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The Abortion Controversy: Jewish Religious Rights and Responsibilities

A variety of events seem to regularly re-ignite the debate about the legality of abortion; the rejected nomination of Henry Foster for Surgeon General and Jane Roe's change of position, among them. The irony of the public debate about abortion is that, from a Jewish perspective, it obscures so many of the moral and religious issues involved.

The terms that frame the political debate over abortion give rise to much of the confusion. "Pro-life" supposes that anyone who believes that there may be instances when abortion may be allowable, or even medically advisable, opposes the idea that life, or potential life, is sacred. At the same time, the term "pro-choice" is twisted by opponents to assume that a woman would choose abortion without seriously consulting a set of individual moral values as well as religious law.

Politically the issue is not advocacy of the correctness of abortion, but, rather, preservation of the freedom to consult and follow an individualcs personal moral code and religious tradition when making this difficult decision. Our society has been unable to determine a universal stance regarding the legality or morality of abortion, in large part because various religious communities view the question differently. These groups want their adherents to have the ability to turn to their own tradition for guidance, and not be bound by the civil law in such a personal decision.

Moreover, science, the "authority" to which we are accustomed to turn in the twentieth century to settle such difficult questions, does not provide sufficient answers on which to base a moral decision. It can inform us as to the biological processes of childbirth, but it cannot provide an absolute definition of the beginning of life.

Judaism has a great deal to say about the issue of abortion, and Jewish law provides both legal guidance and ethical insights. Affirming the religious nature of this issue, much of the mainstream Jewish community, including The United Synagogue of Conservative Judaism, has supported laws to maintain the legality and accessibility of abortion.

However, while it is imperative that our voices be heard on this issue to protect our own religious liberties, this position takes the risk of obscuring an important principle held by Conservative Judaism--abortion is not an appropriate form of birth control. In general, we believe that a woman's choice must be guided by principles of Jewish tradition and law, as interpreted by our rabbinic authorities. To that end, this packet seeks to inform our constituents about Conservative Judaism's understanding of abortion in the light of Jewish law and tradition, as well as the current political situation regarding abortion and the USCJ's position and efforts in this area.

The enclosed material was prepared by Jacob Blumenthal, a rabbinical student at the Jewish Theological Seminary of America and edited by Sarrae G. Crane. Special thanks to Ari Goldberg, Lois Goldrich, David Rosen and Rabbi Kenneth A. Stern for their helpful comments.

Judicial and Legislative Background on the Abortion Debate

Before 1972: States of the United States of America pass various laws permitting or restricting abortion.

1973: In Roe vs. Wade, the United States Supreme Court declares unconstitutional all state statutes regarding abortion but the least restrictive. The Court notes that induced early abortions have become safer than childbirth and holds that the word "person" in the United States Constitution "does not include the unborn." The Court defines, within each of the three stages of pregnancy, the reciprocal limits of state power and individual freedom: "(a) During the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) After the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c ) For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate and even proscribe abortion, except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

1976: The Hyde Amendment to the Health, Education and Welfare appropriations bill is passed by the U.S. Congress and bars use of federal funds for abortions "except where the life of the mother would be endangered if the fetus were brought to term."

1977: The U.S. Supreme Court rules that neither the Social Security Act nor the Constitution prevent a state from restricting the (federal- and state-financed) Medicaid program to "medically necessary" abortions. In a companion case, the Court holds that a city may refuse to allow elective abortions to be performed in a publicly financed city hospital. The Hyde Amendment is held constitutional by a divided Court.

1980: By a close vote, the U. S. Supreme Court rules that Congress or the states may refuse to pay for even "medically necessary" abortions sought by poor women, by upholding the 1976 Hyde Amendment.

1983: The U.S. Supreme Court finds that state-approved restrictions on abortion, including parental consent for abortions performed on minors, are unconstitutional.

1988: Canada's Supreme Court rules that a law restricting abortion is unconstitutional.

1989: In Webster v. Reproductive Health Services, the U.S. Supreme Court rules that states can limit access to abortion. Congress votes to weaken the Hyde Amendment of 1976 by authorizing Medicare payment for abortions for victims of rape and incest; President Bush vetoes the measure and Congress fails to override the President's veto.

1990: The U.S. Supreme Court rules in Hodgson v. Minnesota that a state may require a pregnant minor to inform both her parents before having an abortion.

1991: President Bush vetoes legislation which would allow abortion to be discussed in federally-funded medical programs.

1992: The U.S. Supreme Court expands the powers of the states to regulate abortion but affirms the "central holding" of Roe v. Wade.

