As every sentient American knows, the leaked draft decision from the Supreme Court that will overturn Roe versus Wade, should nothing change, has caused a great upheaval throughout the country.
Americans grown comfortable with access to abortion were shocked, although they’d had good reason to suspect that something like this was coming. But the caustic nature of Justice Samuel Alito’s decision, along with the thoroughness with which it demolished Roe, caught them by surprise.
Americans who oppose abortion, on the other hand, were pleased, although some foresaw political difficulties ahead. Several of the most fervent among them looked forward to their states’ trigger laws — laws that already have been passed in state legislatures and will be triggered by the overturn of Roe to ban abortion there immediately.
Reactions in the Jewish community were mixed, as no doubt they were in all communities, because communities are not monolithic. But many Jews, no matter where they are on the political spectrum, reacted with some caution, because the debate, while couched in legal language, is theological at its heart. Because the question of abortion brings up questions of life and death, of when life starts and what human life means, it’s necessarily religious.
So we asked some local rabbis for their reactions.
In the Orthodox world, the answers are mainly about halacha; in the liberal world, most of the discussion centered around the rally in Washington, D.C., organized by the National Council of Jewish Women and other Jewish organizations, that many local rabbis and community members went to on Tuesday. So we talked to both an Orthodox halakhist and the local liberal rabbis who went to the rally together.
This is what they said.
Rabbi Dr. Jeremy Wieder of Teaneck is a rosh yeshiva at Yeshiva University’s Rabbi Isaac Elchanan Theological Seminary, where he was ordained and now holds the Gwendolyn and Joseph Straus chair in Talmud.
Abortion is a complicated issue, he said; it’s not a pro-choice/pro-life binary. “Halacha takes neither the pristine pro-life form, which is essentially the Catholic position — that under no circumstances do you kill the fetus, which at conception is a living being that therefore you cannot kill.” Nor does halacha say that any abortion at any time is fine; there is no halachic support at all for that position. So neither the conventional pro-choice nor the standard pro-life arguments work in their purest forms.
There are basically two schools of thought in the Orthodox world, one more and the other less stringent, although that is an oversimplification of many nuanced views, Rabbi Wieder said. But “even the most stringent believes that the life of the mother takes precedence over the life of the fetus until either the head or the majority of the body” — should it be a breach birth, with feet presenting first — “comes out.”
There’s another consideration that Jewish law has to consider but that Catholic theology, which stresses that human life begins at conception, does not.
“Almost every Jewish authority believes that the fetus does not have the status of life before 40 days,” Rabbi Wieder said. That’s counted not as doctors do — from the date of a woman’s last period — but starting when she leaves the mikvah. That’s approximately a week after her period ends, which is approximately a week after it begins. So 40 days from when halacha begins to count gets a woman to just about eight weeks into her pregnancy. That’s still the first trimester, but two thirds into it; according to the internet, about 65 percent of all abortions in the United States are performed by the eight-week mark.
“I am not aware that anyone believes that the fetus has the status of a life that can be terminated before 40 days, so that would not constitute an act of murder or some lesser form of murder,” Rabbi Wieder said; of course by “anyone” he means “any halachic posek,” or decisor. But that does not mean that an abortion automatically be permitted, just that it would not be forbidden.
“This is where halacha does not agree with the pro-life position,” he added. “It is my sense that every state that has a trigger law or is thinking about one makes an exception for the life of the mother, but not necessary for the first eight weeks.”
The most stringent understanding of halacha would not allow for exemptions for rape or incest unless “a psychologist or psychiatrist could testify that it would create suicidal ideation, or something of that nature.” Otherwise, those stringent decisors “would not permit terminating in such a case,” Rabbi Wieder said.
The principle in halacha is that you cannot take a life unless it is necessary to protect another life. If it is necessary to save the mother’s life, the fetus, until it’s at least part way out of the mother’s body, can be destroyed limb by limb — luckily, that is not a method much in use today. But if it’s necessary, it’s allowable. And destroying the fetus, if allowing it to be delivered would kill the mother, is not only acceptable but mandated.
