The Abortion Debate: What Exactly is at Stake?

When the Oklahoma State House of Representatives passed and the State’s Governor Kevin Stitt signed into law legislation outlawing abortions once a fetal heartbeat is detected,[1] the Pro Choice Planned Parenthood took vigorous exception to the legislation.[2] The Liberal Orthodox Torat Chaim Rabbinical Association presented this petition to Oklahoma Governor Stitt:

We, the undersigned Orthodox rabbis, respond with alarm to the 2022 Oklahoma abortion bill, called the Oklahoma Heartbeat Act, which effectively bans abortions after six weeks of pregnancy (four weeks from conception).

Jewish law shows the utmost concern for life and potential life. Our communities are emphatically pro-natal, celebrating new lives and investing heavily in the education and moral development of our children. At the same time, there are cases where Jewish law requires aborting a pregnancy. Abortions are devastating, and we counsel women in situations where tragedy is nearly inevitable or has already occurred. But tragedies happen, and abortion is a medical procedure used by Jews since antiquity to mitigate dire outcomes and protect life.[3]

And Torat Chayim also protested the similarly draconian anti-abortion Texas law:

We, the undersigned Orthodox rabbis, respond with alarm to the 2021 Texas Senate Bill 8 which effectively bans abortions after six weeks of pregnancy (four weeks from conception).

Jewish law shows the utmost concern for life and potential life. Our communities are emphatically pro-natal, celebrating new lives and investing heavily in the education and moral development of our children. At the same time, there are cases where Jewish law requires aborting a pregnancy. Abortions are devastating, and we counsel them in situations where tragedy is nearly inevitable or has already occurred. But tragedies happen, and abortion is a medical procedure used by Jews since antiquity to mitigate dire outcomes and protect life.[4]

Torat Chaim’s expressed formal, stated position on abortion reflects the unchallenged, unambiguous Orthodox rabbinic consensus that an abortion is mandatory when the fetus endangers the gestating mother’s life.[5] But the Oklahoma and Texas laws do not forbid abortions when the fetus endangers the gestating mother’s life.[6] At stake in this very acrimonious debate is the legal status of discretionary abortions, those abortions performed when the mother’s life is not at risk. Political/theological conservatives are usually “anti-abortion” because they proclaim themselves to be “pro-life,” adopting the maximalist position that human life begins at the instant of conception. Alternatively, those who insist that all abortions must remain legal and accessible are “pro-choice,” maintaining that the autonomous, modern female possesses the right to choose how to deal with her body and specifically whether or not to carry her pregnancy to term.

A draft of a Supreme Court opinion overturning Roe v. Wade was penned by the politically conservative Associate Justice Samuel Alito. Roe v. Wade maintains that the alleged right to undergo an abortion is grounded in an implied but textually unattested Constitutional “right to privacy.” The Court’s provisional draft, Dobbs v. Jackson Women’s Health Organization, articulates what would, if accepted by the Court’s majority, become American Constitutional law, and the “right to privacy” and its derivative right to abort a fetus would both be repealed.  Both abortion opponents and advocates fail to address their adversary’s position appropriately. Pro-choice advocates bemoan that Dobbs v. Jackson renders abortion illegal, while “pro-life” supporters are often prepared to impose their own subjective religious, moral, and social predilections upon others, without regard for the inevitable pluralism of conscience present in the electorate.

