The Union of Orthodox Jewish Congregations of America (Orthodox Union) recently issued the following statement regarding the US Supreme Court’s potential overturning of Roe v Wade:
The Orthodox Union is unable to either mourn or celebrate the news reports of the U.S. Supreme Court’s likely overturning of Roe v Wade. We cannot support absolute bans on abortion—at any time point in a pregnancy—that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that permits “abortion on demand”—at any time point in a pregnancy—and does not confine abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.
As people of faith, we see life as a precious gift granted to us and maintained within us by God. Jewish law places paramount value on choosing life and mandates – not as a right but as a responsibility – safeguarding our own lives and the lives of others by behaving in a healthy and secure manner, doing everything in our power to save lives, and refraining from endangering others. This concern for even potential life extends to the unborn fetus and to the terminally ill.
Abortion on demand – the “right to choose” (as well as the “right to die”) – are thus completely at odds with our religious and halachic values. Legislation and court rulings that enshrine such rights concern us deeply on a societal level.
Yet that same mandate to preserve life requires us to be concerned for the life of the mother. Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by Halacha (Jewish law) and should be available to all women irrespective of their economic status. Legislation and court rulings-federally or in any state-that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life.
The extreme polarization around and politicization of the abortion issue does not bode well for a much-needed nuanced result. Human life-the value of everyone created in the Divine Image-is far too important to be treated as a political football.
Abortion in Jewish Law
The traditional Jewish view of abortion does not fit conveniently into either “pro-life” of “pro-choice” camps in the abortion debate. Judaism neither bans abortion completely, nor does it sanction indiscriminate abortion "on demand."
A woman may feel that until the fetus is born, it is a part of her body, and therefore she retains the right to abort an unwanted pregnancy. Does Judaism recognize a right to "choose" abortion? In what situations does Jewish law sanction abortion?
To gain a clear understanding of when abortion is permitted (or even required) and when it is forbidden requires an appreciation of certain nuances of halacha (Jewish law) which govern the status of the fetus.1
The easiest way to conceptualize a fetus in Jewish law is to imagine it as a full-fledged human being – but not quite.2 In most circumstances, the fetus is treated like any other "person." Generally, one may not deliberately harm a fetus. But while it would seem obvious that Judaism holds accountable one who purposefully causes a woman to miscarry, sanctions are even placed upon one who strikes a pregnant woman causing an unintentional miscarriage.3
That is not to say that all rabbinical authorities consider abortion to be murder. The fact that the Torah requires a monetary payment for causing a miscarriage is interpreted by some rabbinical scholars to indicate that abortion is not a capital crime4 and by others as merely indicating that one is not executed for performing an abortion, even though it is a type of murder.5 There is even disagreement regarding whether the prohibition of abortion is Biblical or Rabbinic. Nevertheless, it is universally agreed that the fetus will become a full-fledged human being and there must be a very compelling reason to allow for abortion.
In general, abortion is permitted only if there is direct threat to the mother.
As a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of childbirth. In such a circumstance, the baby is considered tantamount to a rodef, a pursuer6 after the mother with the intent to kill her. Despite the classification of the fetus as a pursuer, once the baby's head or most of its body has been delivered, the baby's life is considered equal to the mother's, and we may not choose one life over another, because it is considered as though they are both pursuing each other.
It is important to point out that the reason that the life of the fetus is subordinate to the mother is because the fetus is the cause of the mother's life-threatening condition, whether directly (e.g. due to toxemia, placenta previa, or breach position) or indirectly (e.g. exacerbation of underlying diabetes, kidney disease, or hypertension).8 A fetus may not be aborted to save the life of any other person whose life is not directly threatened by the fetus, such as use of fetal organs for transplant.
Judaism recognizes psychiatric as well as physical factors in evaluating the potential threat that the fetus poses to the mother. The degree of mental illness that must be present to justify termination of a pregnancy has been widely debated by rabbinic scholars,10 without a clear consensus of opinion regarding the exact criteria for permitting abortion in such instances.11 Nevertheless, all agree that were a pregnancy to cause a woman to become suicidal, there would be grounds for abortion.12
As a rule, Jewish law does not assign relative values to different lives. Therefore, almost most major poskim (Rabbis qualified to decide matters of Jewish law) forbid abortion in cases of abnormalities or deformities found in a fetus. Rabbi Eliezar Yehuda Waldenberg is a notable exception. Rabbi Waldenberg allows first trimester abortion of a fetus that would be born with a deformity that would cause it to suffer, and termination of a fetus with a lethal fetal defect such as Tay Sachs up to the seventh month of gestation.14 The rabbinic experts also discuss the permissibility of abortion for mothers with German measles and babies with prenatal confirmed Down syndrome.
There is a difference of opinion regarding abortion for adultery or in other cases of impregnation from a relationship with someone Biblically forbidden. In cases of rape and incest, a key issue would be the emotional toll exacted from the mother in carrying the fetus to term. In cases of rape, Rabbi Shlomo Zalman Aurbach allows the woman to use methods which prevent pregnancy after intercourse.15 The same analysis used in other cases of emotional harm might be applied here. Cases of adultery interject additional considerations into the debate, with rulings ranging from prohibition to it being a mitzvah to abort.16
I have attempted to distill the essence of the traditional Jewish approach to abortion. Nevertheless, every woman's case is and special, and the parameters determining the permissibility of abortion within Jewish law are nuanced, subtle and complex. It is crucial to remember that when faced with an actual patient, a competent halachic authority must be consulted in every case.
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