Alabama and Georgia have passed laws recently that limit or forbid abortions in unprecedented ways, joining a growing number of states that are attempting to dramatically restrict abortion access.
During these charged times, it is appropriate for the Jewish community to remind ourselves that halachah (Jewish law) has a nuanced view of abortion.
It seems that many in the Orthodox Jewish community have not been overly worried by these and other efforts to curtail legal abortion. Ben Shapiro, a conservative commentator who identifies as an Orthodox Jew, has long been a loud voice in favor of government-imposed restrictions on abortion. He has cheered the recent state level bans in print, on social media and in his podcasts. He argues that Judaism is in the “pro-life” political camp, as opposed to “pro-choice.”
But in America, the pro-life narrative is largely articulated by the Christian right, and there are important differences between how Judaism and Christianity view the span of time between conception and birth.
Earlier this year, New York state significantly eased its restrictions on abortions after 24 weeks (often called “late term abortion,” which carries ideological baggage and is preferred on the right). This makes it far more feasible for a woman to have a life-saving abortion, or an abortion of a genetically anomalous fetus, later in pregnancy.
Importantly, the law does not allow for abortions after 24 weeks without a medical justification. Many of these abortions are fully in line with Jewish law but previously had been more legally questionable.
Both the Rabbinical Council of America and Agudath Israel, large organizations that represent Orthodox Jewish communities, condemned the decision because it allowed for “abortion on demand,” in the RCA’s words, before 24 weeks.
However, both organizations also support, as the RCA explained, “the part of the law that permits abortion, even at a late stage, when the mother’s life is at risk.”
Agudath Israel similarly wrote that it “opposes initiatives that would make abortion unlawful even in situations where termination of pregnancy is mandated by religious law … However, it is not necessary to make all abortions permissible in order to protect the rare instance when abortion is truly indicated.”
“Late term” abortion is not a medical term, but rather the political designation used by abortion opponents for cases where the procedure is done after 24 weeks — the point in pregnancy when a generic fetus is potentially capable of life outside the womb (assuming available high-level neonatology care).
Once the fetus can survive outside the womb, the cases in which abortion are necessary to save the mother’s life drop dramatically. However, in the very rare and terrible scenarios where it is necessary, New York state has made it easier to have these abortion procedures.
The responses by these two Orthodox groups underline at least two significant differences when it comes to abortion between Jewish law, on the one hand, and Catholic law and the hard-line pro-life narrative:Jewish law does not consider the fetus to be a being with a soul until it is born. It does not have personhood. Furthermore, before 40 days, some poskim, or deciders of Jewish law, have a low bar for allowing an abortion.
Rabbi Moshe Feinstein, a revered modern posek with one of the most rigid modern positions on abortion, considers a fetus to have near-personhood status and abortion to be similar to murder in most cases. In his view, there must be clear evidence that the mother’s death is close to certain if an abortion is to be permitted (Igros Moshe, Choshen Mishpat II: 69B). But evenFeinstein concurs that if a mother’s life is in danger, abortion is a halachic necessity.
As with all of Jewish law, rabbinical scholars wrestle with how to apply these directives in individual cases. Poskim with expertise in this specific area keep abreast of updates in medical diagnostics and technology, and decide on a case-by-case basis which women should be encouraged to have an abortion and which should not be.
But critically, the new restrictive abortion laws do not allow a woman and her rabbi to reach that decision on her own.
In the Georgia law, abortion is strictly banned and criminalized after approximately six weeks. The law includes a provision that seems to allow for abortion in the case of imminent maternal danger.
But it states that before a legal abortion can proceed, a physician must determine “that a medical emergency exists.” Put in clinical terms, this means that a woman would need to be actively in danger at the time abortion began, along the lines of what Feinstein requires.
There are other nuances in Jewish law that depart from the Christian pro-life narrative:
Jewish law takes psychological and emotional distress into consideration.
The Georgia law specifically states that psychological and emotional distress will not be deemed a danger to the mother, or as a factor contributing to the danger. This view is contrary to the beliefs of many Orthodox poskim.
In Georgia and Alabama, even if a Jewish woman’s obstetrician and psychiatrist encouraged her to terminate a pregnancy due to her psychiatric state or the health status of the fetus, and even if her rabbi told her that Jewish law fully allows her to terminate, she would be forced by law to carry the baby. It would not matter what that means for her safety or the status of the fetus – nor that it violates her religious beliefs.
Strict abortion laws impinge on the religious freedom of observant Jews. Jewish law does not align with the Christian right on this issue, and neither should Orthodox Jews.
Ephraim Sherman is a nurse practitioner and healthcare researcher, focused on the intersection of culture and healthcare.
—JTA News and Features