Unfortunately, against protocol, tradition, professional legal ethics, and possibly even legal statute,[7] Alito’s draft was leaked to and posted on Politico.[8] Most of the reactions to Alito’s opinion reveal a great deal about those who reacted to Alito’s draft, but precious little about the coherence, meaning, and actual normative implications of the opinion. Vice President Kamala Harris excoriated the draft’s conclusion with the challenge, “overturning the right to an abortion is an attack on women.”[9] The Atlantic’s Adam Serwer interprets the leaked draft from his own Progressive political perspective with exquisite clarity. He regards the Dobbs v. Jackson draft to be not only a narrow repeal of Roe v. Wade, but a reactionary revolution the telos of which is to undo secular modernity.  Serwer’s article’s title, “Alito’s Plan to Repeal the 20th Century,”[10] implies that Dobbs v. Jackson’s overturning Roe v. Wade is a dangerous, despicable, and detestable assault upon America’s politically legitimate, permissive, and secular elite civic culture.[11]

For Serwer, “[i]f the conservative justice’s draft opinion is adopted by the Court, key advances of the past hundred years could be rolled back.”[12] Serwer’s apparent criterion for legal validity is whether the law is consistent with and advances his own ideological narrative. From Serwer’s perspective, Alito’s opinion, that there is no formal Constitutional right to undergo an abortion, is an instance of social injustice:

If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies….The draft, written by Justice Samuel Alito, is sweeping and radical. There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These justices are doing what they were put there to do.[13]

Serwer is so repulsed by Alito’s opinion that he does not subject the draft to reasoned, academic analysis. Sharing Serwer’s ideology and first principles, Alicia Victoria Lozano expresses the ominous fear that overturning Roe v. Wade will erode all sorts of individual rights:

With trigger laws in 13 states poised to go into effect if the Supreme Court strikes down Roe v. Wade, a new era of restricted access to birth control could unfold in states that narrowly define when life begins, legal experts say….In Louisiana, legislation would classify abortion as a homicide and define “personhood” as beginning from the moment of fertilization. Contraception methods like Plan B and certain types of intrauterine devices, or IUDs, could be restricted under the bill, said Cathren Cohen, a scholar of law and policy at the UCLA Law Center. “Anything that would prevent a fertilized egg from turning into a pregnancy and being born into a baby could be considered a homicide,” she [=Cohen] said. “If you define a pregnancy and you define a person as including just this fertilized egg, then technically you are legislating that an IUD can cause an abortion.”[14]

The overturning of Roe v. Wade actually gives democratically elected legislators the opportunity to express the “will of the people” regarding the abortion issue. Apparently, the secular, intellectual elite supporters of Roe v. Wade do not really support a Democratic resolution of the abortion conflict; this elite demands an autonomy and license that are not subject to democratic review or a moral communal consensus.

The pro-life advocates are equally passionate, principled, and articulate their approval of Alito’s opinion.  CNN reports that

Abortion opponents saw everything they have hoped for in their decades-long partnership with the broader legal conservative movement in a draft Supreme Court majority opinion disclosed Monday that, if ultimately adopted by the court, would end nationwide abortion rights protections for Americans.[15]

Pro-life, anti-abortion advocates see in the leaked draft a welcome vindication:

“Justice Alito did a tour de force on the history of abortion law that just made it abundantly clear how absurd the idea is that abortion is a fundamental right, rooted in American history and Constitution, in any sense,” said Carrie Severino, the president of the conservative Judicial Crisis Network. “It’s so heartening to know that we finally have a majority of justices on the Supreme Court who recognize the legitimate way to interpret the Constitution.”[16]

And the worldly, Traditionalist Orthodox intellectual, Rosh Yeshiva, and Law School professor, Rabbi J. David Bleich, seconds this sentiment:

In Roe v. Wade the Court astutely acknowledged that it could not determine the moment at which human life begins. Of course not! Human life begins in germ plasm within the sperm and continues until decomposition in the grave. How the human organism is to be treated at any point along that continuum is a legal, moral and theological question not necessarily related to any scientific or empirical phenomenon. But instead of candidly recognizing that ignorance does not justify feticide, the Supreme Court did precisely the opposite. It found itself powerless to protect a merely possible homo sapien…. A hunter hiking through the woods catches sight of an apparition. He cannot determine whether what he sees is a bear or a human being. He shoots and to his chagrin discovers that he has killed a man. Is he guilty of negligent manslaughter or worse?[17]

