The U.S. Supreme Court’s long-awaited decision on Friday morning to overturn Roe v. Wade, a landmark 1973 ruling on abortion rights, has rocked the nation. Among Americans, the news was met with either relief or shock depending on which side of the issue one stood. Orthodox Jewish institutions and individuals also expressed a range of opinions and views – though certainly less wide-ranging than the general public’s.
More than a month after a draft opinion on the case was leaked, the U.S. Supreme Court officially released its decision in the Dobbs v. Jackson Women’s Health Organization, overturning the longstanding Roe v. Wade ruling that guaranteed the right to an abortion at the federal level.
In a 6-3 ruling, Justice Samuel Alito wrote in his majority opinion that the 1973 Roe v. Wade decision was “egregiously wrong from the start,” as well as a 1992 decision in Planned Parenthood v. Casey that affirmed that right.
“We hold that Roe and Casey must be overruled,” wrote Alito. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Orthodox Jewish groups came out in full force regarding the decision.
Agudath Israel of America welcomed the ruling, calling it a “historic development” in a statement.
“Agudath Israel has long been on record as opposing Roe v. Wade’s legalization of abortion on demand,” the statement read. “Informed by the teaching of Jewish law that fetal life is entitled to significant protection – with termination of pregnancy authorized only under certain extraordinary circumstances – we are deeply troubled by the staggering number of pregnancies in the United States that end in abortion.”
The organization added that it does not “seek to impose our religious beliefs on the broader American society,” but stated that it believes “that society, through its laws, should promote a social ethic that affirms the supreme value of life. Allowing abortion on demand, in contrast, promotes a social ethic that devalues life.
“To be sure, there are certain extraordinary circumstances where our faith teaches that a woman should terminate her pregnancy. Agudath Israel fully supports her right to abortion in such situations, both as a matter of constitutional free exercise and moral principle. However, it must be reiterated that these cases are indeed extraordinary, rare exceptions to the rule that fetal life is entitled to protection.”
“We pray that today’s ruling will inspire all Americans to appreciate the moral magnitude of the abortion issue and to embrace a culture that celebrates life,” the statement concluded.
The Orthodox Union reiterated its position when the draft was leaked by saying that the organization does not “mourn or celebrate” – as it could not support an absolute ban on abortion at any time during the pregnancy for lifesaving situations nor support legislation that doesn’t limit abortion to situations where carrying a pregnancy to term would risk the life of the mother.
“As people of faith, we see life as a precious gift granted to us and maintained within us by [G-d]. Jewish law places paramount value on choosing life and mandates – not as a right but as a responsibility – safeguarding our own lives and the lives of others by behaving in a healthy and secure manner, doing everything in our power to save lives, and refraining from endangering others. This concern for even potential life extends to the unborn fetus and to the terminally ill,” the OU said in its news release. “The ‘right to choose’ (as well as the ‘right to die’) [is] thus completely at odds with our religious and halachic values. Legislation and court rulings that enshrine such rights concern us deeply on a societal level.”
Still, that same mandate also requires concern for the mother, the statement explained, which Jewish law prioritizes over that of a fetus, and when it “endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated by halacha and should be available to all women irrespective of their economic status.”
“Legislation and court rulings, federally or in any state, that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life,” wrote the OU. “The extreme polarization around and politicization of the abortion issue does not bode well for a much-needed nuanced result. Human life – the value of everyone created in the Divine Image – is far too important.”
The Coalition for Jewish Values (CJV) welcomed the ruling, stating that Judaism regards all life as sacred.
“Jewish law permits abortion only in truly extraordinary circumstances. This does not describe the situation in America today, where the overwhelming majority of abortions are done as an elective procedure,” CJV wrote in a news release. “The dialogue needs to change: If everything is a human right, then in the end, nothing remains worthy of special protection. We must return to a society that cherishes human rights and human life.”
Rabbi Yaakov Klass, Torah Editor of The Jewish Press, stated on behalf of the Rabbinical Alliance of America/Igud Horabbonim:
“[W]e applaud all efforts at restoring morality to a society that is on the edge, and which enshrines immoral activities as social justice and democratic rights. However, this decision, which now returns the matter to the individual states, might conflict with our halachically-based views in this matter. And therefore, there should be some caution. I remember a conversation I had with my late uncle, Rabbi Sholom Klass, zt”l, scholar, publisher and editor of The Jewish Press, who personally never wrote about this. He stated our difference with the Catholic Church, since on this matter we take into account rape, incest and dangers to the mother’s life. My uncle’s view was essentially that of hagaon Rabbi Moshe Feinstein, zt”l, as cited by his late son-in-law Rabbi Moshe D. Tendler, zt”l, in an interview in the Jewish Review, that we should not seek to involve ourselves in the public policy discussion.” [See last week’s Letters to the Editor – Ed.]