To save a life, almost anything is acceptable, up to and including desecrating Shabbes, Rabbi Wieder said.
The difference between the more stringent and more lenient poskim depends on how they define the act of abortion. Is it murder, or is it wounding? Wounding yourself is prohibited, but can be allowed if necessary to prevent a greater evil. It is not murder. There is nothing good about abortion, but sometimes something bad — allowing the abortion, if it is seen as wounding rather than murdering — still is better than allowing a range of bad outcomes for the mother.
But not all bad outcomes are bad enough to permit abortion, Rabbi Wieder said. “No halakhist could adopt the full-fledged pro-choice position, because I don’t think any Orthodox posek would permit anyone to terminate a pregnancy for economic reasons.
“The solution would be to provide the funds.” A rabbi could reach into his discretionary account to help.
So, Rabbi Wieder said, up to 40, maybe 50 years ago, halacha followed the more stringent decisors. He quoted Rabbi Moshe Feinstein, saying that he “considered abortion after 40 days to be an act of murder, only suspendable if the mother’s life was in danger.”
If the mother’s life was in danger, however, “then one is obligated to end the pregnancy.”
The Rav, Joseph Ber Soloveitchik, “might also have been more stringent, although he too allowed abortion to preserve the mother’s life,” Rabbi Wieder said.
Another prominent posek, Eliezer Yehuda Waldenberg — who was a little younger than Rabbi Soloveitchik and Rabbi Feinstein, and Israeli rather than American — was more lenient, Rabbi Wieder said. He permitted abortion if the parents could be certain that the fetus would have Tay-Sachs disease. “He said that the abortion wouldn’t be fundamentally destructive, so the pain and anguish of the family could dictate it.” The child, if born, would be doomed to die young and in pain, and parents, grandparents, and siblings would have to watch helplessly as the inexorable process continued.
In our time, decisors tend to be lenient, Rabbi Wieder continued. “I am fairly confident that in the modern Orthodox community the two most prominent figures are lenient in situations where the fetus has genetic defects, and where the mother’s life wouldn’t necessarily be threatened, and she wouldn’t necessarily be suicidal, but she would face an adverse situation.”
There are even some poskim who would allow a single woman to have an abortion, because of the stigma she’d face were she to carry the pregnancy to term.
Many poskim tend to be lenient rather than stringent when they are asked about abortion. That’s partly because people looking for rabbinic advice tend to go to those poskim most likely to tell them what they want to hear, Rabbi Wieder said; in a sense, market forces drive the decision. “I call it the law of natural selection of poskim,” he said.
But Jews should consider the practical implications of abortion law as well as halacha, Rabbi Wieder said. He talked about a debate that Rabbi Feinstein and the Lubavitcher rebbe, Menachem Mendel Schneerson, had, in the early 1970s. “Both of them saw abortion as murder,” Rabbi Wieder said. “The Lubavitcher rebbe was in favor of legislation prohibiting most abortions. Reb Moshe, though, thought that if you allowed this kind of legislation, it would eventually come back to hurt Jews, as a religious minority.
“Reb Moshe felt that it wouldn’t end there. Regardless of one’s halachic position, there are those who would be strongly opposed to legislation prohibiting abortion, even if you agreed with the specific legislation being proposed, because it would give a toehold to those who oppose the separation of church and state.
“From a halachic perspective I can in in no way support same-sex marriage, but because of the consideration of my own religious liberties, I don’t feel the need to man the barricades to opposing same-sex marriage in a civil context,” he said. “I want to let people make their own decisions — because who knows what will come next.”
This position has its logical limits, Rabbi Wieder said — if the government were to propose a law allowing infanticide, he’d fight it. That is murder. But abortion is different.
“Abortion is not a scientific question,” he said. “It’s a metaphysical question.”
And, he added, “in a nutshell, this question is really complex.”
Rabbi Wieder discussed his views on abortion in depth on a podcast called Orthodox Conundrum. The episode, from May 8, is called “Abortion in Jewish Law, and Roe v. Wade in Jewish Public Discourse.”