Bleich’s elegant diction affirms a Jewish view of abortion that is close but not identical to the Roman Catholic view,[18] as Talmudic law does mandate an abortion when a pregnancy endangers the mother’s life.[19] Popular religion Orthodox apologetics presents abortion to be similar to but not quite evil as murder.[20]

The anti-abortion PA Family offered the following unconditional endorsement of Alito’s opinion:

Justice Samuel Alito’s draft opinion contains the truth and clarity that our country desperately needs. In the draft, Alito asserts that Roe completely invented the “right” to abortion, and therefore the decision should be overturned.  ‘The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the due Process Clause of the Fourteenth Amendment…Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” he writes. “And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He goes on to explain that abortion is entirely different from any other issue. “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’”…Finally, he notes that the court is not removing power from women, as the left erroneously claims, but rather returning it to them. ‘Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.’”[21]

A close, literary reading of this citation reveals that Alito’s actual words in point of fact yield a far more intellectually subtle, logically consistent, and methodologically elegant Maimonidean approach to legal exegesis. While Alito’s legal reasoning may well yield what is taken by some readers to be a politically welcome conclusion, Alito’s actual ruling entails a rigorously consistent exemplar of Legal Formalism. For full disclosure, I am a pro-choice Orthodox rabbi because this conclusion follows from my philological reading of Judaism’s canonical library and the resultant norms that the canon actually prescribes.[22] The Jewish legal order posits the axiom of a divinely revealed law that postulates as its Basic Norm the legal doctrine of the “yoke of God’s Kingdom.”[23] Accepting God’s kingship obliges the covenanted Jew to obey God’s commands as they are recorded and memorialized in the Torah’s canonical library. According to the Jewish Legal Formalist approach, God’s will is revealed by the philological parsing of the Written and Oral Torah canonical library, which came to closure with the academy of Ravina I and R. Ashi.[24] Latter day rabbis are thus not authorized to impose their own will, intuitions, predilections, or preferences upon the plain sense of the Oral Torah canon in order to supersede its canonical norms. The post-Talmudic rabbinical judge interprets and applies the memorialized legal norm based upon a plain sense rendering of the recorded norms’ actual diction. Legal Realism, in which law is created by judges, may find its legitimate place in the Beit Din ha-Gadol, which is empowered to generate Torah,[25] but post-Talmudic rabbinical judges [a] may issue apodictic legislation that only obliges the community they are appointed to and have the jurisdiction to serve [b], and are limited only by Jewish law as promulgated up to and including the Academy of Rav Ashi toward the end of the Amoraic period, unless the latter day rabbi is confronted by an emergency. Post-Talmudic rabbinical judges are neither authorized nor entitled to override canonical Talmudic law unless the rabbi is confronted by an emergency.[26]

