Abortion Rights From a Halachic (Jewish Legal) Perspective Part II

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Halachic Perspective Part 2 by Jemima Schoen - Photo by Jade Lowe

Maharat Ruth Balinsky Friedman is a member of the inaugural class of Yeshivat Maharat, which is the first institution to ordain Orthodox women as spiritual leaders and halachic (legal) authorities. She serves as Maharat at Ohev Sholom—The National Synagogue in Washington, D.C.

This interview was lightly edited for clarity.

Jemima Schoen: First, how do we view a fetus? Do we view it as a human entity? Or part of the person carrying it?

Maharat Ruth Balinsky Friedman: There’s a halachic debate about that: Is the fetus part of the mother, or is it its own being? This is grounded in the case in Exodus where if a pregnant woman is near a fight and then gets struck and miscarries, the attacker—the perpetrator—has to pay, which is different than how we would consider it if he had actually killed a human being. And so that’s sort of the first way.

The first step in analyzing any halachic consideration is just the very present realization: just the stated fact in Exodus that clearly, a loss of pregnancy does not equate the loss of a human life. The question, I think, is at the same time, we know that this is something that is alive, and will grow into a human being. And so, like I said, there are different ways of framing it. If it’s part of the mother, then it’s an injury. If it’s not part of the mother, then perhaps this could be a separate human life.

There is also a very important Mishnah that states that if a pregnant woman is in labor, and there is a threat to her life, then they say that you can reach up into her and cut up the baby and basically do whatever you have to do in order to extract it in order to save her life. But, the caveat being, that if the majority of the baby’s body has emerged from her already, then we consider it like it’s alive, and you sort of have to let nature play out and take its course. The Rambam says that [majority] means the head is out.

That’s a very complicated statement. Because it’s saying that the definition of life isn’t the potential for life. It’s that this one baby has physically entered the world and physically exited the mother’s body. That’s really when it becomes a human being. And until that point, the mother is a confirmed human being, and her life takes precedence. So, there’s sort of the question, halachically, and getting down to all the finite detail.

I’m also always interested in the sort of more psychological component, like the guiding principles behind what they’re saying, and my sense of what and how Chazal [early Jewish sages] thought about it is that until we can absolutely confirm that this baby is alive, that this is a healthy baby—because you can tell once the head comes out (obviously you can’t know everything)—but until this baby/being really exists in the world, independent of its mother, it’s just not on the same level as a pre-existing human life. Now, it doesn’t mean it’s therefore nothing, of course, but that it’s some kind of in-between status.

What is Judaism’s attitude toward a person who aborts a fetus? Is it something to be ashamed of, or is it something that is understandable, that they would be supported by Jewish law and Jewish beliefs?

I think that’s probably going to differ based on community. There are certainly many situations in which, halachically without question, it is perfectly acceptable—if not required—to terminate. The most extreme example would be if the mother’s life is at risk, then, absolutely. And I’ve known people—tragically—where this has happened, and I can’t speak to the emotional experience of shame, or feeling like you don’t talk about it. I know that rabbis certainly pasken [give a halachic ruling on] these types of questions.

There are also other questions of non-viability of the fetus. The Forward, a few years ago, back when New York was considering expanding abortion law—which it did—and to be more inclusive, published a series of anonymous stories, by anonymous women; one of them is a good friend of mine, and [she aborted] in a situation of non-viability, and that was totally something that a prominent Orthodox rabbi paskened for her that it was a very acceptable choice. So, I don’t know. I would say in situations where, God forbid, God forbid, there’s a case of incest or rape or an unintended pregnancy, I would imagine those are much more covered up, but also that they definitely happened.

And how does mental health play into Judaism’s attitude toward an abortion because just personally, I’ve heard that some people say that mental health is a factor in allowing an abortion if childbirth and pregnancy are an extreme risk to mental health. What would you say about that?

So, what happens is, once we say that the risk, the threat to the mother, is reason enough to terminate, the question is, how expansive is the definition of threat to the mother? I mean, I’ve heard one horrible, horrible story where a woman was diagnosed with breast cancer when she was five weeks pregnant, and it was urgent that she had to terminate the pregnancy so that she could start chemotherapy. So that’s a pretty straightforward example of life of the mother. But what happens if, as you’re saying, the mother has a history of severe depression, if the mother is struggling with mental health and perhaps even suicidal? What about poverty? How can you expand the definition of mental health?

I would also argue, frankly, that once you realize that these issues are complex, you realize that the notion of abortion-on-demand is kind of a myth. And I don’t think many abortions that are had are made lightly. You realize there’s usually some something going on that made her even get an abortion in the first place.

Would you say fighting for abortion access ties into Jewish values, and if so, how?

Yeah, I think absolutely. I think first of all, because abortion access is a basic component of religious freedom. I mean, it’s ironic because the Christian right says it’s the opposite. But for us [Jews], it’s actually pretty insane to think about what’s happening and the ways that overturning Roe v. Wade could severely restrict a woman’s ability to practice halacha, or at least follow halachic guidance.

But also, I think that anyone who thinks that overturning Roe v. Wade or preventing abortion access is going to save lives is just a bit naive of what this is actually going to do. This is going to get a lot of women killed, either from botched abortions on the side, or from having to carry pregnancies that are a threat to their life that they don’t want, or what have you. There is so much potential for real, real danger here that I think that you could definitely frame it as a religious issue.

And I think another important point is one that Rabbi Jeremy Wieder of Yeshiva University has been very vocal about: you should really be very careful about trying to have religion be legislated in the public sphere. The government staying out of religion provides us enormous benefits. And we should not start…making messes and using religion to restrict things like access and human rights in this country or anywhere.

And are there any ritual customs associated with abortion in Judaism?

Well, there’s mayim chayim—the mitzvah has a ceremony to do for mikvah immersion after an abortion—but that’s been written in the past 15 years. Did they have medicinal things [before that] you would take to try to induce cramping, and all of that? I couldn’t tell you.

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

I am very, very wary of actual religious leaders or those with conviction, trying to legislate anything in a secular government. If for some reason—and I don’t think it’s happening—but let’s say we reach some crazy extreme point where we were allowing women to voluntarily terminate fetuses at 38 weeks without any medical threats, this would be a very, very serious concern. I mean, I know I would have a hard time agreeing to that. And I can’t see that (situation) happening—it’s an extreme situation, sort of a so-called extreme example—maybe I would struggle with that. But I still feel like, like I said, those are essential protections for our own humanity and for human rights for women everywhere. I think what’s happening is very, very dangerous. It is upon us to speak out.

I think one of the things that has frustrated me and angered me these entire past few years is the way that some Orthodox leaders have aligned themselves with the Christian belief around abortion, which I find totally unfathomable, incomprehensible. I can’t understand how anyone that’s seen a modicum of intellectual honesty could say that.

But, that aside, I believe it’s for the rest of us to be enthusiastic and say, “No, that’s actually wrong, and that’s not how Judaism views abortion at all. And you’re just speaking out of turn.” And that’s one of the reasons that I’ve been speaking about it more on Facebook, and I was on a panel about it last week, because it’s just so nerve-wracking. And I think that the rest of us do have an obligation to say, “No, this is really not how it actually works.” Which is yet another reason I’m very grateful for Rabbi Wieder and the way that he does that.

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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