Abortion is a topic that Jews don’t tend to speak about very openly. Similar to Hilkhot Niddah, which relate to personal intra-marital matters such that they are never the topic of public classes (and often not even learned in Yeshivah by unmarried men), the personal nature of abortion related questions might have relegated the topic to something largely unspoken about. But unlike Hilkhot Niddah, which are far more well known — every married man is supposed to review before marriage and is eventually learned in Yeshivah — the Jewish discourse on abortion tends to be exhausted by simplay noting that “it’s assur” (forbidden). It’s somewhat strange, because when it comes to discussing any of the other 248 prohitibions in the Torah, we are rarely satisfied with such simplified assertions without exploring the nature and scope of the prohibition, noting where and when it applies, and where exceptions are warranted.
So while it’s indeed true that abortion is forbidden in Judaism, that’s just about where the consensus on the matter ends. But, perhaps due to the fact that we rarely talk about it, what often happens, is that people make a mental jump from that overly simplified assertion to pontificate in overly absolutist terms as to what Judaism should therefore support when it comes to politics and the legality of abortion.
The recently passed Texas law forbidding all abortions after six weeks caused quite a buzz in many aspects of society, including among varying groups of Jews. But as has become increasingly characteristic of media, these takes are often the most extreme possible — which indeed generate the greatest number of likes, dislikes, comments, and all forms of online engagement. From villifying the Texas legislature as forcefully attacking all women and antithetical to Torah teaching that advocates for protecting the vulnerable to exuberantly lauding the Texan jurists for championing the Torah value of the prohibition of abortion — it would appear that our general hesitation to speak openly about abortion has sown much confusion.
But it’s not just in the inter-Jewish discourse that this is true. In the US, discussion of abortion is almost always intertwined with politics and law. And even then, the politics are so overly simplified to almost the point of absurdity. From the political discourse, it would seem that only two options exist: Pro-choice – which advocates for unfettered access to abortion on demand at all stages of pregancy; and Pro-life – which advocates to prohibit all forms of abortion under all circumstances.
When presented as the most extreme formulations of Pro-choice vs. Pro-life as the only options on the table, Judaism naturally tends toward the Pro-life position. Fundamentally, it seems to fit with Halakhah’s primary concern with sanctity of life and insistence that saving lives take precendence to pretty much all other considerations. But this instinctive reaction cuts somewhat deeper — since the philosophical underpinnings of the Pro-choice movement in this most extreme formulation, are indeed antithetical to Judaism.
Judaism does not subscribe to the belief that because the embryo / fetus / baby is growing inside a woman’s body that she has a right to do with it as she wishes. According to Jewish belief, our bodies aren’t ours to do with whatever we’d like. This isn’t about asserting control over women’s bodies, but rather an outgrowth of the the general Jewish principle that our bodies – both male and female – are on loan to us from God. As custodians of His gift, there are certain parameters that we must abide by in caring for ourselves. Harming oneself is therefore considered to be a Torah prohibition. A similar rationale underlies the prohibitions of tattoos, certain types of haircuts, or even being believed in court about a matter that would result in our own corporeal punishment.
But what should matter more than one philosophical perspective justifying a particular approach to a law, is what actually happens on the ground. When you look at an actual survey of Americans, more than 50% find themselves somewhere between those two poles. ((Charles Camosy, Beyond the Abortion Wars: A Way Forward for a New Generation, pp. 26-29). Most (but certainly not all) are comfortable with some abortion sometimes, but not always. And while obviously the devil is in the details, it’s important to realize that the country is not split between two groups at extreme odds with each other, but — like most other issues — represents a full spectrum of varying opinions. It also means, that although Judaism certainly doesn’t align with the philosophical justification for the most extreme formulation of the Pro-choice camp, it most certainly doesn’t exclude being in better harmony with other elements.
So even while the media / American political discourse presents only two options, Halakhah fits somewhere in between. Abortion is clearly forbidden, although the prohibition is clearly not absolute. Indeed, some have suggested that it’s very highly likely that each person reading this knows somebody who had an abortion (with a strong likelihood that it was halakhically sanctioned) but likely don’t realize that you know them. While it certainly needs an extensive halakhic analysis, it’s certainly not true that most Poskim only allow an abortion for an imminent life threatening emergency.
While that most extreme permission is already described in the Mishnah (Ohalot 1:7), there are a great many instances that may endanger the mother’s health (both physical and mental) that require decisive, but not necessarily immediate action. Defining the parameters of what consitutes danger, what qualifies as dangerous, taken together with the likelihood of a healthy, successful pregnancy given those circumstances are all matters of halakhic debate. Effectively, this means that even those Poskim who adopt a more strict approach to abortion have almost certainly issued lenient rulings at certain instances. As a keen observer of Orthodox Judaism once noted, “You know a frum couple that has terminated a pregnancy. You just don’t know that you know a frum couple that has terminated a pregnancy.”
All of this matters, because almost all of these decisions are made after more than six weeks of pregnancy. And unlike in Jewish law where pregnancy is measured from the time a woman goes to the mikvah, for medical and legal purposes, it’s measured from the onset of the woman’s last menstrual period. (Meaning, that by the time a woman goes to the mikvah, it can turn out retroactively that she was ‘already’ two weeks pregnant.) Six weeks is 42 days. This leaves very little time for many of these weighty and difficult questions to be asked, researched, and properly adjudicated. Additionally, some Poskim will often issue a more lenient ruling during the first 40 days of pregnancy — when measured halakhically. Practically, from a medical/legal perspective, this corresponds to 54 days of pregnancy, well after the newly enacted ban has already taken effect. And it remains highly unclear whether and how the new Texas law will relate to any of these concerns, as mandates a very narrow window of possible exceptions.
What all this amounts to is that Judaism doesn’t fit neatly into either the Pro-Choice or the Pro-Life boxes. And when you think about it, it’s not only to be expected, but is a feature of the breadth, complexity, and nuance of Jewish law. Why should what we regard as the repository of Divine wisdom honed over millenia of investigative thought be bound by the whims of political movements created in the US in the past century? Halakhah neither needs the imprimatur of social movements nor should it be defined along their lines. The Halakhot of abortion are complicated and certainly not monolithic.
Religiously adherent Jews often react instintively to what is viewed as the overly permissive stance of the most extreme formulation of the Pro-Choice stance, opting for what appears to be a more comfortable home in the Pro-Life camp, without actually recognizing the latter’s correspondingly most extreme formulation is also antithetical to Judaism. In other words, Halakhah often forbids abortion, but also sometimes allows it. It’s complicated and there’s a lot that goes into each halakhic decision — most of which, the vast majority of us will never be aware of. Across the board, these are often gut-wrenching decisions, full of emotion, and rarely taken lightly. They are also deeply personal. What is impossibly difficult for one family, might be tolerable for another. Challenges that a certain couple is able to endure, may send another into a mental breakdown. All of this is part of the finely balanced halakhic calculus.
The newly minted Texas law takes all that nuance away and decides for all of us what is acceptable and what is not. It leaves us without the ability to deliberate, to consider, and recognize that difficult decisions are rarely quickly made. Pretending that it represents a more conservative, life-affirming stance, without recognizing the concomittent inherent drawbacks, simply feeds the media frenzy that only allows for the most click-generating extreme positions and robs the halakhically observant Jew of all of that nuance that is both necessary and a feature of how the Torah relates to abortion.
