According to Rabbi Yuval Cherlow, a Modern Orthodox rabbi and posek, dean of Yeshivat Hesder Amit Orot Shaul in Kfar Batya, Raanana, and one of the founders of Tzohar, an organization of religious Zionist Orthodox rabbis in Israel, there is a vast distance between the Catholic approach, which apparently led to unconventional legislation against abortion in Alabama, and the Jewish approach.
Alabama House Bill 314 banning abortions at every stage of pregnancy—once a heartbeat is detected—and criminalizing the procedure for doctors (except in the case of medical emergency), was signed into law by Governor Kay Ivey on May 16.
“In general, the Catholic starting point is different from that of halacha,” Rabbi Cherlow noted in an interview with the website Kipa. “According to Catholicism, the fetus is considered to be a human being from the moment of conception, and therefore the law in Alabama is the direct result of this Catholic position. This is not the position of halacha.”
According to Rabbi Cherlow, “the halakha recognizes at various times a definition of the fetus as a person who, should it be harmed, the act would constitute bloodshed, at the moment of conception, forty days after conception, the end of the first trimester, etc. Not only that, but there is disagreement among halachic authorities on many issues in these areas.”
“On the other hand,” he stressed, “the statement that abortion is a matter only up to the woman, or the woman and her husband, is also not the position of the halachah, since the halacha compels us to examine whether this is a prohibition that must be prevented.”
“The primary question that must be decided is whether the abortion is a Torah- or Rabbinical-level prohibition,” Rabbi Cherlow said, explaining that “when it comes to the prohibitions by the Torah – considerations in opposite directions are less significant, in contrast with the rabbinic prohibition, where we recognize competing halachic considerations such as suffering, economic loss, etc.”
“It should be emphasized that even if this is a Torah prohibition, one must examine when in the process of the gestation does this prohibition apply,” he stressed.
Rabbi Cherlow noted that even the late Rabbi Aharon Lichtenstein, who was among the strictest halachic authorities in the area of abortion, argued it was unlikely that the halakha views the elimination of a fertilized egg to be considered bloodshed.
“Therefore, in principle, it can be said that if a legislation has been enacted that denies an abortion in any situation, at any stage of gestation, it is not the accepted halachic practice regarding abortion. On the other hand, it is important to emphasize that the prohibition against abortion should not be taken lightly,” he added.
Asked what are the halachic criteria that would lead to permitting the cessation of a pregnancy, Rabbi Cherlow responded: “There are four main considerations that a halachic posek takes into account: the first is the term of pregnancy; second is the reason for an abortion, the extent to which continuing the pregnancy is associated with medical risks, which makes it more appropriate to perform it, and additional considerations; third is the form of the termination of pregnancy (chemical, scraping, etc.); fourth is additional considerations of various kinds, such as the implications for the continued existence of the family nucleus.”
Therefore, Rabbi Cherlow explained, “the rulings on these matters are very complex in Torah terms, and all this—in addition to what I have explored—requires sensitivity and gentleness which are essential in every issue of this kind.”
“In the end,” he stressed, “the practical decision belongs to those who are directly connected to the issue of abortion, ie, the woman and her husband.”