy and the allowance to terminate a pregnancy.  One position is that abortion is feticide and tantamount to murder and therefore we may only support abortion to save a mother’s life, and another position is that abortion is not murder but a woman generally is prohibited from having an abortion either because she is destroying potential life or because she is unnecessarily wounding herself.  An ideal society would not permit abortion on demand and it would prohibit abortion except in a situation where the pregnancy seriously compromises the physical or mental health of the mother consistent with halachic values.

But then there are a whole host of questions that we must address before coming to a definitive conclusion. What will happen if Roe v. Wade is overturned?  Will state laws provide exceptions in situations akin to where halacha would permit or require abortion?  If Roe v. Wade is overturned, how many unsafe abortions will there likely be and how many potential lives will be saved because mothers will maintain a pregnancy?  Will more extreme anti-abortion laws be passed if Roe v. Wade is overturned versus if it remains in place?  If Roe v. Wade is overturned, will this lead to greater polarization in this country or will it lead to dialogue and the eventual adoption of a more European model, where abortion is legal in most countries but sometimes at the mother’s expense, sometimes only after receiving sign-off from multiple doctors and sometimes only after certain waiting periods?  It is very difficult for me to argue that halacha has a definitive view on these particular questions.

In sum, I would argue that we should promote our values on contemporary issues like abortion and try to frame the national conversation to the best of our ability.  We should promote the perspective that it’s not an issue of pro-life versus pro-choice. Rather, the starting point of the national conversation should be that we should not terminate a pregnancy absent a serious need.  I do not believe that attempting to do this will lead to more restrictions against our religious practice than not attempting to do so if the argument is crafted in religiously neutral terms.  However, once we frame the conversation in this manner, we must recognize that the Torah does not provide clear guidance on how to move forward from here and I can see legitimate positions on both sides depending on one’s political philosophy.

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