KEDOSHIM 5782

The Torah on Roe v Wade

There are so many of issues dividing our country these days. And this week, in a stunning breach of Supreme Court confidentiality and secrecy, Politico published a draft of a majority opinion written by Justice Samuel Alito that would strike down the Supreme Courts’ decision on abortion—Roe vs. Wade. This has rattled so many and stirred up what most had considered to be “settled law.”

It’s a moral issue, a religious issue that so many avoid speaking about because of strong feelings on both sides. It’s Mother’s Day weekend and somehow, I see that as related. And so, I will try to muster up the courage and discuss the issue—not from a political perspective—but strictly from the perspective of Jewish law.

Any discussion on abortion must begin with the legal status of the fetus. According to Jewish law, it takes 40 days from the time of conception until we can call the fertilized egg a fetus. Until then, the Talmud (Mishnah, Yevamot) refers to the fertilized egg as mayim b’alma (plain water). Therefore, Jewish law is far more lenient in permitting an abortion prior to that time.

After 40 days the fetus becomes an ubar yerech imo (a fetus that is a limb of the mother). That means according to the Torah (Ex. 21:22), if one was responsible for an accident that caused the death of the fetus, it is not murder. One should be punished as if one was responsible for the mother losing an arm or a leg. And to this must be added that Jewish law does not permit one to do damage to themselves!

So how may abortion ever be permissible? Let me read you from the Talmud (Mishnah Oholot 7:6): 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. This is the principle in Jewish law (Sanhedrin 73a) known as Rodef (a pursuer): One in pursuit of another to kill him may be killed by an onlooker to save the victim. And since the fetus is not yet considered a human being, the life of the mother takes precedence.  

The whole discussion really comes down to what constitutes a threat to the life of the mother, for the life of the mother always takes precedence. Certainly, if a doctor declares that the fetus threatens the physical life of the mother, there is no question that abortion is called for. What about cases of rape or incest or if the mother is a child or not mentally stable or suicidal? We can see the possibility of grey areas here. But in general, most authorities permitted such abortions—certainly before 40 days, and even after.  

So, should abortion be legally permitted or prohibited? This week The Orthodox Union issued the following statement:

         The Orthodox Union is unable to either mourn or celebrate the news reports of the U.S. Supreme Court’s likely overturning of Roe v Wade. We cannot support absolute bans on abortion—at any time point in a pregnancy—that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that permits “abortion on demand”—at any time point in a pregnancy—and does not confine abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.

  Not much help there. In reality, each side has some validity, but you don’t hear debates because everyone is so firm in their position, they don’t want to talk about it. I think if those who call themselves “pro-life” and those who call themselves “pro-choice” would just sit down and talk, they just might find that they, in fact, do have some common ground.

Let me explain. I consider myself “pro-life.” I believe that the embryo in the mother’s womb is not just an appendix that can be taken out and thrown away. If it’s not yet life, surely it’s potential life. Abortion should not be a casual or callous act.

But I’m also “pro-choice!” Because if the health of the mother—physical or mental—is in danger…Jewish law directs us that the safety of the mother comes 1^st…for she is a person, and the fetus is not yet a person.

However—and here’s the crucial point—I personally don’t believe it’s the business of the government to decide, so I guess I’m also “pro-choice.” I think most Americans—if they heard an intelligent debate on this—might discover that they, too, are both “pro-life” and “pro-choice.”

Let me share with you a powerful story I once shared, told to me by my mentor, Rabbi Benjamin Blech. It focuses on the amazing gift of life and how serious this issue of abortion is. When Menachem Begin was Prime Minister, Israel was going through difficult economic times. People were struggling just to put food on the table and stay alive. There was a member of the Keneset, Shmuel Tamir, who was upset and particularly bothered that women were getting pregnant and couldn’t afford to raise their children. The Rabbis were adamant that abortion was forbidden.

Tamir went to Rav Arye Levin—the renowned Tzadik of Jerusalem—not so much to ask a question as much as to give the rabbi a piece of his mind. He began with the words I’ve heard many times: With all due respect. You rabbis don’t understand and aren’t sensitive to the problems people have. With all the things going on now we just can’t keep up with, so many new children being born. If a woman comes to you and says she can’t handle it, you should find a way to permit her to have an abortion.

         Rav Levin told him: It is fascinating that you come to me with this request. Many years ago, a young couple came to me with a similar request. They already had a small child. Both mother and father were still in school and the woman became pregnant and they didn’t know how they could manage. They came to ask me if there was any legal way to terminate the pregnancy. I told them, “I feel your pain, but I must tell you ‘no.’…You have to have faith in Gd. Gd has many children and He has promised that he would support them. You have to trust in Gd that there will be a way. But the…most important reason is that child within you already has a neshama (a soul) and that soul was created for a purpose. This means that this soul was meant to live and accomplish something. If you terminate that pregnancy you do not know what you will do to the mission that this neshama was supposed to accomplish.”

         Shmuel Tamir asked, “Well did they listen to you?”

         “Yes they listened to me. They had the child.”

         Tamir sarcastically said, “Did that child fulfill his mission?”

         Rav Levin then said, “Only you can answer that. That couple who came to ask if they could have an abortion were your parents and you were the child that was subsequently born that might have been aborted!!!”

My friends, no one takes having an abortion casually. It’s a life-changing decision. If the Supreme Court does in fact strikes down Roe v. Wade as it appears ready to do—leaving it up to individual states to decide the legal status of abortions—I pray that Gd help the states to craft wisely their legislation. Amen!