The inyana d’yoma – the “matter of the day,” is the news that exploded at the beginning of the week about Justice Alito’s draft decision, which, if it maintains the support of four other justices, would overturn Roe v. Wade and Planned Parenthood v. Casey. This, of course, would “send the matter of abortion back to the states,” reversing the federally recognized right to an abortion which has been the law of the land for nearly half a century. This seismic shock to our culture would have profound consequences.
I plan to address this issue in my remarks tomorrow, and I likely will publish those remarks next week. Personally, I am deeply troubled by this development. But right now, rather than delve into my own concerns, I’d like to offer a brief guide to the Jewish view on abortion. Over the past few years, many Republican-controlled states have passed draconian laws greatly restricting access to abortion, and most of those states have passed trigger laws banning it outright – laws which would take effect the moment Roe v. Wade fell. All of the attention on abortion, renewed with this week’s news, has produced a tremendous amount of information and misinformation about the Jewish view. I’d like to offer a few resources in an attempt to clarify.
Left-leaning organizations have asserted that Judaism places virtually no restrictions on abortion. This is not accurate. Jewish law is very nuanced on the issue. As with all matters, Jewish law is rooted in text. There are no texts that deal with abortion in the Tanach (the Hebrew Bible), but there is a story in the book of Exodus that offers some clues:
When [two or more] parties fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact…. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.
Exodus 21:22-25
According to this passage, the Torah seems to be suggesting that the fetus is not a life. The parties fought, a miscarriage ensued (i.e. the baby was killed as a result of the fight), and yet there is no capital punishment for the one who caused it. This is followed by the injunction of talion law: life for life, eye for eye, etc. The implication is that the fetus is not a “life,” otherwise the injuring party would be liable for a capital crime.
Likewise, in the Mishna (Arakhin 1:4), we read about a pregnant woman who is to be executed: they do not wait for her until she gives birth. But if she had already sat on the birthstool (i.e. gone into labor), they wait for her until she gives birth.
The sources, both ancient and modern, are in universal agreement that the life of the mother cannot be jeopardized by the fetus/unborn child (this presents a religious conflict for Jews: some of the laws being passed in the states make no exemption for the life of the mother – this is contrary to halakha). Some sources say that the fetus does not become a “life” until its head emerges from the womb and it takes its first breath. But others (particularly Rabbi Moshe Feinstein, perhaps the most important and influential of the 20th c. poskim/legal decisors), severely frown upon “abortion on demand,” viewing it as homicide, and restrict it to cases where the life of the mother is in danger. These views are predicated on the bedrock Jewish value of reverence for life (obviously, and somewhat controversially defining life as beginning before birth).
A full discussion of this issue could take up many pages. But the lesson is clear: there is no one Jewish view on the matter. There is a broad spectrum of views, from early interpretations of the Tanach, through the Rabbinic period, the medieval period, and until today, that take into consideration all aspects of abortion: on demand, endangering the life of the mother, endangering the psychological or physical welfare of the mother, whether the child will be able to live a happy and productive life, and so on. It is simply wrong to say that Jewish thought and Jewish law either condone or condemn abortion. The topic is far more nuanced than that.
Tomorrow, I hope to argue that none of this matters in the current discussion.
With that teaser, I’ll wish you all a
Shabbat shalom um’vorach – a happy and peaceful Shabbat.