The Jewish Press invited individuals in the Jewish community to offer their reactions. These reflections proved to be more expansive.
“The abortion debate has seemingly brought out everyone who wants to find ‘proofs’ in Torah for their viewpoint instead of examining the unique nature of halacha,” said Rabbi Pesach Lattin of Phoenix, Arizona. “This is partially because we’ve been unfortunately influenced by outside political sources and the media.
“Abortion is not something to be celebrated in Yiddishkeit. It’s to be used as the last resort, to save a life or other extreme circumstances. Anyone who claims otherwise is being dishonest. The new-age “woke” rabbis who want to push this idea that Judaism is pro-abortion are purposely confusing the point.
“The idea that Judaism condones abortion or doesn’t believe in the sanctity of all life is insane – but it clearly doesn’t try to follow secular law. Pro-choice and pro-life don’t fit into our ideology as Yidden. They shouldn’t. Halacha exists in the nuances of life – every decision isn’t obvious. This includes the abortion debate.”
Likewise, Rabbi Gil Student, editor and founder of the popular website Torah Musings, said, “The overturning of Roe v. Wade opens an opportunity for this polarized country to join together and issue compromise legislation that balances respect for unborn life on the one hand with the role of personal conscience and choice on the other. The majority of the country would support a common-sense compromise but unfortunately politicians have not taken this middle ground approach.”
Rabbi Daniel Feldman, a rosh yeshiva at Yeshiva University, also turned his attention to a post-Roe world: “In advocating for post-Roe legal policy, the complex nuances of the halachic position must guide the discussion. It is inarguably true that Jewish law mandates abortion when the mother’s life is threatened, and this is the only path to save her. It is also true that, characteristic of the discourse of Talmudic scholars, there is a range of opinions as to what situations are practically included in that umbrella, and how broadly it can be interpreted; as well as how to characterize the prohibition of abortion, whether to see it as akin to murder, or as defined by another transgression, serious but not possessed of the same absolute character.
“It thus follows that Jewish law does differ in theory and to some important degree in practice from the Catholic and Evangelical approaches to the question, and it follows as well that reasonable religious people can disagree, strongly and widely, as to what legislative or political stances are most protective of Jewish values and precepts.
“But it also bears notice that Jewish values impact the framing of the rhetoric as well. My father, Rabbi Dr. David M. Feldman, z”l, whose writings on abortion were cited by the court in the original Roe decision, would emphasize that when Jewish law permits or mandates an abortion, it does so from a “pro-life” perspective. The political slogans are doubly misleading: the license is not derived from choice, nor is a pro-life attitude universally prohibitive of all abortions, if the result is harm to the life of the mother.”
Others were more forlorn on the matter.
“The overturning of Roe v. Wade means more women’s lives will be endangered, and more kids will be born into poverty and face abuse and neglect in their lifetimes,” said Tova Cohen of Englewood, N.J. “This is devastating news. In the same week, the same court that made that happen also effectively paved the way for more gun violence in this country. That’s tragic. Judaism values life and it’s very obvious that the majority of Supreme Court justices do not.”
Along similar despondent lines, Naphtali Hoffman of Coral Springs, Florida, said, “While I expected the ruling, I was appalled by it. It imposes a religious view of abortion on the nation as a whole. It is clear to me that abortion is not murder from a Torah perspective, and there are circumstances when it is even required by halacha – to save the mother. But even if that were not the case, I do not want to live in a theocracy. It cannot have escaped your notice that all six of the majority votes came from Catholics. The two Jews voted in the minority.”
Rabbi Benjamin Kelsen of Bergenfield, N.J. said, “The court’s ruling demonstrates a huge misunderstanding of Roe which was about acknowledging a Constitutional right to privacy which, in turn, means that a person has choice regarding medical/health issues. Many in our world mistakenly thought that Roe simply allowed for abortion on demand from fertilization until birth. That is simply untrue. The court in Roe held that states could limit abortion based on a trimester approach. In the follow-up case, Casey, the court changed to the viability approach. There were no states that allowed for simply terminating a pregnancy at will in the final weeks.
