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The Jewish Approach to the American Abortion

In the United States, women theoretically have the right to abort a pregnancy, at least until the point at which the fetus is viable. The Supreme Court decision on Roe v. Wade (1973) confirmed this right on the basis of a woman’s right to privacy as granted by the Fourteenth Amendment’s Due Process Clause. This decision ruled that states could only begin to regulate abortion after the third trimester of a pregnancy. In 1992, the Court mostly upheld this decision in Planned Parenthood v. Casey, although they replaced the third trimester benchmark with prohibiting states from inflicting an “undue burden” on women seeking abortions (New, 2017). The upshot of this decision was that states were given even more flexibility in regulating abortions. Since then, the pro-life movement has further restricted abortion access in many states (New, 2017). By Jewish standards, the actions of the pro-life lobby are outrageous. Jews do not share the common Christian/Catholic position that life begins at conception; in some cases, in fact, Jews allow or even mandate abortions (My Jewish Learning, 2018). According to a poll by the Pew Research Center, 83% of Jews think abortion should be legal in all or most cases, the largest percent of any religious group, even more than the 73% of non-religious people (Pew Research Center’s Religion & Public Life Project, 2018). In America specifically, 76% of Jews say that abortion is morally acceptable, compared to 73% of non-religious Americans, 38% of Catholics, 33% of Protestants, and 18% of Mormons (Jones, 2016). Furthermore, Jewish values emphasize a responsibility to make the world better (Think Jewish), and I would argue that this extends to securing a woman’s right to an abortion. In the current American political climate, it is imperative that all American Jews join the pro-choice movement, due to Jewish beliefs on abortion, sanctity of life, and social action.

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First, I will clarify some definitions related to political stances on abortion. The pro-life movement is the American political movement that primarily uses religious arguments to denounce the legitimacy of abortions. Because of this, throughout this essay, I will use the term “pro-life” interchangeably with “anti-abortion.” This lobby is working hard to restrict and ban abortions, and they are succeeding in many respects. The pro-choice movement is battling the anti-abortion lobby, on the grounds that a woman has a constitutional right to choose to have an abortion. The term “pro-choice” is actually not very applicable to Judaism, because Jewish texts teach that we do not have the liberty to make choices for our own bodies. By Judaism’s thought, each of our bodies is the property of God, so there are certain decisions pertaining to our bodies that we are not at liberty to make; for example, Jews are forbidden from getting tattoos, inflicting self-harm, and committing suicide (My Jewish Learning, 2018). Nonetheless, “pro-abortion” is an incredibly misleading alternative term for the pro-choice lobby, because the lobby is by no means advocating that women should get abortions. Thus, despite its surface-level contradictions with Jewish thought, I will continue to use the term “pro-choice” to describe the political lobby that is fighting to ensure access to safe and legal abortions.

Although religion is often equated with being anti-abortion, Judaism does allow abortion in specific cases. Under normal circumstances, however, abortion is not allowed for a few reasons. First, “wasting seed” on its own is prohibited (Shurpin, 2018), thus male sperm that has fertilized an egg only to be later aborted would fall into this category. Second, Genesis says: “One who sheds the blood of man within man shall his blood be shed,” and this may reference a human life growing inside another human (Shurpin, 2018). But abortion is not necessarily considered murder as this verse of Genesis suggests; Exodus says that if a man hits a pregnant woman causing her to miscarry (effectively an abortion), that “he shall surely be punished when the woman’s husband makes demands of him, and he shall give ” (Shurpin, 2018). Requiring restitution implies that the “crime” of abortion would be closer to destruction of property than to murder. By this view, the Torah considers a fetus to be a resource of considerable value, compared to a human life which is of infinite value. Furthermore, abortion is almost always permitted when a woman’s life is at risk. The sages of the Mishnah clearly state that the mother’s life “takes precedence over life” (Shurpin, 2018). The exception to this is when the majority of the fetus has emerged from the woman’s body, at which point their lives take equal precedence (Shurpin, 2018). When a pregnancy is causing considerable health issues, the fetus is viewed in the law of rodef, in which somebody intent on killing (the fetus) can be killed in order to save the victim (the mother). This can also apply to cases where the mother is experiencing significant mental health issues from the pregnancy (Shurpin, 2018). In Judaism, a fetus is only considered viable at seven months (Shurpin, 2018), although still, an abortion could take place after those seven months if it were absolutely necessary. The bottom line is that while Judaism sees the fetus as a living being, until the moment of its birth, the mother’s life is always prioritized over that of the fetus.

Action from the pro-choice movement is crucial because if the pro-life movement continues to gain ground, abortions will become even less accessible than they already are, if not altogether illegal. Although many legal abortions that are performed in the United States would be considered illegal by Jewish standards, there are also many abortions that rabbis would condone, which cannot happen because the pro-life movement has erected so many barriers. For example, in the entire state of Mississippi there is only one abortion clinic (Carlsen, Ngu, and Simon, 2018). Even if a woman seeking an abortion could physically access this clinic, she must overcome a slew of other challenges, like paying out-of-pocket if she is on Medicaid, and the emotional manipulation of being offered to see ultrasound images and to hear the heartbeat (Carlsen, Ngu, and Simon, 2018). It is unconstitutional to deny a woman an abortion before 20 weeks of her pregnancy, but Mississippi is one of many states that ignore that law, with a ban on abortions after 16 weeks (Carlsen, Ngu, and Simon, 2018). Iowa has the most restrictive ban, at only 6 weeks. Most women do not even know that they are pregnant in this timeframe (Glenza and Morris, 2018).