Justice Alito describes himself as a “practical originalist.” [27] This designation affirms that the role of the Supreme Court Justice is to determine if a given norm is Constitutionally valid, i.e. that it does not conflict with higher grade norms and that it was enacted into Law according to the legislative provisions of the legal order. A halakhic legislated norm is valid if, following Maimonides’ understanding,[28] its content and prescriptions are consistent with, i.e. they do not contradict, the canonical Oral Torah legal order. Significantly, Alito did not comment on the normativity of abortion because, absent a formal, identifiable norm, that determination is not within his role as a jurist to make.  When serving in his judicial role, Alito is only bound by the explicit, memorialized statute, and for sure not by his Roman Catholic religious heritage or his personal, conservative political commitments. His judicial position as a legal referee shapes his finding that there is not even a hint of a right to abort a fetus, or for that matter, a right to privacy, in the Constitution. To this view, “rights” are not privileges that are intuited by charismatics or proclaimed by parochial partisans, self-appointed prophets, or skilled politicians; these rights are, as they are enumerated in the American Constitution, explicitly memorialized norms, such as the rights detailed in the Bill of Rights. Since the Constitution says nothing about abortion in any context and knows nothing of a presumed “right to privacy” upon which Roe v. Wade is based [and for Alito, biased], there is, at least for Alito and like-minded Legal Formalists,[29] no warrant or jurisdiction for the Supreme Court to determine whether abortions should be allowed or outlawed. Thus, the claim that Alito ruled to deny a woman’s right to choose not to see a pregnancy to term is an unfortunate and inaccurate misread and mislead that is itself based on misplaced emotion, holy hyperbole, and an unprincipled manipulation of the canonical legal text. This legal mislead reconstructs and reconstitutes the Law into an instrument of social control to be applied arbitrarily—and self-servingly—by the self-selected elite. Alito’s draft’s conclusion only asserts that there is no Constitutional right to, or for that matter, restriction of access to an abortion. In the legally secular American Democracy and public square, the forums which are authorized to determine the right to and permissive parameters of licit abortions are  Legislatures, i.e. the House of Representatives and the Senate, not the judiciary. As a private citizen and as a Roman Catholic,[30] Alito has every right to vote for the legislators and civil leadership voices who best represent his own religious and political points of view. But as a Justice serving on the Supreme court, Alito’s judicial role is that of referee, umpire, and assessor, not as an advocate, cheerleader, or promoter. Indeed, the “originalist,” formalist jurist is duty bound to rule against her or his own sense of right when the relevant, recorded statute indicates otherwise.[31] Alito’s actual opinion neither affirms nor denies a woman’s right to an abortion because it is not within his mission to do so because the Constitution does not assign that role to him.

Were Alito’s Roman Catholic commitments motivating his legal opinion on Roe v. Wade, he could, should, and would have argued that both biological and legal life begin when the ovum is fertilized at conception. And were he ruling as a religiously committed Roman Catholic and not as an Associate Justice of the Supreme Court, he would not be empowered to approve of the Legislative branch of government overriding the teaching Authority of his own Roman Catholic Church.

Those who disagree with Alito’s professional determination that the abortion issue is a matter for the Legislature and not the Judiciary to decide are Legal Realists, not Legal Formalists. These jurists believe that law must be secular, pragmatic, and utilitarian. The legal telos as intuited by the enlightened intellectual elite assumes in at least some instances the power to override the letter of the legislated legal norm.

Ironically, Alito’s opinion is in point of fact radically democratic. Rather than decide whether an abortion should be legal or not, Alito appropriately does not articulate his personal views on the issue precisely because his private commitments have no place in the conversation. The American electorate is deeply divided on the abortion issue. There are no “objective” or consensus  intellectual benchmarks available to resolve the matter; the Hebrew Scriptures and the Talmud has been read and invoked to support both pro-choice and pro-life positions. The American way to settle this vexing issue is the democratic gambit; let the people, through their elected representatives, decide. Another gambit was suggested by the Torat Chaim Orthodox rabbis. If abortion access is understood as a religious matter, the civil Government should not interfere with Constitutionally protected acts of conscience based upon religious commitments. Roman Catholics and Orthodox Jews have different standards regarding abortions, and the Constitutionally protected Freedom of Religion might be a more fruitful avenue for the judiciary to reference than a textually unattested right of privacy.

My reading of the canonical Halakhic tradition assigns the status of mamon, or property value,[32] to the being the condemned woman is carrying in her womb. Just as the historical Halakhic Jewish tradition is divided on the ethics of abortion, so too are the Right and Left of the American legal landscape. Just as maligning pro-choice advocates as “murderers” is hyperbolic excess, those who are “pro-choice” would do well to follow the example of the late, liberal Justice Ruth Bader Ginsburg who, like the conservative Justice Alito, thought that Roe v. Wade “was a faulty decision.”[33] It is reported that Ginsburg

would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts…. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights. “Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”[34]