(Adapted from The People's Chronology, Henry Holt and Company, Inc., 1994.

Jewish Legal Perspectives

Jewish law (halakhah) presents a fairly consistent view regarding abortion in cases where a mother's life is or is not in danger. However, when the danger to a mother's health may be present, but less easily defined, the issue is more complex. Here are some guiding principles in halakhic discussions of the issue:

Halakhah clearly permits, and even mandates, abortion in any case where there is danger to the mother's life, from conception until at least until the head of an infant emerges in childbirth.

A basic text for this stance is in the Mishnah: "If a woman has [life-threatening] difficulty in childbirth, one dismembers the embryo within her, limb by limb, because her life takes precedence over its life. However, once its head (or its "greater part") has emerged, it may not be touched, for we do not set aside one life for another" (Ohalot 7:6). Later commentators argue regarding the status of the child from the time the head emerges until the birth is complete (at which time it no longer poses a danger to the mother). However, most cases of therapeutic (life-saving) abortion are covered clearly and concisely by this Mishnah, whichposits that existing life takes precedence over potential life.

The Status of a Fetus

In the modern debate on abortion, many religious traditions view a fetus as equivalent to an existing human life, even from conception. While Judaism sees the fetus as valuable and sacred as potential life, the sources indicate that it is not equivalent to a person.

One source for understanding this attitude comes from the Torah in Exodus 21:22-23: "If two men are fighting and wound a pregnant woman so that the pregnancy is lost, but no `great harm' occurs, he will be fined as much as her husband assesses, and the matter will be placed before a court." Such a case is not considered murder. However, "If `great harm' does occur, it is a case of nefesh tahat nefesh, `life for life.' " In other words, the Torah draws an important distinction: causing a miscarriage of the fetus is a civil wrong resulting in monetary compensation (implying the fetus is not a person), while killing the mother is considered to be homicide.

On the other hand, some later commentators have interpreted Judaism's view of a fetus as representing an actual life, therefore, prohibiting abortion in all cases but those in which the mother's life is endangered by the pregnancy. For example, Maimonides understood this Mishnah to be based on the idea that the fetus is a "pursuer" of the mother's life. This would allow the fetus to be killed in an attempt to save the mother, as an act of "self defense." By this reasoning, the status of personhood is conveyed to the fetus. However, if it is not a "pursuer," i.e., it does not constitute a threat to the mother's life, we may not permit its destruction. Maimonides' view, however, is unique and did not gain general acceptance among Jewish legal authorities.

Finally, there are opinions that differentiate the "potentiality" of life, depending on how far along the pregnancy is. Several sources regard a fetus as a partial person after the first 40 days (before which some Talmudic sources regard it as " mere fluid" and are more permissive). However, after 40 days, if a spontaneous or induced abortion occurs, a woman is required to undergo the purification process identical to that which follows giving birth, implying that some aspect of "personhood" has been attained.

However, cases where abortion might be considered do not always fall into such clearly defined categories. What about cases where a test indicates the child may have a genetic disorder, such as Tay Sachs? Does a family's ability to economically support an additional child have any relevancy? If a pregnancy or additional child may result in psychological harm to the mother, is this comparable to physical harm? Is abortion following rape or incest allowable?

Individuals, and the rabbis they consult in attempting to deal with such situations, weigh all of the above attitudes, expressed in many additional source texts. In particular, while the sources are clear regarding abortion due to a physical threat to the mother's health, sources are divided regarding situations which cause psychological harm. Some sources tend to be lenient in such cases, especially early on in pregnancy. On the other hand, there is a strong tendency to be as restrictive as possible, lest lenience be seen as minimizing the seriousness of the act of abortion. In 1983, the Committee on Jewish Law and Standards of the Rabbinical Assembly arrived at the following summary position on abortion.

Conservative Movement Statement on the Permissibility of Abortion

Committee of Jewish Law and Standards, Adopted on November 21, 1983

Jewish tradition is sensitive to the sanctity of life, and does not permit abortion on demand. However, it sanctions abortion under some circumstances because it does not regard the fetus as an autonomous person. This is based partly on the Bible (Exodus 21:22-23), which prescribes monetary damages when a person injures a pregnant woman, causing a miscarriage. The Mishnah (Ohalot 7:6) explicitly indicates that one is to abort a fetus if the continuation of pregnancy might imperil the life of the mother. Later authorities have differed as to how far we might go in defining the peril to the mother in order to justify abortion. The Rabbinical Assembly Committee on Jewish Law and Standards takes the view that an abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective. The fetus is a life in the process of development, and the decision to abort should never be taken lightly. Before reaching her final decision, the mother should consult with the father, other members of her family, her physician, her spiritual leader and any other person who can help her in assessing the many grave legal and moral issues involved.

