Abortion Rights from a Halachic (Jewish Legal) Perspective Part I

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Halachic Perspective by Dalia Heller - Photo by Sonja Lippman

Alyx Bernstein, a jGirls+ Magazine alum, is now a Comparative Literature and Talmud and Rabbinics major at Barnard College and the Jewish Theological Seminary in New York City.

This interview was lightly edited for clarity.

DH: What does the Torah/Jewish text say about abortion?

Alyx Bernstein: So, the Torah says nothing about abortion. It’s just not mentioned. There are certain verses in the book of Nevi’im and Ketuvim—the prophets and the writing—that allude vaguely to some sort of idea of preconception. In Jeremiah, you have a very famous verse that says “from the womb, I made you a prophet,” and sometimes I think particularly for Christians, these verses are taken as evidence of an idea in the Bible that life begins preconception. Jews don’t rely on those verses particularly strongly as legal precedent. How literal that line is, is up for debate, and so I think relying on that as a precedent is a bit shaky, especially when you’re in a Jewish legal tradition that is much more focused on the Torah than on Nevi’im and Ketuvim.

What is Judaism’s attitude toward a person who aborts a fetus?

According to the rabbis—in the Mishnah and the Gemara—until the fetus is out of the woman’s body, its life is subordinate to the woman’s life. It’s considered a rodef (a “pursuer”) if it threatens her life. So, if there is a situation where the baby somehow threatens the woman’s life, or for some people who maybe take a more expansive view, in any way threatens her health (that might mean mental health or physical health), it would be considered permissible to abort the baby, provided it poses some sort of threat to the woman’s health. I would say that’s a more traditional view; people have interpreted this in more expansive and less expansive ways, because that’s how Jewish tradition works.

Are there any ritual customs associated with abortion in Judaism?

There is no formal ritual. I think this is seen as not necessarily something that we want to celebrate, but rather a regrettable thing that may have to happen. Whereas, if we’re having a ritual, it’s usually about something that we want to uplift and celebrate. That being said, we do have rituals surrounding childbirth, including births that don’t go to full term. Some people are not a huge fan of those rituals because they involve women potentially not touching their spouses or partners for a while because they’re related to menstrual separation rules, but we do have a ritual where postpartum, women can go to a mikvah and immerse in the mikvah, and have that experience of immersion and cleansing. And I think that to some extent, that is a really beautiful ritual, where you get that moment of cleansing.

Is there any history of abortion in Jewish modern/biblical history?

We do know of abortive processes being used in Jewish history. There are some people who theorize that there is a ritual in the Book of Numbers called the sotah ritual which was designed to induce an abortion—but that’s kind of conjecture. We don’t know enough about that ritual to say for certain. But, there is a theory out there that drinking a “potion” would induce an abortion in a woman who’d had an extramarital affair. And that abortion would have been evidence of the affair because without the abortion, the affair would have produced a baby. It’s a compelling theory, but it is a theory that we can’t prove for certain.

How do different interpretations of religious views (Jewish and non-Jewish) show up in the debate over abortion? How do these differences impact policy?

Look, abortion is always going to be a religiously charged debate because science is very slippery on what constitutes human life. You know, some people will say that a fetus is just a clump of cells, and some people will say that clump of cells is still life, and that’s not an answer that science is going to give you. And so there’s not really many places to turn besides religion for an answer as to when life begins. If we’re looking for different frameworks for religious sources, Judaism has something to say, Christianity has a lot to say, etc. Judaism also has a lot of diversity. There is not one view on what type of abortions are permissible in Christianity or in Judaism. I’m not enough of an expert on Islam to offer any sort of knowledgeable perspective, but I imagine there are a variety of perspectives in Islam as well.

I think when we’re looking at abortion, there are two options. You can, of course, ground it in a religious perspective. But for me, I think what’s always going to come first, above religion, is that the government should not be legislating what women have the right to do and not do with their bodies. Judaism has something to say on that, but I don’t want Judaism dictating what my government does. I don’t want Christianity dictating what my government does. I want ethics, morals, and policy dictating what my government does. And while there’s a lot of overlap between Judaism and Christianity and morality, I don’t want the government legislating what is the “right” morality. If we’re looking for a framework for abortion, I think that a woman’s right to choose will always trump what religion has to say on the matter when it comes to legislation.

If we’re looking for responses to a Christian right that says that religious people want to eliminate a woman’s right to choose, I think it’s important to remember that religious traditions are multivocal and have something to say that isn’t just, you know, “abortion is the devil incarnate.” And so, in responding specifically to conservative Christian claims, I think that Jews and progressive Christians have a voice to offer in saying, “actually, this is not necessarily our tradition, and we have something to say in dissent to that.”

Can you talk about differences within Jewish beliefs about abortion?

There are certainly people who will say that abortion is permissible in a case where the pregnancy really threatens a woman’s life, but in no other cases. And there are in particular Orthodox and other right-wing Jews who are saying, “I mostly agree with right-wing Christians on this issue.” That’s a perspective I’ve seen. And there are other Jews who say, “I know what Judaism has to say. I don’t care, I believe in a woman’s right to choose,” which is mostly where I fall. Not that I don’t care what Judaism has to say, but I don’t think it should have a bearing on the laws of this country. And there are people who fall in between that, who support a woman’s right to choose, but not unlimitedly. As in most things, Jews are not one voice, and when we’re looking at the politics of abortion, it’s important to acknowledge that. But you can’t honestly say that Judaism has a blanket ban on abortions in all cases. I think that would be profoundly intellectually dishonest and ignorant of how Talmudic law understands death and murder. Life is not always sacred in Jewish tradition. There are times when you must take a life. An abortion where the pregnancy threatens the mother’s life would be one of those cases. Another similar case is if someone is about to stab you, you can stab them back. It’s OK. And that’s kind of the halachic paradigm into which abortion falls.