Justice Ginsburg was a principled, thoughtful, ideologically committed, liberal jurist.  It is a matter of fact that she enjoyed a very cordial professional as well as a warm personal relationship with her very conservative colleague, Justice Antonin Scalia. For Ginsburg, correct judicial process insures the incorruptibility of the law; for a legal decision to be accepted as legitimate by the losing litigant as well as the professional legal community, the agreed upon rules of the legal “game” must be applied with exacting precision and uncompromising fairness. Roe v. Wade is based upon a judicially invented, or “legislated” right of privacy. A Constitution that can be so creatively interpreted—and manipulated—is an instrument of power to be applied by an ideological elite, not a condition of power by which the legitimacy of that elite might be assessed.

In sum, both the political Left and Right are now both behaving improperly.  Some voices on the political Left believe that the leaking of confidential information and the intimidation of the Supreme Court justices are politically justified acts; winning the case at hand is so critical that intimidation, coercion, and even violence have become in some quarters legitimate political instruments. On one hand, the Left is concerned with opposing hurtful speech, preventing cruelty to animals, with a moral preference for vegetarianism and veganism, and abolishing capital punishment. Curiously, the concern for avoiding hurtful speech is rarely extended to political opponents.

Conceding that the unborn fetus is not yet a legal person the destruction of which would be considered to be murder, the fetal dismembering that occurs during an abortion should be no less a moral concern than an ethically grounded discomfort with a carnivorous human diet. After all, the fetus’s only “offense” is often its being conceived in a womb of a woman who finds her fetus to be unwanted, inconvenient, and an intrusive disruption to her everyday life, even though in most cases she willingly engaged in the act that produced the fetus in the first place. In the case of a fetus conceived in adultery and carrying the taint of illegitimacy [mamzerut], R. Jacob Emden authorizes an abortion.[35] It stands to reason that pregnancies due to rape or incest should similarly be permitted.[36]

The American Christian religious Right views abortion as murder and the Orthodox Jewish Right tends to consider abortion similar to but not quite as grave a wrongdoing as murder. Evangelical Protestants, who are  bound by its Bible alone [sola Scriptura],[37] would do well to explain why Hebrew Scripture distinguishes between accidental homicide, which requires exile to a refuge city,[38] and an unintended feticide, for which compensatory damages must be paid.[39] I am not suggesting that religious communities abandon their principles; I do suggest that there are often a plurality of possibilities and that a democratic society takes the freedom of religion seriously must allow others the right to be wrong.

Law must not be the weapon of power politics. The abortion issue, like any controversial matter, divides communities. Roe v. Wade’s “right to privacy“ seems arbitrary, artificial, forced, and bereft of legal gravitas. Law also provides a shared set of rules by which controversies might be mediated. For both the American Formalist judge and the modern Orthodox Jew, the Law provides a shared language and value system where we do battle with words, not weapons, where we appreciate the decency that accompanies our differences, realizing that the ensuing peace is one of God’s names.  At stake in this contentious debate is not only the legal status of abortion; also at stake and at risk is our collective ability to resolve our differences civilly. When we regard our adversaries as enemies, we do not listen, read, or think. We must be able to appreciate the humanity of our adversaries; instead of trying to win fights and arguments, we would do well to try to win hearts and minds.

[1] https://edition.cnn.com/2022/05/03/politics/oklahoma-heartbeat-act-abortion-governor-stitt-signs/index.html?utm_term=1651618683406edd3121917de&utm_source=cnn_Breaking+News&utm_medium=email&bt_ee=8q0QZyxa37AtWbq%2B7hM%2BMM2LSL8RTC6ec7uVFFNx7FPBitpaLVEP6DZ8EajbLcmf&bt_ts=1651618683409 and https://www.npr.org/2022/04/05/1091119507/oklahoma-legislature-abortion-illegal

[2] https://www.plannedparenthood.org/about-us/newsroom/press-releases/breaking-oklahoma-governor-signs-total-abortion-ban-setting-stage-for-loss-of-access-in-the-region-2

[3] http://www.toratchayimrabbis.org/statements.html

[4] Ibid.