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Abortions could soon be even more restrictive, and not in the ways that Judaism might recommend. With Brett Kavanaugh approved to the Supreme Court, the majority of justices are now anti-abortion. There are two abortion cases one step away from the Supreme Court, meaning there could be a new ruling on abortion by June 2019. If Roe v. Wade were overturned, there are 24 states that would aggressively restrict, or fully ban abortion; four states already have so-called “trigger laws” that automatically ban abortion if the ruling were overturned (Glenza and Morris, 2018). In January 2018, the Pain-Capable Unborn Children Protection Act, which proposed a national ban on abortions after 20 weeks, passed the House of Representatives (O’Keefe, 2018). Fortunately, it failed to pass in the Senate, but the very fact that there was a vote is highly concerning. Despite the fact that only 1% of abortions occur after 21 weeks (Plannedparenthoodaction.org, 2018), Congress is seeking to entirely prohibit abortions in these situations. This issue should be particularly pertinent under the lense of Judaism, because the tiny fraction of abortions that occur after 21 weeks are usually under more dire circumstances (Plannedparenthoodaction.org, 2018). Even rabbis who would only condone abortions in the most extreme situations must recognize the evil of this potential anti-abortion legislation. If the pro-life lobby were led by rabbis, they might push for legislation that seeks to restrict abortion at any stage, unless the woman is suffering physically or emotionally from the pregnancy and consults a rabbi. But separation of church and state in the U.S. makes this type of legislation unrealistic, so the only way to guarantee a woman’s access to a safe abortion when it is Jewishly legal, is to guarantee her access in all situations. If abortions were completely banned after 20 weeks, or banned altogether, the women who need abortions most urgently will not be able to have the safe procedure that they need.

It is not enough for Jews to recognize that women should have the right to an abortion; as Jews we actually have a responsibility to act on that. As Americans, it is only natural that we think of injustices in terms of rights. After all, as any fourth grader in U.S. could tell you, Americans have the right to “life, liberty, and the pursuit of happiness.” Rights are the basis of this country. When one reaches the age of 18 in America, he or she is considered independent, free to be their own person. In contrast, when a Jewish child reaches maturity (age 12 or 13), she or he becomes bat or bar mitzvah. As Robert M. Cover points out in “Obligation: A Jewish Jurisprudence of the Social Order,” rather than becoming liberated adults, when Jewish children come of age they are literally considered a daughter or son “of the obligations” (qtd. Think Jewish, 2018, p. 66). Cover goes on to explain that the notion of a “right” is not a bad thing, but it is not particularly productive, either. As with the example of education, Jewish law never specifies the right of a child to an education; instead, it puts the responsibility on various teachers to provide this education (qtd. Think Jewish, 2018, p. 67-68). As Cover clarifies, “I believe that every child has a right to decent education and shelter, food and medical care…. I do believe and affirm these rights. But more to the point I also believe that I am commanded – that we are commanded – to realize those rights” (qtd. Think Jewish, 2018, p. 68). So Jews value responsibility, but what does this have to do with abortion? To further connect the two ideas, consider Rochel Holzkenner’s sentiments from “Do We Have the Right to Life, Liberty, and the Pursuit of Happiness?”: As she points out, “the Torah doesn’t say, ‘Ladies, these are your rights! Don’t let anyone take advantage of you.’ Instead, the Torah obligates the husband to take care of his wife in ten ways, including…. to procure medical attention and care if she is ill” (qtd. Think Jewish, 2018, p. 70). This argument for pro-choice advocacy based on Judaism’s intense regulation of marital relationships might fall flat on less observant Jews, but it should speak to strict observers of the Hebrew Bible. If a husband is obligated to care for his wife’s medical needs, and she is in childbearing years, then there is a chance she may need an abortion one day. It follows that if his wife’s ability to have a safe abortion is threatened by the current political situation, he is responsible for fighting to secure that ability for her. This is not just a battle for the politically liberal and non-observant cultural Jews; if for nothing but religious reasons, Orthodox Jews have a mission to fulfill in this fight as well.

Even if rabbis or other Jews still object to women having abortions on the grounds of religious laws, there are many reasons for them to be advocates in spite of their disapproval. The responsibility that the Jewish people have is so strong that it is possible to extend even to things we might personally disagree with. In 2013, when Rhode Island was fighting to legalize same-sex marriage, Rabbi Barry Dolinger, a lawyer and orthodox rabbi, testified in favor of gay marriage despite his contrary religious beliefs. In his testimony, he made a few points about why he decided to come forward in support of the bill. In addressing the religious arguments against same-sex marriage, he reminded the jury of separation between church and state. In his words: “the fabric of our society is built on tolerance, respect,” thus basing a legal decision on religious beliefs would do damage to society, he explains. He goes on to make a crucial clarification, and it is the cornerstone of his speech: “I’m not gonna tell anyone else that because I wouldn’t marry them, that they can’t get married” (RI State Senate Marriage Equality Hearings March 21, 2013 107 Barry Dolinger, 2013). Despite Rabbi Dolinger’s vehement belief that Judaism forbids same-sex marriage, he was equally passionate in believing that it was his duty to support the ability of others to get married in the secular society that he lives in. To him, there was no contradiction. As Jews living in the secular society that we call the United States of America, we must recognize that others should have the right to do things that we might disagree with religiously.

