By Rabbi Charles Arian
Last week, a draft majority opinion of the Supreme Court drafted by Justice Samuel Alito, which would reverse the 1973 Roe v. Wade ruling that legalized abortion rights, was leaked to Politico. The consensus across the board is that Roe v. Wade will be reversed and abortion legislation returned to the individual states. Some analysts have concluded that some of Justice Alito’s language, which seems to take for granted the personhood of the fetus, could be used to outlaw abortion everywhere in the United States.
This ruling would in essence enshrine a particular religious view as the law of the land. While within and between the various denominations of Judaism there is disagreement about which abortions are permitted or even required by Jewish law, there is no basis in Judaism for the assertion that a pre-viability fetus is a full human being and that abortion is murder.
To a large extent, the debate over abortion is framed as religious people who are “pro-life” vs. secular people who are “pro-choice.” In point of fact, as a Conservative rabbi I am pro-choice precisely because of our religious teachings, and this is why the Rabbinical Assembly of Conservative Judaism issued a statement in 2019 after the Alabama legislature passed a law which, if it had been allowed to go into effect, would have banned virtually all abortions.
Anti-choice legislation is rooted in the Catholic and Evangelical Christian belief that we become full human beings with full human rights at the moment of conception. Catholics and Evangelicals have every right to believe this, but it is a belief, it is not a scientifically provable fact. The normative Jewish teaching codified in the Talmud and Codes is that a fetus becomes a full human being at the moment of birth — when its head or, in the case of a breach birth, the majority of its body has emerged from the womb. (I would also note that my social media feed shows that many of my college classmates, most of whom are Catholic, also strongly disagree with the hierarchy’s position and the leaked ruling.)
The halachic position that a fetus is not a full human being is rooted in Exodus 21:22-23.
These verses describe a situation where two men are fighting with each other and as a result of their fight, a pregnant woman is injured. If the woman herself dies as a result, the death penalty is incurred. If the fetus dies but not the mother, the perpetrator is fined. The inescapable conclusion from these verses is that a fetus is not a full human being and causing its death is not murder, because in the Pentateuch there is no such thing as a fine for murder. There is only the death penalty. Causing the death of a fetus is a tort, not a crime, and certainly not murder.
The fact that we do not consider a fetus a full human being does not mean that a fetus has no value. The Talmud says in a number of places that “a fetus is a limb of its mother” rather than an independent being itself. But just as we would need a compelling reason to amputate a limb, we need a compelling reason to amputate, so to speak, a fetus. But regardless of whether the halachah would or wouldn’t countenance any particular abortion, the assertion that abortion is murder is contrary to Jewish teachings, full stop.
Halachah going back as far as the Mishnah (codified in 200 CE) actually requires abortion if carrying the pregnancy to term endangers the life of the mother. This is based on the law of the rodef, the “pursuer.” In a case where the fetus endangers its mother’s life, it is considered a “pursuer” and we are obligated to put the welfare of the mother first — up until the point where the head or the majority of the body has emerged, at which point we don’t kill one human being to protect another.
The point of this admittedly cursory survey of halachah regarding abortion is simply to help you understand what Jewish religious teaching on the subject is and why Jews do not share the belief of many Catholics and Evangelicals that abortion is murder and that all abortions should be banned. While in point of fact Judaism might disapprove of some of the reasons some women choose to have abortions, Judaism disapproves of lots of things people do that nevertheless are and should remain perfectly legal.
Having counseled women who were unsure about having an abortion, and even having accompanied women to the abortion clinic, I know that this is a serious decision that is not made lightly. I deeply respect those who have a religiously based opposition to abortion, but there is no reason for any state or the federal government to decide that the Catholic/Evangelical belief is correct and the Jewish and liberal Protestant belief is wrong. I hope and pray that abortion remains safe and legal.
Rabbi Charles Arian is rabbi of Kehilat Shalom in Gaithersburg.