The National Council of Jewish Women held the Jewish Rally for Abortion Justice on Tuesday in Washington, DC.
Members of many local synagogues went to the rally; some drove or took the train, while others boarded buses in South Orange so they could make the long slog to the rally together. The buses left at 4 in the morning, when it’s still dark, even in mid-May, but that cheerless hour did not deter them.
“It’s one of the ways that we feel that we as a community can stand up for an individual’s right to make decisions about their own bodies,” Jesse Olitzky, the Conservative rabbi who leads Congregation Beth El in South Orange, said. It’s important to go to such rallies, to stand and be counted in general, but “this one was particularly important because it’s a Jewish rally.
“Often the arguments that limit a person’s ability to make healthcare and reproductive decisions are made from a faith standpoint, and often those are extreme Christian positions. They use the term ‘Judeo-Christian,’ which is not really a term” — to be clear, it’s not so much that it’s not a term but that’s it’s not really a thing. It’s a fairly meaningless term. “That’s why it’s so important to be clear that the ‘Judeo’ side of things sometimes looks very different from the ‘Christian’ side.
“Both from the Torah and talmudic perspective and the modern halachic perspective, Judaism permits, condones, and sometimes requires abortion,” Rabbi Olitzky continued. “So if the requirement is that we speak from a faith perspective, it is very important to show that from our faith perspective, we think differently.
“We are a country that claims and fails to live up to having a separation between church and state. I respect your faith perspective if it is fundamentally different from mine, but it should not dictate how I make decisions.
“People have the right to make decisions on their own. They shouldn’t need my approval from the bimah. I shouldn’t have to quote halacha or a verse from the Torah. The decision should be between that person and God, or that person and themselves, or that person and a loved one.
“Saying that a woman has the right to choose means that she doesn’t need my approval to make that choice,” he continued.
“And finally, we are a congregation that celebrates egalitarianism,” he concluded. “We have lay leadership and clergy who are women, and for decades we’ve had full ritual participation for women. So how can we be silent when we say that Jewishly and ritually, there is no difference between the genders, that each person is made b’tzelem Elohim, in the image of God.”
But now, the Supreme Court is on the verge of taking away a nearly half-century-old right, and so women in particular will be deprived on a basic one. “For the first time in two generations we have a situation where some people actually will have fewer rights than they did two generations ago,” Rabbi Olitzky said.
It’s important to go to the rally, he said, and he’s encouraged to know that parents are bringing children and teenagers with them. “It’s important to fight to make sure that our children don’t lose the rights that their parents have,” he said. But there’s more to do.
“We are encouraging our congregation to support candidates who also believe in abortion justice, because that is how you ensure that your rights are protected. By codifying them into law. As the midterms approach, we want to help get out the vote, and to make sure that the candidates fighting for a woman’s right to choose are supported and hopefully elected.
“And also locally, we encourage people to volunteer to be clinic escorts. The hatred that we see spewed in the face of a person trying to enter a clinic is terrible. We are trying to support a person’s decision, whatever the decision is. It’s the right decision for them.”
Daniel Cohen is the senior rabbi at Temple Sharey Tefilo Israel, a Reform congregation in South Orange. “This is how going to the rally came about,” he said.
“The SCOTUS brief leaked, and like everyone else I was really disturbed. Then the rally was announced. So I get an email from Jesse, and he says, ‘Are we gonna?’ And I say, ‘Gonna what?’ And he says, ‘Gonna go to the rally.’
“And I say yes. We’re doing this together.” Then other rabbis got involved, and pretty soon there were three buses going down to DC.
“The draft ruling and the snapback laws in some states are not only an assault on women’s rights and on all people’s rights and on privacy in general,” Rabbi Cohen said. “We already see that in some states they are not stopping with abortion. They like to say that this is about religious freedom — it is an impingement on Jewish freedom. The position on abortion is anathema to what Jewish law says.
“Different parts of the Jewish community draw the line in different places, but the line is never at conception, and the fetus is never given the same status as a full-born person,” Rabbi Cohen said. “And so what they are doing is a direct assault on our ability to practice our religion.