“Now, the court has ruled that there is no right to privacy in the Constitution. Justice Thomas explicitly wrote that the court should now go after other privacy issues, including the right for a couple to use contraception. The approach to this was not legal theory. It was religious ideology dressed up to look like a strict reading of the Constitution. It will not end well for us.”
A Harrowing Personal Experience
One Israeli, who asked to remain anonymous, recounted her own experience:
“I am truly sickened by the news coming from the U.S. I pray that there is still hope with individual states, but the fact that some states might prohibit women from going to another state to get an abortion is beyond the pale.
“For me, like many other women who keep their personal lives quiet but are now deeply worried for other women, the issue of overturning Roe hits close to home.
“A few years ago I discovered I was pregnant. The problem was I knew my marriage was ending. I desperately wanted a divorce. I was living in hell and was petrified….
“Eventually I spoke with an extremely knowledgeable rabbi, a known talmid chacham who is also a psychologist, for advice. I wanted to understand the halachic aspects of terminating the pregnancy, especially given my situation.
“He explained some of the halachic aspects, and emphasized that in the end [it was permissible to terminate the pregnancy.]”
“Ultimately, I chose to keep my baby and I never for a second regretted it. But my life was pretty secure: I was employed full time, I had an advanced academic degree, I was financially independent, and I had family support. I also felt it could have been my only chance to have a baby. Thank G-d, I gave birth to a healthy baby who is the light of my life.
“But for women who aren’t financially stable, for women who have been raped, for women who discover a major fetal abnormality and know they are not able to handle it, for women who are young or don’t have full family support, the consequences are dire.”
Where Are We Headed?
Rabbi Gidon Rothstein expressed concern for where the country is headed. “Dobbs is the first time the Supreme Court has removed a previously declared right,” he said. “It is a profoundly uncivil act, in that it imposes the view of one side on the other, exactly what upset many who oppose the right to an abortion when the ‘other side’ did it to them. The Founding Fathers feared the tyranny of the minority as well as the tyranny of the majority, and this might be both.
“War, cultural or military, is never a great option; it is sometimes necessary, but never ideal. People who object to abortion on moral grounds likely see Dobbs as a victory, where I see it as another shot fired in a war, another rend in the fabric of US civil society. A society that at one time was made up of people working to create the maximum room for all citizens to live according to their very different views of right and wrong. Sadly, the U.S. currently seems hell-bent on its descent into a grab-what-you-can society, taking as much as possible when in power and protesting loudly when the other side then does the same. I pray we all soon find our way to a better version of ourselves, where mutual respect allows us to build together, making room for ‘the other’s’ very different views, rather than a power struggle up and down the line.”
Taking a different approach, Rabbi Yaakov Menken, founding managing director of Coalition for Jewish Values, said, “It is true, as many note, that less government regulation means more liberty for us to do as we please. And in a situation where people advocate for no abortions ever, it is clear we would have to find common cause with the ‘pro-choice’ community in order to save lives.
“But that is not where we are today. Steven Aden, general counsel for Americans United for Life (AUL), told me there isn’t a national pro-life organization promoting legislation that fails to include an exception for the life of the mother. Even the Catholic Church, on a slide from a Catholic healthcare conference, declares “indirect abortion” – a procedure done to save the mother’s life, where the death of the fetus is foreseen but unavoidable – is permitted. Either we never understood Catholic belief, or their beliefs have tempered from where they were 50 years ago.
“The other side is this: the Jewish left is doing tremendous damage. They are claiming it’s a religious freedom issue. Just today, a Jewish conservative leader asked me, ‘Does your organization have a statement against abortion. My Christian friends are asking if it’s true that Judaism is pro-abortion.’ We need to articulate the Torah position.”
Rabbi Yona Reiss, Av Beis Din of the Chicago Rabbinical Council, emphasized the importance of religious freedom:
“I think that our main concern as Jews must be that we be able to practice our religion freely. There is no right to abortion in Jewish law, but there are cases, such as when a mother’s life is in danger, when an abortion is unfortunately necessary, and there are other cases, depending upon the stage of pregnancy and the medical or psychological issue in question, when a rabbinic authority might rule that an abortion is permissible.
“We would want to maintain our religious liberty to implement any such lenient rulings when applicable, and of course to adopt a stringent stand against abortion in cases when it is prohibited according to Jewish law, such as by declining to participate in a procedure that we believe is forbidden. I also believe that it is desirable from our perspective for non-Jews to take seriously the prohibition against abortion that exists for them as well according to Torah law, but that is true regardless of the Supreme Court decision.”