This past week, the Ohio statehouse passed the Fetal Heartbeat Bill. If it goes into law, it would be the most restrictive law of its kind in the nation and would outlaw all abortions after the detection of a fetal heartbeat at around six weeks. Abortion would only be allowed if the mother’s life was in danger and there are no exceptions for rape, incest, or religious reasons of any kind. Though it was vetoed by Governor Kasich, it is unclear whether the state legislators will attempt an override, and in the meantime, a ban on abortions after twenty weeks was signed by the governor. For the first time in its history, the Jewish Federation of Cleveland has spoken out publicly on the issue to state its opposition. Even Agudat Yisrael came out against the law, as has been their consistent policy on similar abortion restrictions.
It is important to note that halacha does not believe in a basic right to abortion, but it nevertheless allows for a more flexible approach than what exists in the proposed legislation. Halacha forbids the killing of a fetus for no reason, and we are even commanded to desecrate Shabbat in order to save its life. However, as long as the fetus is in its mother’s womb, it does not have the legal status of a human being. Though the Christian moral tradition may believe that human life begins at conception, there is no question that this is not the position of halacha.
I also want to state that this is a deeply personal issue for me. As I wrote about in my post from last week, my wife experienced serious complications during her last pregnancy. We found ourselves in a horrific and painful situation that we never, ever had imagined we would have to face. For the first time, we had to confront the question of abortion not as an abstraction but as a concrete reality. It is a terrible issue to face, one without easy answers. Ohio’s existing laws are already some of the most stringent in the nation which put pressure on us to make decisions we were not yet ready to make. While in the end we did not have to make a choice, many other parents are not afforded that opportunity.
This forum is not the place to exhaustively examine this issue, but I wanted to take the opportunity to make three points.
First, while there are rabbis who have been strict regarding abortion including Rabbi Moshe Feinstein z”l, there have also been many great modern halachic authorities, particularly in Israel, who have ruled that abortion may be a legitimate option in order to prevent great mental distress and anguish to the mother. This is especially true in cases where there is a possibility that the child might be born with severe disabilities or medical issues. Basing himself on halachic authorities such as Rabbi Shaul Yisraeli z”l and Rabbi Eliezer Waldenberg z”l, Rabbi Eliezer Melamed, a noted posek in Israel, recently wrote the following:
Over the last year I have re-examined this profound issue, and out of my studies, my belief that the lenient opinion is the primary one has been reinforced. This is because from the issue in the Gemara, the words of the Rishonim and Achronim, it arises that the prohibition of abortion is because of hashchata, and not murder. Indeed, many poskim of the last generation inclined to be stringent; the minority because they believed that abortion is forbidden as murder, and the majority because of the great value of life inherent in the fetus. Some poskim instructed in this manner because they did not rely on the opinion of doctors.
And even though the issue is very severe and seemingly it would be appropriate to take into consideration the opinion of the stringent poskim, nevertheless, in this instance it is proper to be lenient, because being stringent in such issues can cause terrible suffering to the parents and those born, and sometimes the suffering leads to the break-up of the family. Therefore, in an extremely pressing situation, such as when the fetus suffers from Tay-Sachs or other severe defects, or the fetus is known to be a mamzer, or continuing the pregnancy could cause blindness or deafness to the mother – one can rely on the lenient opinion of the poskim, for their opinion is substantiated to greater degree. This was the inclination of my rabbis, Roshei Yeshivot (heads) of the Mercaz Harav Yeshiva. However, in any such serious question, one must get the opinion of an honest doctor who relates reverently to the life of the fetus, and then ask a rabbi who is familiar with the field.
(Arutz Sheva, Halakha on Abortion of Fetuses with Severe Abnormalities)
Second, while there are halachic authorities who only permit abortion under very limited circumstances, even they would agree that there is significant latitude during the first forty days following conception. The new Ohio law bans abortions at about six weeks. However, since pregnancies are retroactively dated from the start of the mother’s last period, the fetus would in actuality be less than four weeks old and still within the forty day period. Thus the proposed law could prevent abortions deemed permissible even by the strictest opinions in halacha.
Third, in the American culture wars around the issue of abortion, those who stand in opposition describe themselves as pro-life. Halacha, however, presents a far more complex perspective. Many couples may choose not to get a pregnant if they feel that they will have no options in situations where they may be serious medical complications for the child. This idea is captured in the words of Rabbi Shlomo Aviner who also ruled leniently regarding the issue of abortion:
The reality is that many women, who are not young, refrain from becoming pregnant, even though they very much desire to do so, because they fear of giving birth to a baby with disabilities, and they are despondent with a broken heart. When an halachic authority permits, and even recommends them to have prenatal tests, and also promises them that in the case of a problem, God forbid, he will stand beside them in finding an halachic solution taking into consideration the results on the family, this will diminish the weight on their heart, and they will give birth to more children who will fill their lives with joy and happiness, and will add to the world more servants of God and will lead to increasing the sanctification of God’s great name.
(Shu”t Sheilat Shlomo 2:312)
From the narratives of Bereshit, it is easy to see that pregnancy is fraught with uncertainty and even danger. Most of the matriarchs struggle with infertility. When Yakov is confronted by Rachel’s desire to have a child, he tells her, “HaTachat Elokim Anochi, Am I in place of God?” (Bereshit 30:2). Though perhaps lacking empathy for his wife’s suffering, Yakov, nonetheless, acknowledges that pregnancy and childbirth are acts of life and death that are ultimately in the hands of God. This becomes eminently clear when Rachel herself dies in the midst of childbirth. Taking all this into consideration, the issue of abortion must be approached with the utmost humility. However, using the political process to impose one’s view of morality on to others is something that both secular and religious citizens should be extremely wary of. The Jewish people are blessed that halacha offers a spiritual and moral language that can address the most difficult ethical issues of our time with both sophistication and nuance. We must not abandon our responsibility to do just that.
For Further Reading on Abortion in Halacha:
- The best comprehensive summary on the Jewish tradition’s attitudes towards abortion along with a historical overview of the Christian moral tradition can be found in Birth Control in Jewish Law by Rabbi David Feldman.
- A summary of the strict approach to abortion can be found in Jewish Bioethics edited by Fred Rosner in the articles by Rabbis J. David Bleich and Immanuel Jakobovits
- For additional explanation of the lenient approach see Tehumin, Volume 25 “Hapalat Ubar She’Uvchanah Etzlo Machalah Kashah” by Rabbi Moshe Tzuriel. A short English summary can be found on Torah Musings, “Abortions that are Kosher“.