Photo Credit: 123rf.com

Abortion is complex on many levels – halachically, hashkafically, emotionally, and politically. For the American Jewish community, the issue is fraught because of the secular laws and politics surrounding it. Neither the “pro-choice” nor “pro-life” approach is consonant with halacha and Torah values.

The “pro-life” movement originates in the Catholic Church which prohibits abortion even when the mother’s life is endangered, an approach that is anathema to halacha. The “pro-choice” movement, on the other hand, awards primacy to personal autonomy: “my body, my choice.” Yet many prohibitions (suicide, self-wounding, tearing flesh over the dead, tearing out hair over the dead, cutting of the pe’ot of the head and beard for men) directly contradict the view that one’s body is one’s own to do with as one wishes; this is true regarding abortion as well. The movements’ slogans, too, are simplistic: personal or religious preferences aside, who opposes choice or life?

Advertisement



 

Halachic Perspectives on the Status of a Fetus

From a halachic perspective, by contrast, the issue at hand and the starting point for analysis is whether a human fetus has the status of a “human life,” “not a human life,” “a potential human life,” or perhaps some other category. This of course necessitates determination of when life begins from a halachic perspective. Moreover, according to the universal view that halacha indeed prohibits many abortions, the precise definition and scope of the prohibition of abortion must be delineated. Clarifying these two intertwined issues is crucial to determining when halacha prohibits, and permits, abortion. Doing so is complex because the foundational halachic sources addressing the status of a fetus present a tension between the view that a fetus is not a human life and the alternate view that a fetus is a human life.

 

Sources that a Fetus is not a Human Life

An example of the first position is in Parshat Mishpatim (Shemot 21:22-23), where the Torah prescribes death for an assailant who kills a pregnant woman, but only a monetary punishment for a blow that terminates her pregnancy without killing her. Numerous Rishonim note that this penalty – money, not death – implies that a fetus does not have the status of a life; otherwise, the payment would contradict the basic principle of v’lo tik’chu kofer lenefesh rotze’ach (Bamidbar 35:31) – the Torah never allows money to be used as a “redemption” for one person’s killing another.

A second source (Mishnah, Ohalot 7:6) states that when a woman is endangered in childbirth, one may save her life by dismembering the fetus and removing it. However, once a majority of the fetus’s body has emerged, it is prohibited to harm it because it now has full human status, and halacha prohibits “pushing aside” one nefesh to save another nefesh. Numerous Rishonim infer from these rulings that before a majority has emerged, the fetus is not a nefesh – even moments before delivery.

A third source (Mishnah, Arachin 7a) rules that if a pregnant woman has been sentenced to death, she is executed without waiting for her to give birth. Elaborating on this Mishna, the Gemara explains that the execution is carried out immediately since the fetus is simply a part of her body. Only in the extraordinary case that her fetus has “uprooted itself” in the final stages of labor does the court delay her execution until after she delivers. Moreover, the amora Shmuel (ibid) rules that before executing her, the court must “strike opposite her uterus” to intentionally kill the fetus. These Talmudic rulings further support the view that a fetus is not a life whose extinction is a form of murder.

 

Sources that a Fetus is a Human Life

Other sources, by contrast, suggest that a fetus is a human life and that feticide is, correspondingly, murder. For example, the Gemara (Sanhedrin 57b) cites a debate amongst the Tannaim whether a Noahide is executed for feticide, presumably for violating the prohibition of murder. Maimonides rules in accordance with the opinion that a Noahide is executed for feticide. A second source is Maimonides (Rotzeach u’Shemirat Nefesh 1:9), who grounds the permission to dismember the fetus of a woman endangered in childbirth in the principle of rodef, the law of the pursuer. This implies that the only reason one may kill the fetus is because it is “pursing the life of the mother,” but otherwise doing so is murder.

A third source suggesting that a fetus has the status of a nefesh is Arachin 7b. The Gemara there rules that if a pregnant woman dies on Shabbat, one may violate a Scriptural prohibition by carrying a knife through a public domain on Shabbat to cut open her uterus to try to save the fetus. If the fetus did not have the status of a nefesh – considerations of pikuach nefesh (saving a life) would presumably not apply.