“I read a colleague’s Facebook post, and it was really moving, talking about when she had to make the decision to end a pregnancy. She was told that the fetus she was carrying was not viable. Under a lot of the proposed new abortion laws, she would not have been able to do that.
“There is so little compassion in these laws, and the amount of latent and overt misogyny is disturbing, as is the lack of respect for other religions. The tradition I was born into doesn’t impinge on anybody else, but this does. Having abortion protections in place doesn’t do anything to anyone else, but this is a clear assault on the rights of citizens.
“It is outrageous that a fairly small, uber-right-wing, radicalized worldview is on the cusp of dominating our society and our politics and our social behavior.
“It is an outrage. And that is why I went to the rally.”
Ilana Schwartzman is the rabbi of Beth Haverim Shir Shalom, a Reform synagogue in Mahwah, and she’s the secretary of the Bergen County Board of Rabbis. She and members of her shul drove down to South Orange to get on the bus to the rally.
“Jewishly, this issue is much broader than any political party,” she said. “More people would come to this rally than to anything else, because it doesn’t matter whether you are a Democrat or a Republican or an independent. No matter what, it feels like an impingement on our religious freedom.”
She knew that it’s unlikely that a rally would affect the Supreme Court’s ultimate decision on the fate of Roe, but nonetheless it was important to her to go to the rally. “It is important to be together with as many of our brothers and sisters in DC as possible, she said. “I do go back and forth because the efficacy of marching is not what I would hope it would be, but it does make a difference for our voices to be heard together.”
The question of abortion isn’t “scientifically based,” she said. “This is not about the viability of a fetus. It’s really about the assertion of someone else’s faith tradition over other faith traditions. And declaring the primacy of someone else’s faith tradition is not what America is, and it’s not what Judaism believes.
“And I also see this move, unfortunately, as a step toward limiting women’s agency in general. So as a female rabbi, as someone who believes strongly in the rights of women, and of women in the public sphere, it is unconscionable to me that we let this happen without a fight. That is my Reform Judaism speaking — that women have a right to a life outside the home. That limiting women’s right to a life outside the home, in the public sphere, is not right.”
The climate in the country overall, even apart from the question of Roe v. Wade, is troubling now, Rabbi Schwartzman said. “One of the things that is so harrowing about this particular march is that those of us who are going have only been told where it would be the day before it happened, out of concern for our safety.
“That is an incredible statement. That is where this dialogue is.”
David Vaisberg is the senior rabbi at Temple B’nai Abraham in Livingston.
“I don’t know what the rally can accomplish, and I don’t know what the right process to fix what’s wrong is,” he said. “But this is deeply problematic for the American people, it is deeply problematic for women, and it is counter to Jewish teaching.
“Abortion is at times required by Jewish law. This is a necessary right. And in the Jewish tradition, we also believe that people must be offered all elements of healthcare. We must look out for members of society who do not have the resources that others have.
“We believe in praying with our feet,” Rabbi Vaisberg continued, quoting Rabbi Abraham Joshua Heschel, one of the mid-20th-century rabbis who marched with Dr. Martin Luther King Jr. in the fight for civil rights. “When something isn’t right, when someone’s rights are being violated, we have to speak up. We have to make clear that we will not stand idly by when people’s rights are being taken away.”
Rabbi Olitzky summed up what many participants felt on their ride back home.
“A few things stood out to me,” he said. “First, the diversity of speakers. I was moved by the number of clergy who spoke, saying that they have had abortions. This is part of an ongoing effort to destigmatize abortions by talking about it more — studies show that 25% of women have had an abortion.
“I also was moved by hearing from Heather Booth, who founded the Jane Collective in 1965, before Roe was law. The Jane Collective worked to provide safe abortions to women before it was legal.
“Finally, the rally emphasized the religious diversity of the Jewish community. Reform, Conservative, Orthodox, and Reconstructionist rabbis all spoke, stressing unified belief within the Jewish community about abortion rights and reproductive rights.”