Wednesday, May 22, 2019

New York State’s passing a recent abortion law inspired a flurry of statements by Jewish organizations expressing halacha’s opposition. The hubbub suggests Jewish tradition has a clear view of how Jews should react to secular abortion laws, when such is not the case.

Without pretending to be exhaustive or comprehensive, we thought of seven factors—none with immediately obvious or unequivocal answers—to consider before reaching a halachically reasonable evaluation of any secular law on abortion. The permutations of possible views should lead to more nuance and less shrillness than we have seen so far. We aim to contribute some such careful deliberation by laying out the questions which might help parse the problem.

First, Jewish law is not clear or unequivocal as to whether a fetus is ever a person and whether abortion could ever be murder. Second, regardless of whether they view abortion as possible murder or violation of some lesser prohibition, authorities adopt various views of when the prohibition comes into play: at conception, forty days later, at fetal viability (23-24 weeks) or some other time.

Third, many of those discussions assumed an indigenous Jewish law context (or a Jewish nation, such as Israel).  In a secular nation such as the United States, we need to factor in Jewish tradition’s dispute as to whether the rules around abortion for gentiles are stricter or more liberal.

Fourth, were we to be sure a specific law allowed abortions in indisputable violations of Jewish law, whether the laws for Jews or for gentiles (called Noahide law), authorities still disagree as to Jews’ obligation to lobby non-Jews to act as God wants. Some think Jews should strive to build a society in which non-Jews fulfill their obligations and Jews theirs, either because such lobbying makes Jews “a light onto the nations” or because the ills of society reach the Jewish community as well.  Others see such a path as filled with risks and did not detect such an obligation in the sources of tradition.

Fifth, some think Jews are better off promoting secular laws which maximize personal choice and freedom, to be most sure we will be allowed to follow our religious dictates. People choosing to sin, in this calculus, is much less problematic that people being forced to sin.

Sixth, even those who prefer personal choice might view abortion differently, since the fetus’ rights could interfere with the libertarian preference for the rights of the woman carrying the baby.

Finally, there has always been a strain of Jewish thought which argues for diminished involvement in these kinds of secular disputes, and which thinks we should only protest when we are forced to conduct ourselves contrary to Jewish Law.

The Biblical observation of Bilam, that Jews are a nation which dwells alone, speaks to us to highlight this dilemma. During the long years of exile when we cannot live by this mandate, Jews have needed diverse models of cooperation and involvement with societies which host us. On the continuum from complete disengagement to complete involvement, many valid and reasonable options exist, as appropriate to the situation at hand. Indeed, reasonable people —including us—sometimes disagree on which of these models best works to any particular case.

We agree however that abortion is a particularly hard case and urge people to invest in realizing how important it is to take each situation on its merits, to think about what Jewish tradition ideally wants in a secular society, decide whether this is an issue in which participation is important, and then choose the appropriate strategy.

Orthodox reactions to the recent abortion law seem to both of us to have failed to do this. The many pronouncements rarely mention that ninety-eight percent of U.S. abortions happen before twenty weeks (and thus would be acceptable to all opinions which think abortion only becomes a problem at viability), eighty-five percent or more happen before the end of the first trimester, and a quarter before six weeks, all important markers in Jewish law’s evaluation of the status of the fetus and the concerns an abortion would raise. Instead “Jewish law” is presented as monolithic and always completely opposed to abortion.

Of course, we recognize an overall Jewish opposition to casual abortion — we do need to care about fetuses, recognize their humanity (potential or realized) and hope for as few unneeded abortions as possible. But we also recognize that the real-world complications which drive the decision to have an abortion can range from maternal physical and mental health to terrible fetal illness, or impending fetal death to a host of other factors which halachists themselves would respect as quite possibly justifying an abortion. 

Complicating the question further, our tradition sometimes even mandates an abortion, and we would never want to live in a society which prohibits that which Jewish law might require a courtesy a pluralistic society should give to other faiths as well. 

Not to speak of the careful weighing we believe all Jews should do before wading into the American political minefield on abortion, with all its nuances and complexities.

Let us be clear: The undesirable is not always prohibited as a matter of Jewish law; that which is prohibited to Jews is not always prohibited to Gentiles; and even that which is prohibited to everyone need not always be subject to coercive secular legislation, from the Jewish perspective. 

We need to move back to a more sustainable pluralistic society, Jewish and secular, where we account for our own concerns, advocate for the world we think best, while we also work to meet as many of others’ concerns as possible, as we hope others will do for us.

Jews and Judaism will be better off if we do.

By Rabbi Michael J. Broyde & Gidon R. Rothstein

Join Our List
and receive information on community events, announcements, exclusive sales and our issue emails.