 

A Fetus as a Potential Life

An intermediate position regarding the status of a fetus is offered by some Rishonim to explain this last point; i.e., how is it possible to desecrate Shabbat for a fetus if, as implied by the Mishnah in Ohalot, it is not a nefesh and hence pikuach nefesh should not apply? Ramban (Niddah 44b) argues that even though a fetus is not a nefesh, the person who will be born will eventually be obligated to observe Shabbat. Hence, halacha permits desecration of Shabbat in this case according to the Talmudic principle of “desecrate one Shabbat for him so that he will observe many Shabbatot.” This solution suggests that while feticide is not murder, a fetus is nonetheless a potential life which suffices to create an obligation to save it under this rubric of pikuach nefesh.

 

Practical Halacha for Jews

According to all three above positions, it is inconceivable that abortion be understood, in halachic terms, as a matter of personal freedom. At the same time, the sources present ample evidence for the view that abortion is not murder.

These disparate positions make it unsurprising that poskim are divided about precisely which prohibition is violated when terminating a Jewish woman’s pregnancy and also result in significant differences in the circumstances in which they permit abortion. A generation ago in the U.S., when Rav Moshe Feinstein, z”l, was unquestionably the most prominent posek, his opinion (Igrot Moshe, CM 2:69) that feticide was murder (non-capital for a Jew, capital for a non-Jew) held sway. In line with this view, Rav Feinstein permitted abortions only when a mother’s life was endangered, physiologically or psychologically.

Currently, many major poskim in the U.S. and Israel – particularly those to whom people pose these questions – rule according to the view of Rav Eliezer Waldenberg (Tzitz Eliezer 13:102) that abortion is prohibited not because it constitutes murder, but because it is chavalah, prohibited wounding of the pregnant woman. Correspondingly, they regularly permit abortion in a broad range of situations, including 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.

Thus, there are multiple legitimate positions in psak halacha regarding abortion in the case of Jews. Presenting one view as the only view or delegitimizing views with which one disagrees distorts halacha, both in principle and as it is actually practiced, thereby doing a disservice both to Jews and to public discourse of Torah.

 

Halachic View of Abortion for Gentiles

Most poskim adopt Maimonides’s view, cited earlier, that feticide for a non-Jew, in cases other than danger to the mother’s life, is capital murder. Some hold this view even when feticide is not murder for a Jew, leading to cases when a permissible abortion according to the lenient view of Tzitz Eliezer for a Jew is capital murder for a non-Jew. Resolving this seeming paradox is beyond the scope of this article but regardless, we obviously cannot advocate that American law treat Jews and non-Jews differently.

Here too it is critical to determine the stage of a pregnancy this prohibition of abortion for gentiles comes into effect. Many authorities rule that a non-Jew may abort within forty days of conception. (Rabbi J. David Bleich cites these views in “Abortion in Halakhic Literature,” Tradition 10:2, 1968, pp. 82-87.) Since the medical establishment calculates gestation from the date of the pregnant woman’s last period, not from conception, halacha’s “forty days” comes out to approximately the end of the eighth week of pregnancy as medically calculated. Chacham Ovadia Yosef (Yabi`a Omer EH 4:1) states that the Talmudic passage regarding a non-Jew and feticide is only relevant from the start of the second trimester (i.e., the end of the 13th week of pregnancy). Rav Aharon Lichtenstein (Tradition 25:4, 1991, p. 5) states that it is only relevant once the fetus is viable. These views imply that the prohibition for gentiles to abort a fetus does not begin until, respectively, the 8th, 13th, or 22nd to 23rd week of gestation.

 

From Halacha to American Politics

All the above notwithstanding, the central question presently facing the American Orthodox community relates primarily not to halacha but rather to the American political arena: Which, if any, position should Orthodox Jews, individually or collectively, adopt publicly regarding the likely demise of Roe v. Wade, and on abortion legislation in general?

A generation ago, two gedolim adopted opposite views on this question.

The Lubavitcher Rebbe’s Noahide Law Approach and Contemporary Context

The Lubavitcher Rebbe was in favor of Jews’ doing everything possible to encourage adherence to Noahide law on the part of gentiles, including advocacy for legislation that would enforce Noahide law. He seems not to have been concerned about possible negative implications of this approach.

Those who adopt this halachically legitimate, logically consistent position, founded on the view that a fetus is a life, have a principled and practical obligation to do whatever they can to stop the murder of hundreds of thousands of lives each year. (Those who disagree with this position must recognize that those holding it consider their obligation to oppose abortion as identical to the duty, agreed upon by all, to forcefully advocate against murder of a baby after birth.) Indeed, many contemporary proponents of overturning Roe v. Wade are quite clear that they seek a national ban on abortion.

