Recent news reports indicate that the United States Supreme Court stands ready to repeal the 1973 Roe v. Wade decision that established a constitutional right for abortion, which leaves the status of abortion up to legislative decision by democratically elected representatives.
This is a good time to think carefully about Judaism’s attitude toward public policy about abortion. In doing so, I turned to Rabbi Dr. Immanuel Jakobovits, who was the founder of the modern subject of Jewish medical ethics. His groundbreaking 1959 book, Jewish Medical Ethics, set the stage for a flourishing academic field incorporating Jewish law, contemporary medicine, and ethics. His views on abortion, particularly regarding public policy, carry great weight. As chief rabbi of Great Britain from 1967 to 1991, he incorporated the views of the leading halachic decisors throughout the generations into his formulations of Jewish medical ethics.
Rabbi Jakobovits wrote extensively about abortion in Jewish Medical Ethics, primarily in determining the permissibility or otherwise of various procedures. In an article, “Jewish Views on Abortion” – which he published as a chapter in a 1967 book on abortion law, republished in a similar 1973 legal book and finally in a 1977 collection of his writings (The Timely and the Timeless: Jews, Judaism and Society in a Storm-tossed Decade) – the chief rabbi addressed public policy aspects of the then widely-discussed liberalization of abortion laws.
Rabbi Jakobovits points out that while, as he sees it, abortion is not technically considered murder in Judaism, it constitutes the destruction “of a germinating human life” and remains forbidden except in exigent circumstances. In a postscript to the article, Rabbi Jakobovits notes the existence of outlying rabbinic views that permit abortion in cases of medical need even absent danger to the mother’s life but points out that such opinions also emphasize the importance of the first 40 days of pregnancy for such procedures. There is broad consensus among contemporary authorities that Judaism forbids abortion as a form of birth control or even to prevent the birth of a physically or mentally deformed child.
In terms of public policy, Rabbi Jakobovits discusses a number of important considerations. No law can address every situation. Some people will be adversely affected by any law. He might have applied this to Obamacare, which provides healthcare to many people who previously lacked it but also forces many people to decrease or even entirely lose their healthcare coverage. If we were to look only at isolated cases and not the overall impact, we would reject any proposed law.
Rabbi Jakobovits could have quoted Rambam (Moreh Nevuchim 3:34), who says that the Torah’s laws are intended to benefit the majority of people. What leads most people to happiness might create distress for others. Rav Yosef Kafach, in his notes to this passage, offers the example of someone traveling in a wagon on a dirt road during a drought. To most people, rain would be a blessing that satiates thirst and feeds the crops. But to that person traveling on the road, the rain will cause his wheels to get stuck in the mud. In life, some people are road travelers who get stuck in the rules and customs that enhance the lives of the vast majority of people. This is not due to a lack in the Torah but to the nature of laws. Even the best law will have a negative effect on some people.
If we wish to have moral standards in society that are reflected in law, then we will be forced to inconvenience and even deprive some people. As one of many possible examples, we limit the sale of medication to those with prescriptions, even when obtaining those prescriptions can involve delays and costs. Some people may never qualify for those medications due to technicalities or lack of insurance. Sometimes there is no local doctor who can prescribe the medication. The suffering should be acknowledged and incorporated into the deliberations over the appropriateness of these laws. However, the existence of suffering does not automatically disqualify the law. Rather, we must ensure that a law generally prevents suffering and only rarely causes it.
When it comes to abortion, too often people fail to consider the lives that would have been. Many (most?) of those children would have been born to one or more parents unprepared for them. However, after adjusting to a new reality, how many of those children would have grown into happy, healthy adults? How many unwanted children become their parents’ delight, even under difficult circumstances? Rabbi Jakobovits says, “Some children may be born unwanted, but there are few unwanted children aged five or ten years.”
When you look at the statistics, how many abortions are performed for the health of the mother or child and how many are performed on fetuses that would otherwise grow into healthy children? He argues that the vast majority of abortions – hundreds of thousands, if not more, per year – lack any moral justification. Saving one of those lives should be a high priority. Saving hundreds of thousands of those lives should be the highest priority.
While Rabbi Jakobovits does not quote this halacha in what is primarily a public policy article, it should be noted that the imperative of piku’ach nefesh (priority of preserving human life) applies even to an unborn child. Rabbi Simcha Bentzion Rabinowitz, a contemporary compiler of halachic decisions, writes (Piskei Teshuvos 330:9): “And so is the practical ruling, that we violate Shabbos to save the life of a fetus even in a pregnancy less than forty days, and even without any danger to the mother, and even for non-religious women. This includes [even extreme cases like] a woman who is promiscuous or mentally ill and has decided to abort her baby on Shabbos – it is permitted to use any method to speak to her heart and to convince her not to do so, even if those efforts involve the violation of Shabbos.”
Some people today argue that we must allow all abortions in order to ensure that a woman can follow her rabbi if he believes that an abortion is permissible under religious law that the secular law would otherwise forbid. Rabbi Jakobovits does not address this. It seems to me that this argument has merit but must be balanced with the impact on others. Does the need for a limited number of women (presumably less than 1,000 a year) outweigh the destruction of hundreds of thousands of “germinating human lives” each year? That is a hard claim to maintain. Is it better to argue for a religious exemption to the law than to argue for no law at all? There is more to consider regarding a law than whether it properly balances good and suffering, but both sides – and how to balance them – should be an important element in the public policy discussion.