Can you speak more about whether Judaism provides unlimited rights to abortion or if there are exceptions?

It depends who you ask, but the most traditional view would be that outside of a directly life-threatening situation, abortions would not be acceptable. Now, a lot of rabbis would say that life-threatening is not necessarily the standard we should go to, and that a threat to health might be a better standard. And then, what exactly “health” means can be interpreted differently. But this is one of those decisions that often gets played out not as a matter of policy, but as an interaction between one Jewish religious authority and one person. This often happens on a case-by-case basis in real life. People are often working with rabbis and other Jewish authorities to decide what is the right path for them given their situation.

Whatever a clergyperson may believe, do you think that it is ever appropriate to apply your own moral/religious code or use your power in the community to restrict a right such as abortion? Alternatively, how do you feel about using these powers to defend abortion?

I think part of the job of clergy is not to tell people what to do, but rather to advise people. And I think that might be a little bit more of a liberal, Jewish thing, where most people are not observant and are engaging with clergy as advisers. Even in a system where obligation is more the norm—in Orthodox and other more halachic systems of Judaism—clergy’s job is only ever to act as an adviser. So when you’re a clergy member and you’re offering pastoral care to someone who’s making a decision, if you are prescribing to them what to do in that situation, that’s bad pastoral care. If you are giving them solutions and a framework that they can work with to make a really hard decision for themselves, that’s what good pastoral care often looks like. If clergy are going to people in hospitals and telling them that they can’t have an abortion, that’s not ethical. That’s not good clergy leadership. If they are explaining what Jewish tradition says and what wisdom Jewish tradition has to offer, that’s a very different framework.

I believe in a legal system where people are empowered to make choices, and I believe in a religious legal system where people are obligated. Those two systems should never overlap. What I believe I am obligated to do by my religious legal tradition is not the same as what I am obligated to do by my secular legal tradition. Those should not be the same. If clergy are standing up in defense of a secular value that might not 100 percent comport with what they believe religiously, I think that’s totally OK, because I don’t think a secular society should be run by religious law. What makes a secular society and a pluralist society thrive is its ability to accommodate different religious systems. So legislating religious morality in addition to potentially being bad morality will inevitably restrict different religions because religions have different moral systems. So I don’t think it’s contradictory for clergy members to say that “even though Judaism doesn’t give permission to have an abortion in every single case, I still support a woman’s right to choose,” because we as Jews are not trying to be ethical supremacists. As individual Jews in 21st century America, it’s not our job to prescribe what everyone does, but rather to talk to Jews about what they should do. So for a Jewish organization to go out and not support a woman’s right to choose, I don’t think that’s moral or ethical, I think that’s just cowardly, and Jews should stand up for the right to choose, even if Jewish tradition doesn’t 100 percent support the right to choose.

What do you think policymakers can do to best accommodate religious diversity?

There’s a brilliant book called The Impossibility of Religious Freedom by Winnifred Fallers Sullivan, where basically a religious studies scholar investigates a case in Florida about religious freedom playing out in a cemetery. This is a cemetery for Jews and Catholics, and I think a few Protestants as well. Basically, without getting too much into the case, what Sullivan concludes is that when it’s the government’s job to legislate what religion is, that is a problem, because they are not qualified to do that. I really think that religious freedom as a value is not actually a great thing, because it relies on court systems to determine what is and isn’t religion and what is a sincere religious belief, and in America that often means that Christians get to have sincere religious beliefs (particularly white Anglo-Saxon Protestants), and Catholics, Jews, Muslims, and Native Americans in particular get screwed because their religions aren’t “true” religions. What religious studies as a field has done, particularly in the last 30 years, is push the idea that religion has a lot of different manifestations. What Sullivan ends up proposing in her book is that a more religiously pluralistic system where the government takes a step back and takes its hand off religion is a good system. I don’t think there’s one particularly brilliant way to manage religion. You know, the Ottomans had a system where religions got to decide what they were doing for their own communities. That’s actually the current system in Israel (for complicated reasons), where religious communities get to rule themselves, and that has its own issues. And then you have the British system, where there is an official state religion, but other religions have a lot of leeway. There are a lot of different systems. None of them are perfect. But I think what the essence of it is that if the government is making rules that privilege one religion, then the government needs to take a step back, because that’s just an overreach. With abortion, when you’re imposing rules that come from a specific sect of Christianity onto 70 percent of the country that doesn’t support restricting or banning abortion, you are imposing the tyrannical will of a minority on a majority because of so-called religious beliefs. I think that people should have the right to create their own religious communities and practice their own ethics within those communities, and that’s kind of how I think a pluralist society should function.

Anything else you want to add?

I just want to plug Rabbis for Repro and the National Council of Jewish Women, because I think they’re pretty cool organizations.

For more information about abortion and reproductive health, check out our resources page.
This article is one of four published in our Pro-Choice: An Interview Series. See the introduction and all four interviews here.
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