Jewish proponents of overturning Roe v. Wade should also adhere to their principles. At the same time, they must recognize the significant pain their view will cause for Jews. Specifically, such supporters would impose tremendous suffering on many Jewish women and families whose halachically legitimate psak would allow – and sometimes even advise – them to avoid such suffering. While most Jews live in politically liberal states unlikely to pass abortion restrictions, large numbers of Jews, including Orthodox ones, live in politically conservative states such as Texas, Florida, and Ohio. Practically speaking, many Jews in these states will be unable to obtain legal termination of pregnancy in other states and will thus be forced to bear and raise children that their psak would permit them to abort as fetuses.

Finally, Jews and others who consider life to begin before birth ought recognize that the question of human life’s beginning is fundamentally metaphysical and that, unlike after birth where it is universally accepted that life has begun with the moral and legal consequences that follow, the status of a fetus has been the subject of legitimate debate since antiquity. Those who disagree with proponents of this position can be equally committed to the value of life yet disagree on what is essentially a matter of faith.

 

Rav Moshe Feinstein’s View and Contemporary Context

His stringent position on abortion notwithstanding, Rav Moshe Feinstein disagreed with the Lubavitcher Rebbe and opposed legislation prohibiting abortion. In general, Rav Feinstein opposed legislation in any area that might give any religion a voice in government matters. He felt that for a small religious minority such as the Jewish people, supporting a firm church-state divide was absolutely necessary even when such legislation might coincide with a Torah viewpoint since any breach of that divide could result in government interference in Jewish religious practice.

Today, the generational shift in psak for Jewish women consulting rabbinic authorities about abortion has made Rav Feinstein’s concern even more compelling. Were Roe v. Wade to fall, laws prohibiting abortion in virtually all circumstances from conception onwards would immediately take effect in numerous states. Even laws with exceptions permitting abortion to save the mother’s life would restrict the options of Jews whose psak would permit termination of a pregnancy in the many cases listed above. Furthermore, some states’ exceptions for maternal welfare may be narrower than halacha’s definition of pikuach nefesh, prohibiting these halachically mandatory abortions, too.

The changed political environment in the United States further reinforces Rav Feinstein’s concern. The Catholic Church, whose influence is the original driving force in the political push to ban abortion, would like to see abortion illegal under all circumstances, including danger to the pregnant woman’s life. Some officials and candidates have already stated that they favor this view.

Moreover, many in the political “pro-life” camp wish to ban not only abortion but also forms of contraception that they consider as equivalent to abortion, such as intrauterine devices (IUDs). This too will negatively impact Orthodox Jews because when halacha permits or recommends contraception, the IUD poses relatively few halachic complications.

At the same time, Orthodox Jews who adopt the legal stance of the “pro-choice” movement must acknowledge that the position “my body, my choice” is not consonant with halacha or with the values of Torah. I see this as part of a generally disturbing trend toward lack of recognition of the sanctity of life, including the movements towards legalizing euthanasia and physician assisted suicide. Orthodox Jews who advocate for a shared legal outcome with the pro-choice movement should recognize that halacha rejects its fundamental outlook.

 

A Pragmatic Approach

In the end, I believe that Rav Moshe’s approach is the prudent one. Ideally, all non-Jews would observe all of the Noahide laws. Nonetheless, halacha does not require Orthodox Jews or Jewry to ensure that observance by our fellow American citizens. On the contrary, we are best served by civil laws allowing maximum flexibility so that every Jew can follow the counsel of her or his posek. We would be wise to allow our fellow citizens the same freedom to follow their own beliefs or religious traditions.

From both pragmatic and philosophical perspectives, then, it is inconceivable to advocate that American law treat Jews and non-Jews differently. If the government is going to restrict abortion, we must expect to be treated equally under the law and to receive no special exemption, religious or otherwise.

Beyond these considerations, religious freedom in the United States has allowed Orthodox Jewry, despite being a tiny minority, to flourish religiously without government persecution even in eras when the United States was an overwhelmingly religious, Christian country. This setting makes me historically and ideologically uncomfortable with imposing my religious beliefs on fellow Americans.

 

The author expresses his deep appreciation to Rabbi Barry Kornblau, founder of Meisharim: Illuminating Priorities for Orthodox Communities, for his extensive assistance with this article.

Advertisement

SHARE
Previous articleThe 10 Commandments Of Personal Finance
Next articleDeepening Our Understanding Of Sefiras Ha’Omer And Shavuos
Rabbi Jeremy Wieder is a Rosh Yeshiva at the Rabbi Isaac Elchanan Theological Seminary and Scholar-in-Residence at Congregation Kehillath Jeshurun in Manhattan.