Rabbi Heller's Blog

It is overwhelming to consider how many issues of policy, law and culture and governance currently divide American society. The issue of abortion seems to sink into the background. In fact it is still among the most divisive issues, and the stakes are high. One camp describes itself as pro-life. They assert that even before birth, a fetus in its mother’s womb is a full life, and ending that life is nothing short of murder. Another camp casts itself as pro-choice. They assert that if a woman does not have the right to make decisions about her own body, then that is making her less than human. Some states ban abortion altogether, while others are relatively permissive and still others set varying degree of limits. Research has made it clear that in places where abortion is restricted, women are more likely to die or be disabled as a result of pregnancy. And so while the phrase “pikuach nefesh” is sometimes overused, efforts to help people live in restrictive states travel to places where they can get the care they need actually fall into that category. It is for that reason that our congregation has signed on as a partner with the “Red Tent Fund” which makes it easier for people to receive reproductive care which may not be available in their local area.

But many who seek to ban abortion point to the Bible as the source for their crusade. As people of faith, are Jews bound to side with them?

The answer is no. This Shabbat, rabbis and congregations across the United States are coming together to study this issue.  The mainstream of the Jewish tradition begins with the simple fact that terminating is not murder, and must be done to save the life of the mother, and evolves to offer a more sensitive and nuanced approach-- that the focus must be on the well-being of the person whose body it is.  

One obvious place to pick up the thread is the in the book of Exodus, in the portion we read this week. In Exodus 21:12, the penalty for murder is stated quite clearly:

“One who hits a man and he dies- he himself shall die.”

In contrast, a few verses later we read that that is not the case for ending the life of a fetus. 

Exodus 21:22-23 “If men quarrel, and hurt a pregnant woman, so that her fruit depart from her, and yet no further harm follows; he shall be surely punished, according to what the woman’s husband will lay upon him; and he shall pay as the judges determine. And if a disaster follows, then you shall give life for life.”

Causing a pregnancy loss is not a neutral act. There may be a civil penalty associated with it,  but that penalty is clearly not the same as the one for causing the loss of life of a human being who has been born. The loss of a fetus has implications, but they are not the implications of murder.

That does not mean that abortion is without ethical consequences. Elsewhere in rabbinic literature, we are told that the fetus is considered like a "limb of its mother." If a woman converts to Judaism while pregnant, her fetus is converted along with her. However, our bodies and our limbs, do not belong solely to us; they are gifts from God that come with obligations. We are forbidden from harming our own bodies just as we are forbidden from harming those of others. Furthermore, our tradition values all life-- even non-human life. Our Jewish tradition permits killing an animal for food or other products that will sustain human life, but not for sport. So the question for many threads of our tradition is what criteria are sufficient to terminate pregnancy.

The minimalist position is Mishnah Ohilot 7:6.

"The woman who is having difficulty giving birth, we cut up the fetus in the womb, and remove it limb by limb, because her life precedes his. If most of him comes out, you can't touch him, because you can't push off a life for a life.”

The origin for this idea also comes from our Torah portion. Exodus 22:1 implies that if you have legitimate reason to suspect that someone might kill you, one may kill that person first.

And so, our tradition holds that while there is a responsibility to protect the life of a fetus, that responsibility is not absolute, as it would be for a full person, and that the life and well-being of the mother MUST take precedence. Jewish sages may stake out a range of positions as to what level of potential harm to the mother is necessary to outweigh our general respect for life. Must it be an imminent physical threat, or is there a level of emotional distress that constitutes sufficient cause? The shared principle that the mother’s well-being takes priority even until the moment of birth, is not subject to debate.

The American debate about abortion tends to focus on viability-- at what point is the fetus considered to have its own life separate from the mother? When is life said to begin?

