Jewish law applies nuance to questions of abortion

Some reply has to be made to Rabbi Mitchell Rocklin and Howard Slugh’s July 6 op-ed, “Justice Kennedy and a kosher court.”

Claiming to describe the “liberal or secular” Jewish argument regarding the current standard for abortion in the United States as a “surprising twist” on Jewish tradition, the authors of the opinion piece claim that “in some circumstances … Jewish law may permit or even require a mother to procure an abortion.” This is true, and there are halachic sources going back 2,000 years that delineate such circumstances. 

Then, however, they proceed to (mis)characterize the argument in these terms: “Let’s ignore for a moment the fact that the overwhelming majority of abortions are not performed to save a mother’s life, and that any abortion regulation would include an exception for such cases.”

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This is patently false. We have seen in the past, as well as in proposed state restrictions on abortion, that there is not an automatic exception for either the life or the health of the mother. If we recall candidate Trump’s words, he proposed criminalizing abortion not by arresting physicians but by locking up the women who have the procedure. Granted, the unconsidered words of a candidate trying to woo the evangelical Christian vote most likely will not become the law of the land — but our president believes that this might be what his voting base wants. That should frighten us as Jews.

It used to be that the Republican party wanted a government that didn’t interfere in citizens’ lives too much. But overturning Roe v. Wade will not magically ensconce the halachic definitions of life and medical necessity in American law — it will do that for Christian definitions.

We in the Jewish community (especially the observant Jewish community) ought to stop imagining that our goal in public policy debates should be to attempt to establish halachic norms as the basis of laws in the United States. (We can’t even reach that level in Israel!) Instead, we should try to assert our rather nuanced halachic opinions in two ways in the United States:

1. Because our positions do not fit into either major camp (pro-abortion on demand, as the authors portray it, or making abortion illegal in almost all cases), we should use our Jewish voices to help others in our country realize that the two political extremes are not the only way of framing the issue. Certainly not reinforce the dichotomy of religious vs. godless or radical, as the authors do. We Jews are religious and we see the issue of abortion differently from either camp.

2. The other issue, as many Jews see it, is not whether we Jews support abortion on demand for any and every possible reason, but whether or not the political and legal climate permits or criminalizes those people who are following Jewish law and tradition. Just as the Jewish community has rightly protested laws that make Jewish ritual slaughter (shechita) or ritual circumcision (brit milah) illegal in various European countries, we ought to protest just as stridently when elements in our own country make it illegal to follow a ruling of the Rambam or the Shulchan Aruch. According to the Talmud and Jewish law codes, a fetus is not considered a baby or a “separate individual” until it has emerged at least halfway from the birth canal.

The fetus is “a limb of its mother” in halacha, and should not be amputated callously; but on the other hand, there is stronger agreement than in most other areas of halacha that the mother’s life and health take precedence. To my mind, this indicates supporting the pro-choice camp in the debates, the side that now is the law of the land. It does not require anybody to have an abortion, but instead it allows the individual — the woman — to make the decision, consulting whomever she wants about whether or not to terminate her pregnancy.

If Roe is overturned, it seems abundantly clear that in more than a dozen states, the procedure will be outlawed. The decision regarding a nascent human life will be in the hands of a region’s legislature or its courts. The woman’s religious sensibilities and requirements will not be taken into consideration.

Whatever a person’s thoughts on the way to achieve a societal stance on abortions that is both ethical and sensitive to minority religious requirements, that person should not — as Rabbi Rocklin and Mr. Slugh do — reduce his or her bnei plugta — the disputants — to straw-man arguments. The subject matter is too important to pretend that religiosity and virtue are only on one side, when at least some of the people fighting to preserve legal access to this medical procedure are just as concerned with right and truth as they are.

David Bockman, the rabbi of Congregation Beth Shalom in Pompton Lakes, is a former president of the New Jersey Rabbinical Assembly region.