[5] bSanhedrin 72b.

[6] See https://www.nytimes.com/2021/09/\01/health/texas-abortion-law-facts.html and Shulhan Aruch Hoshen Mishpat 425:1.

[7] Attempting to pressure or to intimidate the Court could be understood to be obstruction of justice.

[8] https://www.documentcloud.org/documents/21835435-scotus-initial-draft/

[9] https://www.youtube.com/watch?v=GE0yqtOVdHE

[10] Adam Serwer, https://www.theatlantic.com/ideas/archive/2022/05/alito-leaked-roe-opinion-abortion-supreme-court-civil-rights/629748/

[11] It seems that the more extreme Hard Left regards religion to be tolerated in private but banned from public discourse, like the French political secularity called “laïcité.” See https://www.economist.com/the-economist-explains/2020/11/23/what-is-french-laicite/

[12] Serwer, supra.

[13] Ibid.

[14] https://www.nbcnews.com/news/us-news/birth-control-banned-roe-v-wade-overturned-legal-experts-warn-rcna28253

[15] https://edition.cnn.com/2022/05/03/politics/roe-v-wade-conservatives-alito-opinion/index.html and https://edition.cnn.com/2022/05/03/politics/roe-v-wade-conservatives-alito-opinion/index.html

[16] Ibid.

[17] https://cross-currents.com/2022/05/12/why-reversal-of-roe-v-wade-is-welcome/. For a scathing critique of Bleich’s position, see https://www.lulu.com/shop/dov-bear/dovbear-on-the-parsha/paperback/product-3383612.html?page=1&pageSize=4, posted May 12, 2022. Unfortunately, this critique does not explain why Bleich, to the author’s view, is mistaken. This essay only offers a protest, but not a refutation. For a powerful and devastating critique of Bleich, see Natan Slifkin at http://www.rationalistjudaism.com/2022/05/problematic-contemporary-halakhists.html. Slifkin reads the canon on its plain sense meaning, while Bleich believes that the Law is in accord with the great rabbi consensus, not by what the canon means to those who are not recognized or accepted as great rabbis.

[18] Aaron L. Mackler, Introduction to Jewish and Catholic Bioethics (Georgetown University Press 2003), p. 122 .  See also https://uscatholic.org/articles/202104/choose-compassion-during-complex-pregnancies/, where it is reported that the Roman Catholic Church does permit indirect abortions, as in the case of an ectopic pregnancy.

[19] bSanhedrin 72b. At mAheilot 7:6 [tent- like hoverings. This morphological rendering follows the late Dr.Avraham Goldberg of the Hebrew University], an abortion is required by the Oral Torah if the fetus endangers the mother’s life.

[20] See R. Moshe Feinstein, Iggrot Moshe Hoshen Mishpat 2:69 and the popular https://ph.yhb.org.il/en/14-09-03/

[21] https://pafamily.org/2022/05/05/justice-alitos-draft-is-exactly-whats-needed-to-remedy-the-wrong-of-roe/ The bold text is original.

