After the U.S. Supreme Court overturned Roe v. Wade, and ever since the draft of the decision was leaked in February, our team has been discussing the issue of abortion, how Jewish tradition approaches this complex and difficult topic and how we would cover this in The Weekly.
At OpenDor Media/Unpacked, we are not a homogenous group and represent different perspectives on this issue. We recognize that learning how to disagree with each other is not just a luxury. For this generation and for all of us, disagreement for the sake of Heaven is necessary.
It has been equally meaningful to see that in the course of our different conversations, we’ve also learned that there are key principles and ideas in halacha (Jewish law) that we’ve explored together that allow us to agree on so much. This too is important.
We wanted to share the following reflection from our team about what we agree on and how Jewish law and thought guides our thinking despite our different perspectives.
There are two general schools of thought in Jewish law on the issue of abortion. Rabbi Jeremy Weider of Yeshiva University explains on the podcast, “Orthodox Conundrum: Challenges in Modern Orthodoxy” that if we were to label the two camps in very broad strokes, they might be called the “Fetus is a life” camp and the “Fetus is not a life” camp.
These fundamentally different views of the status of a fetus and when life begins lead to different halachic decisions on the scope of when abortion is permitted.
We’ll dive a little deeper into each approach, and then we’ll explore how a great posek (Jewish legal expert) would approach this issue in order to best guide a mother or family who is faced with this extremely difficult situation, and the qualities any posek ought to have.
We wanted to explore all of this because we think these are precisely the conversations that we need to be having with our students, with our friends, with our colleagues, and in our communities.
While it is well beyond cliche at this point in the conversation to say that the issue of abortion in Judaism is complex and nuanced, we think now is the time to ask everyone to engage in a spirited, respectful debate because the ability to do so — precisely when we feel that emotions are running high — is vital for a flourishing and healthy world.
Does Judaism allow abortion?
So, let’s dive in. Isn’t Judaism either pro-choice or pro-life? While it might provide some comfort to live in a black and white world, as we have written before, Judaism offers us frameworks, guidelines and principles for thinking about current issues that are not colored in red and blue or black and white.
In secular society we are asked to choose whether we are “pro-life” or “pro-choice,” yet Jewish tradition is far more nuanced and does not fit neatly into those categories.
In his newsletter, Adam Grant reminds us that “Strong convictions trap us in what psychologists call binary bias. We reduce a complex spectrum into two oversimplified categories. People are either good or evil. Beliefs are either right or wrong. That’s what we’re seeing right now on abortion. Liberals lambasting conservatives for breaching precedent to oppress women. Conservatives crucifying liberals for flouting the Constitution to kill babies.”
Judaism teaches an alternative way to think about this issue that acknowledges the shades of gray. Let’s explore what this means and the two general approaches to this issue in Jewish law.
According to one general school of thought, life begins before birth at some point and the fetus (from 40 days of conception onward) could be considered a life. According to another general school of thought, life begins when the child is born and the fetus is considered fundamentally part of the mother, and is not considered a life.
In Judaism, the protection of human life is sacrosanct, overriding virtually everything else. Even for those who believe that the fetus is not a human life, it is considered a potential human life, and therefore Jewish tradition takes abortion very seriously.
According to both schools of thought, abortion should not be used as a casual form of birth control. There is no school of thought in Judaism that an abortion can merely be used as a form of ex-post facto birth control, that abortions could be done willy nilly.
(Editor’s note: To be clear, we don’t think women take the decision to end a pregnancy lightly or that anyone in this position would make this decision casually.)
Given Judaism’s great commitment to protecting life and potential life, many abortions are prohibited in Jewish law. The two schools of thought have different views of what the prohibition actually is. For those who say that life begins before birth and that the fetus is a life, then killing a fetus could be considered an act of murder (retzihah).
For those who say that life begins when the child is born and that the fetus is not a life, then killing a fetus is not considered an act of murder, but is considered wounding (chavala) of the pregnant woman.
This worldview also considers the fetus as being fundamentally part of its mother (in halachic terminology, the fetus is considered yerech imo, “a limb of its mother”). Those who consider abortion to be retzihah, on the other hand, view the fetus as a life and its own independent entity.
Protecting the mother’s life
Despite these different worldviews, there is one thing that halachic authorities unanimously agree on: the life of the mother takes precedence over the life of the fetus until the moment of birth. In fact, when the mother’s life is threatened, according to both schools of thought, halacha requires the woman to abort the fetus and save the life of the mother.
Both of these general approaches find mainstream backing in Jewish tradition and they may result in different legal decisions on the range of situations when abortion is permitted. For those who view a fetus as a life such that abortion is essentially equivalent to killing a life, then the only circumstance when abortion is permitted is pikuah nefesh, when the mother’s life is in danger.