Our Jewish tradition offers a range of views:

The Talmud (Sanhedrin 91b) records that Rabbi Judah the Prince was convinced by a pagan emperor that life must begin at conception, meaning that viability is irrelevant, but this is understood in a theological rather than a legal context. Most sages agree that for at least the first six weeks of pregnancy the fetus is considered “mere fluid,” and indeed mystical sources suggest that it is only 40 days after conception that the soul enters the body. Many go on to agree that the fetus cannot be considered to be a human life in any meaningful way until it takes on a more visibly human form, which is after 12 weeks or more. As a result, many sages suggest that the moral implications of abortion are much less serious in the earliest phase of the pregnancy. Then again, I know one rabbi who says that life doesn't actually begin until the kids move out of the house.

Why is it that some other religious groups-- who read the same Bible that we do-- feel so strongly that abortion is forbidden under any circumstances? The answer is Greek to me. Literally! The Septuagint, the most famous translation of the Bible into Greek, interprets the same verse that we read from Exodus: "If there be a disaster, then it is life for life" to mean that "if there is a form to the fetus, then it is life for life"- killing the fetus is considered murder as soon as it has human form. A more restrictive view is drawn from Genesis 9:6, God’s command to Noah that the murderer of a human being is to be punished by death. By modifying the punctuation, one could read the verse to ignore the murder of a born human, and apply the death penalty specifically for taking the life of a fetus. This variant reading is considered in Jewish sources, but is generally not adopted as law. Maimonides splits the difference. Working off the alternate reading of this verse, he writes (Laws of Kings 9:4) that a "Son of Noah" (an ethical non-Jew) who killed a person, even a fetus in its mother's womb, is capitally liable. He would say that Abortion is a capital crime for non-Jews, who only have to follow the basic commandments given to Noah, but not so for Jews, to whom the Exodus verses have priority. Our neighbors who claim that abortion is murder can only base that claim on the the text of the Torah by referring to imprecise translations or re-punctuations, rather than the original. 

For a more exhaustive review of all of the threads of this issue within our tradition, you may wish to see the most recent Teshuvah of the Conservative movement (which received a rare yes vote from me)  https://www.rabbinicalassembly.org/sites/default/files/teshuvot/1703225420_378.pdf

It is true that most threads of our tradition would not align with the most extreme “right to choose” because our tradition would not support abortion for any and all reasons (for example, gender selection). But we certainly do not fall in the “right to life” camp, because we believe that there is not only a right, but an obligation, to terminate when continuing the pregnancy would cause harm to the mother. It is difficult to create blanket criteria for what constitutes harm. It includes not only the classic situations of medical risk, but also cases like “embryo reduction” when, as a result of fertility treatments, a woman may be carrying multiple embryos and some must be terminated for the pregnancy to have the greatest chance of success. However, it also would include the psychological harm caused to the mother by carrying a fetus which not be viable or will suffer severe impediments, or even a pregnancy which is a result of circumstances that cause shame or distress. Most importantly, this decision bears profound ethical implication. We would hope that each woman would seek ethical guidance, but we recognize that often the “right answer” depends on factors that are unique to each woman and cannot be legislated in broad strokes.

A helpful analogy is that abortion is like divorce. It is an unfortunate end to something with holy potential. It something that in the abstract no-one should want. And yet we would be wrong to close off that avenue for the many cases when it is needed. Moreover, it is hard for any of us to judge the experience of another person facing that choice.

The Jewish approach suggests that as a community, we should advocate for a world where medically recommended abortion is safe and legal, with room left to consider the individual circumstances of the woman. In the meanwhile, given the real risk to women’s lives when it is banned, we should partner with organizations that make abortion available. This has become more complicated in the last year. There are a number of national organizations that fight for reproductive rights. However, since October 7^th some prominent and effective groups have also taken on anti-Israel and antisemitic views. Jews who wanted to make a difference in this area, but could not stomach partnering with groups that are hateful to Jews, have started their own efforts. We have chosen to partner with one such group, the Red Tent fund. https://www.theredtentfund.org.