[22] At “The Abortion Rhetoric Within Orthodox Judaism: Consensus, Conviction, Covenant,” Ideas, March 10, 2009, republished at https://www.jewishideas.org/article/abortion-rhetoric-within-orthodox-judaism-consensus-conviction-covenant, I argue that according Exodus 21:22-23, fetal destruction is compensated by a financial settlement, and not by exile to a Refuge City, which is only imposed for criminally negligent homicide.  Therefore, according to the Biblical text, philologically parsed, abortion is not classified as murder.   We find a synchronic confirmation for this reading in Hammurabi’s Code [CH 210, ANET 17-19] and a diachronic Oral Torah confirmation of this legal status at b’Arachin 7a, where legally protected personhood begins at birth, before which the fetus carries the legal status of property [mamon].  See also Pisqei Uzziel n. 51-52. Since this reading is a minority view among post-Talmudic authorities, it has usually been ignored but has never been refuted. The b’Arachin 7a citation has largely been disregarded because it contradicts the popular Orthodox consensus.  For a similar but not identical analysis, See R. Jeremy Weider, https://open.spotify.com/show/6Q3kD3K9A8t3yxUHtgwJjz .  While he opens with our thesis, he cites and gives credence to the early post-Talmudic authorities, whom he accepts as canonical. He does not state that the canon regards the fetus as property.  Weider holds that there are two approaches to when legally protected life commences, either it is at birth or at some moment before birth. J. David Bleich has also not addressed the b’Arachin 7a passage, I suspect because he actually adopts Legal Realism, the doctrine that the Law is what the judge, who for Bleich is the “great Torah sage,” declares the Law to be. And the sages referenced by Bleich have ruled as they did, ignoring sources deemed to be inconsistent with their conclusion. Our reference to Hammurabi’s Code is as an exegetical tool to clarify Scripture’s plain sense meaning in historical context. It carries no normative value for Judaism. For a riveting comparison-and contrast-of the Exodus and Hammurabi codes, see Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in Studies in the Bible and Jewish Thought (Philadelphia: JPS, 1995) 25–41.

[23] bBerachot 13a-14b.

[24] bBava Metsi’a 86a.

[25] Deuteronomy 17:8-11, Isaiah 2:3, and Maimonides, “Introduction to the Yad Compendium.”  This kind of norm is neither Biblical nor Scriptural, but is “de-Oraita,” or Toraitic Oral Torah law that is man-made human law promulgated with Divine authorization and approval. For a most lucid explanation of this legal concept, see Jose Faur, Studies in the Mishne Torah [Hebrew], (Jerusalem: Mossad ha-Rav Kook,1978), pp.  25-32.

[26] Maimonides, Mamrim 2:4

[27] “Sam Alito: A Civil Man”. The American Spectator. April 21, 2014. Archived from the original on May 22, 2017. Retrieved April 8, 2017.

[28] Maimonides, “Introduction to the Yad compendium.”

[29] I discuss and adopt the formalist legal perspective at “Legal Positivism and Contemporary Legal Discourse,” The Jewish Law Annual 6 (1987), republished in ed., Martin P. Golding, Jewish Law and Legal Theory, (New York: NYU Press, 1993).

[30] See https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html

[31] See also Psalms 15:4

[32] b’Arachin 7a. The Gemara explicitly and unambiguously proclaims that the fetus is mamona  de-ba’al hu,  i.e. the property of the biological father.

[33] https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit

[34] Ibid.

[35] Responsa She’elat Yavets 1:43

[36] Responsa Havot Ya’ir 31 concedes that  according to the formal, legal statute, aborting an illegitimate fetus is  theoretically acceptable, but  he disallows such abortions on public policy grounds. That every case must be decided on its specific facts, norms, and  circumstances relevant to it is affirmed at  https://www.chabad.org/library/article_cdo/aid/529077/jewish/Judaism-and-Abortion.htm. Accordingly, at b’Arachin 7a, a women’s disgrace, or nivvul, triggers the dispensation to authorize an abortion.

[37] https://www.ligonier.org/learn/articles/what-does-sola-scriptura-mean

[38] Numbers 35:6-9

[39] Exodus 21:22. See further footnote 22 above.  It is worth noting that while the accepted read of Exodus 21:22 in rabbinical tradition understands the text to treat the death of the fetus as a monetary offense, other interpretations, including that of the Septuagint and Philo understand killing the fetus to be a capital crime. These texts— and the values they advance—are not part of the canonical, Oral Torah library and therefore are bereft of canonicity and normativity for the Orthodox Jew. My thanks go to R. Noah Gradofsky for calling these two important sources to my attention, as  well as his exacting review on an earlier draft.