Jewish Law Permits Abortion—So Is There a Case to Restore Reproductive Rights?

Jewish Law Permits Abortion—So Is There a Case to Restore Reproductive Rights?

Jewish Law Permits Abortion—So Is There a Case to Restore Reproductive Rights?

The Supreme Court’s transformation into a theocracy creates a Jewish First Amendment argument for abortion.

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The Jewish position on abortion is simple: It’s permitted. However ignorant the ancient rabbis may have been about the female reproductive system, they managed to land on the revolutionary concept that women are people too—a finding that eludes the 21st-century United States Supreme Court. But could the court’s radical transformation into a theocracy, all but annihilating the distinction between church and state, bite them in the ass when it comes to a Jewish First Amendment case for abortion?

Halacha, the collective legal texts that guide Jewish life, justify abortion well beyond contemporary notions like “safe, legal, and rare” or “to save the life of the mother.” The earliest reference to the ethics of terminating a pregnancy is a short passage in Exodus, which reads like a civil tort, stating that if a pregnant woman is physically injured in a fight and miscarries, her husband may exact a fine from the perpetrator to pay for “damages.” It’s only if she herself is injured that it’s eye-for-an-eye, tooth-for-a-tooth time. Fast-forward several centuries to the Talmud, and we get further confirmation of a woman’s personhood taking priority over her pregnancy, in that the fetus is “like her thigh.” Mind you, the rabbis also have a nonsense understanding of biology, differentiating a fetus from “a mere fluid” at 40 days. But eight weeks and under just so happens to be the time frame within which two-thirds of abortions take place today. Things get really interesting, though, when we hit the 12th century. That’s when Maimonides jumps into the ring after earlier rabbis had decided that the fetus is a “pursuer” (rodef) of the woman, rendering abortion an act of self-defense: “A woman who is having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life.” The physician-philosopher then adds “whether with a knife or with drugs,” effectively green-lighting medical abortion. But the twist comes when he commands us “not to take pity on the life of a rodef.” It’s in this same tractate that Maimonides also codifies when life begins: not at conception, but at crowning: “If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another.”

In a halachic framework, then, there is no fetal personhood and no rights of the unborn. We’re not even supposed to feel bad about abortion. How’s that for a famously guilt-ridden people?

Jewish tradition does not sanction abortion on demand, but it is relatively expansive about why someone might need an abortion. The 18th-­century rabbi Jacob Emden, for example, finds that not only is an adulterous married woman who has become pregnant permitted an abortion, but so is a woman carrying a “legitimate fetus.” The reason? “If there is a great need even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain.” The premier medical ethicist in early 20th-century Israel, Rabbi Eliezer Wal­denberg, then applies Emden’s ruling to allow the abortion of fetuses if they test positive for Tay-Sachs disease—a genetic condition that poses no physical risk to the mother but in most cases proves fatal to the child—writing: “It is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh.” “Kind of like the psychological suffering, great pain, and woe one might experience from an unwanted or forced pregnancy, even,” explains Rabbi Danya Ruttenberg, a scholar in residence at the National Council of Jewish Women.

Whether the First Amendment of the US Constitution protects Jews from Christian nationalism is far less clear. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court accepted a definition of life incompatible with Jewish law and the 83 percent of Jews who approve of abortion, effectively codifying Christian fundamentalism into generally applicable law. Under the First Amendment’s free-exercise clause, it is much harder to argue for an exception than, say, to allege discrimination. As the First Amendment expert and Fordham Law professor Abner Greene explains, “Until and unless the Court overturns its previous 1990 ruling denying the Native American Church an exemption from state narcotics laws for the religious use of peyote [Department of Human Resources of Oregon v. Smith], this is likely a state-by-state fight.” A Miami synagogue has already filed suit against Florida’s 15-week abortion ban.

Here’s how it could play out: The majority of anti-abortion states in the Deep South are also blindingly pro-religion and have enshrined state-level Religious Freedom Restoration Acts. An RFRA requires a state to meet the highest “strict scrutiny” standard in law to show that it is not “substantially burdening” religious practice. In order for a plaintiff to succeed, they’d have to be able to rebut the state’s likely argument that it has a “compelling interest” in protecting all fetal life, regardless of religion. Unlike with the Hobby Lobby case, in which the court exempted the crafting giant from covering birth control for its employees, reasoning that they could still access it through Obamacare, there is no compromise that satisfies both the fetus and the person seeking an abortion. As Professor Greene notes, even if the court overruled the Smith precedent and conducted this same sort of strict-scrutiny review under the First Amendment, “states have pretty wide latitude to voluntarily accommodate religion. If the state wanted to say ‘We’ll let you have your abortion,’ they can.”

It’s possible that Justice Samuel Alito could eventually find himself in an awkward position. Last year, the Roe slayer wrote a 77-page opinion declaring that the court’s previous refusal in Smith to sanction a religious accommodation was “ripe for re-examination.” But the reality is that a religious freedom strategy to restore abortion rights might do little more than highlight the hypocrisy of our current system. Then again, Jewish history is all about a small band of outsiders beating the odds. Let’s spin that dreidel.

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