For those who view a fetus as not a human life and that it is not retzihah, abortion is permitted in a much broader range of situations, which could include “when the mother faces health complications that do not threaten her life, when the fetus has significant medical defects, and in the event of rape or incest,” and in cases of teen pregnancy and single women, Rabbi Jeremy Wieder explains.
Jewish law also recognizes the mother’s mental health and psychological state in evaluating the threat the fetus or child poses to her, and rabbinic scholars have debated the degree of mental distress and anguish that must be present to justify terminating the pregnancy.
Navigating religious guidance on abortion
For individuals who look to religious guidance to help them make such a harrowing decision, how does one go about it? For a traditionally observant mother or family, who does one turn to?
Historically, when people have difficult religious questions, they turn to their imam or their priest, their reverend, their teacher or their rabbi. In Judaism, the rabbi who proffers a religious decision on this question is called a posek.
A good posek is someone who navigates the complexities and nuances of the halacha, as well as all of the particularities of each case, and guides the family in making a decision.
A posek must balance competing values. One is the life of the fetus and whether it is a life, and the other is the physical and mental health of the mother. The role of posek is to decide how to balance all these competing values in the mother and family’s unique situation.
How does this work? How does a great posek go about making a halachic decision, especially on an issue as consequential and deeply personal as this?
First, halachic decision making is not like solving an algebraic equation. Halacha is not an algorithm — it is not just “plug and play.” The job of a true rabbinic leader is not simply to adjudicate in a cold and detached way. It is to listen, understand and empathize and to include all of that into the posek’s complex picture of the situation that leads to an outcome.
A posek should be sufficiently learned and well-versed in the halacha of the specific issue at hand. If the issue is outside of the scope of the posek’s knowledge, the person should be humble enough to refer the individuals to a different posek who is knowledgeable about the issue.
According to the legal philosopher Ronald Dworkin, the job of any jurist is to interpret past decisions and thought on the issue and “continue that history into the future, through what he does on the day. He must interpret what has gone before because he has the responsibility to advance the enterprise in hand rather than strike out in some new direction of his own.”
“So he must determine, according to his own judgment, what the earlier decisions come to, what the point of the theme of the practice so far, taken as a whole, really is,” Dworkin added.
This principle from Dworkin is reminiscent of the Talmudic jurisprudence concept, which declares, “Ein lo la-dayyan ella mah she-einav ro’ot,” meaning that a rabbinic decisor needs to make decisions based on what he sees, and seeing requires both physical sight and personal, spiritual, and mental insight.
Rabbi Moshe Feinstein wrote, “Each posek must rule as he sees fit, after meticulous study and analysis of all the relevant texts and prior rulings, to the best of his ability, fully cognizant of the heavy responsibility he has assumed in applying Hashem’s Torah to the life of the Jew.”
At the same time, the reality is that each and every case is different.
Aaron Kirschenbaum, a professor of Jewish law at Tel Aviv University, wrote that “A posek should be someone of “consummate learning and acute analytical prowess….A man of piety [who is] totally committed to faith,” and he is also someone who may be faced with “the unknown and imponderable.”
A posek is someone who needs to look a mother and couple in the eyes, listen deeply to them and give them guidance that will have a profound, personal impact on their lives.
When a potential mother or family is faced with the question of whether to end a pregnancy, they are in a position of great vulnerability and likely grappling with one of the most difficult and painful moments in their life.
A posek should not state hard and fast rules or give a knee-jerk ruling, but should carefully consider the full complexity of each case with empathy and compassion before making a decision.
And, within rabbinic literature itself, though there are frameworks and principles and past decisions that can guide a posek, there are certainly a range of opinions as to exactly how much weight to attach to the different factors in the case in rendering a decision.
At the same time, Rabbi Michael Rosensweig warns that “Clearly pluralism is not a blank check. There are objective limits to a sincere interpretation of sources.”
So, where does Judaism stand with respect to abortion? The answer is that, as with most things in life, it isn’t quite that simple. Jewish tradition values the life and potential life of the fetus and it values the life and health of the potential mother.
In times of political turmoil, let us remember that our tradition is not defined by any political party, that we have the tools in Judaism to think this through, that we have thousands of years of history for how to debate (and how not to), and that when we choose rabbinic decision makers to help guide us through difficult decisions, we should look for Jewish leaders with religious acumen, thorough knowledge, and an ability to guide with empathy, compassion and understanding.
Let’s also remember that our tradition has wisdom to offer not only the Jewish community, but the greater world as well, and as Jewish educators and influencers, we can help share this wisdom with our communities and in the public sphere.
Rabbi Shlomo Brody wrote, “The nuanced Jewish perspective on abortion can appeal to a broad swath of Western society. One hopes that Jews will take advantage of this contentious moment to spread Jewish wisdom throughout the land.”
Originally Published Aug 3 2022 06:57AM EDT