Abortion, Halakhah, and Civil Society

In “The Jewish Case For Abortion Rights” by the National Council of Jewish Women (NCJW) and a response by my teacher Rabbi David Novak, written for the Jewish Pro-Life Foundation (JPLF) and republished on UTJ Viewpoints, we see what I would call a true mahloket l’shem shamayim – a debate for the sake of heaven.  Both NCJW and JPLF refer to their understanding of the Jewish canon to inform contemporary political advocacy The discussion is interesting but also offers some reason for caution.

JPLF argues that abortion other than to save the life of the mother is considered murder in Jewish law and is patently immoral.  Therefore, Jews should advocate for abortion to be restricted to situations where the mother’s life is in danger.  NCJW argues that halakhah does not see abortion as murder and permits abortion to save the mother from “suffering and emotional pain.”  NCJW concludes that advocating for access to abortion is appropriate both for this reason and because it has implications for such Torah values as personal safety, justice, and freedom.  I largely agree with NCJW’s halakhic conclusion (for reasons I articulated in my comments to a UTJ and Friends Facebook Group post here, see also the analysis of my teacher Rabbi Alan J. Yuter here).  I would add that requiring a woman to endure significant anguish to carry a fetus to term is also morally debatable. However, NCJW seem to conclude without warrant that this halakhic perspective supports an absolute right to abortion, whereas I would argue that the values behind this halakhic conclusion might support laws designed to assess, for instance, the veracity of the mother’s “suffering and emotional pain” before permitting an abortion, at least later in the pregnancy.  In short, I think that while JPLF and NCJW speak in terms of applying their Jewish values to political advocacy in civil society, they both do so in a speculative manner and perhaps read their own moral and cultural conclusions into the Jewish texts that they interpret (no doubt I may be doing the same).

Interestingly, both JPLF and NCJW support advocating for particular laws based on their religious beliefs.  While such attitudes have always raised alarm bells for me, I suppose that there is nothing wrong with this.  While NCJW criticizes laws forbidding abortion as imposing Christian perspectives on others, it strikes me that permitting abortion based on the argument that Judaism does not consider it murder also seeks to establish laws based on perceived Jewish values, even if it does not force anyone to act on those laws.  Abortion is a moral question, requiring us to determine whether and when a fetus has interests that are worthy of protection and when, if ever, those rights override the mother’s autonomy.  It would be perverse to suggest that government should never pass laws that are subject to moral debate.  It would be equally perverse to argue that one should not refer to one’s faith tradition when contemplating a position on these issues of public policy.  Why should a person’s moral judgment be any more or less applicable to a situation because it is grounded in a faith tradition?  I therefore find myself, surprisingly, in agreement with JPLF that there is nothing wrong with Jewish advocates who believe that abortion is murder working with Christian groups who come to the same conclusion.  If the Jewish people are called upon to be a “light unto the nations,” it seems to me that making common cause with others who share our moral outlook is a religious imperative.

Similarly, I think it is fine for Jews who draw another conclusion on the abortion debate to work with others who share their conclusions (including some Christian thinkers and groups).  This group is arguing based on a valid view of our tradition, one backed by such luminaries as Rabbi Eliezer Waldenberg and Hakham Ben-Zion Uziel.  Therefore, I question whether it is fair for JPLF to suggest that NJCW is being deceitful, distorting Judaism, or being “overly influenced by a secularist culture that is in principle hostile” to Jewish morality.  As with most issues, there is no single or unitary Jewish position.

Although I support Jewish groups making common cause with other religious groups on issues of morality in society, I do so with significant trepidation.  As Jews, we should be ever mindful that we will not always agree with practitioners of more widespread religions (in fact, a great many Jews disagree with JPLF’s conclusions on this very issue) and that freedom of religion is designed to protect the rights and interests of minorities.  Therefore, I am concerned by JPLF’s suggestion that we rejoice that “the conversation around abortion has been driven by Christians.”  The fact that “Christians quite correctly recognize that their morality – and that of the Jews – is rooted in a common source: the revealed Torah” is cold comfort in the many situations where Christians understand the Torah differently.  In fact, it is worth remembering that Christians do read the main biblical text related to abortion (Ex. 21:22-25) differently from Jews.  Even if JPLF argues that this different reading does not have practical effects on the current abortion discussion, if the policy debate shifts in favor of the anti-abortion side, differences between Christian and Jewish thinking could well become important in future discussion of when an abortion can be performed to save the life of the mother.  Therefore, we must contemplate limiting principles as to when we work with others with whom we agree religiously, as well as when we defend the prerogatives of those with whom we disagree religiously.  One part of that limiting principle may be that we only advocate for laws which are in fulfillment of our moral obligation to protect individuals or groups from the impact of the actions of another person or group – for example laws to protect a fetus or to compel parents to allow their children to have medical treatments that are against their religious principles.  However, we should also contemplate the extent to which we should allow some leeway to those who are acting out of different moral or religious convictions even in some of these areas.  To borrow a rabbinic phrase – tsarikh iyyun gadol – this requires much careful consideration.