Some cases to consider:

  1. Jon and Sarah are in their 30's. They have been married for 10 years, but have no children. After trying for a long time, Sarah has finally become pregnant. After 2 months, the doctor says that she is bleeding slightly, and that the pregnancy could become a threat to Sarah's health. She recommends that Sarah have an abortion.
  2. Joan had been married to Lowell for two years. After several tries at counseling, they decided to separate, even though they recently learned that Joan is pregnant. Lowell is not interested in raising a child. Joan is concerned about being a single parent, both in terms of the impact on her child, and the financial difficulties. She is considering an abortion.
  3. Ellen and Mark have two healthy children, and Ellen, who is pregnant with their third child, has learned that the child she is carrying has Down Syndrome. They fear for the quality of life for their new baby, as well as the stresses such a child will place on the whole family. They are trying to decide whether to have an abortion.

From the foregoing, it would seem that Jewish law would permit an abortion in case #1 because of the health implications, and might prohibit it in case #2 because financial difficulties and social impact are insufficient grounds for abortion. Case #3 clearly falls into the "gray area" and would turn largely on whether one views psychological factors as sufficient or insufficient grounds for justifying an abortion. One caveat: The specifics of these and other situations should be discussed with your Rabbi.

United Synagogue Resolution on Abortion

Passed at the 1991 Biennial Convention

As the preceding information and the following resolution indicate clearly, Judaism does not provide a blanket pro-abortion stance. The United Synagogue of Conservative Judaism nevertheless supports legislation maintaining the legality and accessibility of abortion so that in those cases where our religious authorities determine that an abortion is warranted halakhically, obtaining that abortion will not be hindered by our civil law.

WHEREAS, Jewish tradition cherishes the sanctity of life, even the potential of life which a pregnant woman carries within her; and

WHEREAS, under certain unfortunate circumstances, such as when the life or health of the mother are in jeopardy, Judaism sanctions, even mandates, abortion, although Judaism does not condone or permit abortion for contraceptive purposes; and

WHEREAS, Judaism does not believe that personhood and human rights begin with conception (the premise that personhood begins with conception is founded on a religious position which is not identical with Jewish tradition); and

WHEREAS, under special circumstances, Judaism chooses and requires abortion as an act which affirms and protects the life, well being and health of the mother; and

WHEREAS, to deny a Jewish woman and her family the ability to obtain a safe, legal abortion when so mandated by Jewish tradition, is to deprive Jews of their fundamental right of religious freedom;

NOW, THEREFORE, BE IT RESOLVED that The United Synagogue of Conservative Judaism continues to affirm its strong opposition to any further weakening, limitation, or withdrawal of the 1973 Supreme Court decision of Roe v. Wade; and

BE IT FURTHER RESOLVED that The United Synagogue of Conservative Judaism, in light of the recent Supreme Court decision and the efforts of the U.S. government to limit the choices available to most Americans, must be diligent in the efforts to safeguard and preserve the full personal and religious freedom given to the American people; and

BE IT FURTHER RESOLVED that The United Synagogue of Conservative Judaism opposes any legislative attempt through constitutional amendments, the deprivation of Medicaid, family services and/or other current welfare services, to weaken the force of the United States Supreme Court's decision permitting choice; and

BE IT FURTHER RESOLVED that The United Synagogue of Conservative Judaism encourages the various provinces of Canada and the Canadian government to preserve the rights of all women to legal abortions.

Programming Ideas

  1. Hold a "teach-in" day, to include studying Jewish sources on abortion, speakers and activities on the current abortion debate, and information sessions on related issues such as teenage pregnancy, women's health issues, etc.
  2. Provide members of your congregation with information on how to volunteer in local women's health clinics.
  3. Sponsor letter-writing and e-mail campaigns to your local Senators and Representatives that support preserving a woman's right to follow the dictates of her religion in making decisions about abortion.
  4. For the most up-to-date information on this issue from a religious perspective, contact the Religious Coalition for Reproductive Choice (RCRC), 1025 Vermont Avenue NW, Suite 1130, Washington, D.C. 20005; telephone: 202-628-7700; fax: 202-628-7716. Consider forming a chapter of RCRC at your synagogue.

For Further Reading

The issue of abortion is complex and deserves thorough study of the sources. The following books and articles, which provided material for the information above, provide a thorough review of the various Jewish attitudes and sources on this issue:

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