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I recognize that abortion is a heavier issue than same-sex marriage, but if anything, that is even more reason to act. Same-sex marriage does not deal with life and death. In Judaism, any one life has immense value; Mishnah Sendhedrin 4:5 says that man was first created as an individual (Adam) “to teach you that anyone who destroys a life is considered by Scripture to have destroyed an entire world; and anyone who saves a life is as if he saved an entire world” (qtd. Sefaria.org, 2018). It is understandable if one would therefore want abortion to be highly restrictive in order to save more fetuses, but this intuitive response is based on a misconception. In fact, the legality of abortion does not affect abortion rate. Rather, when abortions are illegal (or very restricted by law), the risk of abortion increases, as does the death rate of women (Faúndes and Hardy, 1997). Women don’t stop getting abortions when they are illegal; they just get illegal, dangerous abortions. Embarrassingly, among the wealthy democracies in the world, the U.S. has the highest rate of maternal mortality (Ehrenreich and Quart, 2018). Our maternal mortality rate began increasing in the 2000s, and we have the pro-life lobby to thank for that. Between 2000 and 2014, Texas closed over half of its abortion clinics and cut Planned Parenthood’s funding. Also between 2000 and 2014, the maternal mortality rate in Texas more than doubled (Ehrenreich and Quart, 2018). As Leviticus 19:16 tells us, “You shall not stand by the shedding of your fellow’s blood” (qtd. Think Jewish, 2018, p. 72). We cannot just stay silent, or worse, join the anti-abortion lobby.

The Jewish Pro-Life Foundation states in its mission statement: “Since 2006, we have been saving Jewish lives by promoting life saving solutions to unplanned pregnancy in the Jewish community” (Jewish Pro-Life Foundation, 2018). One thing they do to “save Jewish lives” is refer pregnant women to adoption agencies. To be clear, there is absolutely nothing wrong with giving pregnant women more options in addition to abortion, in the hopes they will not abort their pregnancies. But unfortunately, this foundation is also attempting to remove the option of abortion; for example, they have sent people to join the larger pro-life movement at political demonstrations (My Jewish Learning, 2018). It is shameful and wrong that this organization is attempting to restrict access to abortions in the name of Judaism. Rightfully, many rabbis of the Reform and Conservative movements have spoken out in support of access to abortions. Organizations including the National Council of Jewish Women, Jewish Women International, Hadassah, and the Jewish Council for Public Affairs have also taken action (My Jewish Learning, 2018). Orthodox organizations generally do not support legal protection on abortion, although on occasion the movement has objected to laws that explicitly violate Judaism’s approach to abortion (My Jewish Learning, 2018). How many more worlds will we let be destroyed until we as Jews force politicians to see the true implications of their evil actions?

The Jewish People need to act now. Abortions are being wrongly prohibited in the name of religion, and as a religious people we cannot allow this to happen. As Rabbi Jonathan Sacks notes in “Counting Time,” “The Hebrew Bible is the first document to see time as an arena of change. Tomorrow need not be the same as yesterday…. The abolition of slavery, the recognition of human rights, the construction of a society of equal dignity – these have taken centuries, millennia. But they happened only because people learned to see inequalities and injustices as something other than inevitable” (qtd. Think Jewish, 2018, p. 387-8). When I was walking home yesterday, I passed by a volunteer collecting donations for Planned Parenthood. I stopped to donate what I could, and as I was talking to this volunteer, I found out that he was Jewish as well. This was no coincidence; even non-observant Jews understand that social responsibility is at the core of our Jewish identity. Likewise, Jewish college students have a prime opportunity to organize change in the abortion movement through their campus Hillel or through other organizations. College campuses are notorious for being agents of change through student activism. There is a lot that students can do to help; we can raise funds for Planned Parenthood and pro-choice organizations, we can urge local rabbis and other Jewish leaders to speak out publicly on the matter, and we can educate people that religion is not inherently anti-abortion. Change begins within each individual, and our country needs us right now.

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The Jewish Approach to the American Abortion
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In the United States, women theoretically have the right to abort a pregnancy, at least until the point at which the fetus is viable. The Supreme Court decision on Roe v. Wade (1973) confirmed this right on the basis of a woman’s right to privacy as granted by the Fourteenth Amendment’s Due Process Clause. This decision ruled that states could only begin to regulate abortion after the third trimester of a pregnancy. In 1992, the Court mostly upheld this decision in Planned Parenthood v. Case
2021-08-26 05:47:54
The Jewish Approach to the American Abortion
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