The Jewish case for abortion: How the ban violates religious liberty

ADVERTISEMENT

The Jewish case for abortion: How overturning Roe v. Wade threatens religious liberty

It may be a surprise to those outside the Jewish community, but, for thousands of years, Judaism — which views life as beginning at birth rather than at conception — has held that access to abortion is a religious obligation.

The essential notion in Judaism is that the existing life of the pregnant person must always take precedence over the potential life of the fetus. That is why many rabbis insist that there are times when abortion is not just permitted in Judaism, but religiously required according to Jewish law. And “life” is understood by Jewish tradition as referring not simply to physical life, but to the holistic experience of a human being.

After news of the likely overturning of Roe v. Wade emerged in early May with the leaked draft of Dobbs v. Jackson Women’s Health Organization, numerous rabbis and other thought leaders from a wide range of Jewish organizations made the case that laws limiting access to abortion services were a fundamental abridgment of the religious liberty of American Jews.

On May 17, representatives from more than 120 different American Jewish institutions came together for the Jewish Rally for Abortion Justice in Washington, D.C., organized by the National Council of Jewish Women. Among the sponsoring organizations were the national arms of the Reform and Conservative movements, the two largest movements in American Judaism, which together represent a substantial majority of American Jews. In participating, each of these 120 groups signed on to a statement declaring that “abortion access is a Jewish value.”

ADVERTISEMENT

A question of religious freedom

For generations of American Jews, the freedom to be at home in this nation without having to pick between their “Jewishness” and their “Americanness” has been central to community identity. Rabbi Jen Lader of Temple Israel in West Bloomfield, Michigan, told me: “So many of our synagogues have placed American flags next to our arks, the holiest places in our sanctuaries, as proud and constant reminders that we live in a country founded on the freedom to live as Jews without fear.”

Every religious minority community relies on American religious liberty; for Jews, rulings like Dobbs and Monday’s decision in Kennedy v. Bremerton School District — which allows for public Christian prayer as a part of school athletics — raise a real fear that religious liberty for any faith other than conservative Christianity is slipping away.

Americans are used to thinking of religious liberty primarily through the lens of the First Amendment and its guarantees in the Constitution. But there are religious liberty provisions in many state constitutions and other state laws that significantly expand these rights beyond the First Amendment. Since 1997, when the Supreme Court held that the federal Religious Freedom Restoration Act (RFRA) was not applicable to the states, 23 states have passed statewide versions of that legislation, which mandates that the government use only the “least restrictive means of furthering a compelling government interest” when balancing against an individual’s rights to religious liberty.

Among those states is Florida, where, on June 10, Congregation L’Dor Va-Dor in Boynton Beach filed a suit challenging the state’s new abortion restrictions on religious liberty grounds. Florida, like many red states, has both an expanded religious liberty provision in its state constitution and a statewide RFRA. In its wide-ranging complaint, Congregation L’Dor Va-Dor argues that Florida’s House Bill 5, which effectively outlaws abortion after 15 weeks of pregnancy, is a violation of the state constitution’s guarantee of religious freedom and an imposition of one particular religious view on the entire population of the state.

That lawsuit, while unlikely to succeed, is sure to be only the beginning of a much longer conversation — and legal process — around the boundaries and limitations of religious liberty, particularly for minority religions in the United States. American Jews and their religious institutions are planning and preparing to be on the front lines of these legal battles.

ADVERTISEMENT

Abortion in Jewish history

Judaism has viewed abortion as morally acceptable in many situations — and religiously required in others — for thousands of years. Going back to the earliest Jewish texts, the Torah (or Five Books of Moses), we see in Exodus 21:22-23 that “If people are fighting and hit a pregnant woman and she gives birth prematurely, but there is no serious injury, the offender must be fined. … But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth.” The juxtaposition between a financial penalty for causing the loss of a pregnancy and capital punishment for causing the pregnant person to die has for millennia been understood by Jewish interpretive tradition as an explicit statement that a fetus is not a human life.

The Talmud — a sprawling set of sacred texts for Jews similar in length and breadth to an Encyclopaedia Britannica — is where Jewish views on abortion were codified 1,500 years ago into a normative legal tradition. Rabbi Yehudah HaNasi, one of the foremost rabbis of the Mishna (the central part of the Talmud), established 1,800 years ago that as far as Judaism is concerned, “a fetus is considered a part of the pregnant person’s body … much as their thigh is a part of their body.”

We see this notion — that a fetus is not an independent life, but a part of the pregnant person’s body — throughout other, seemingly unrelated parts of Jewish law as well. In a section of the Mishna (circa 200 C.E.) dealing with the death penalty, there is even a ruling that states “if a pregnant person is set to be executed, you don’t delay the execution unless they are in labor” (Mishna Arikhin 1:4). While this is mostly a theoretical question for the ancient rabbis, who were broadly opposed to the death penalty in application and who often lacked the political power to enforce criminal punishments, it does make clear that even across wide-ranging applications of Jewish legal thinking, a fetus is not viewed as a full human life but as potential life.

The Mishna explicitly — and graphically — makes this clear in Oholot 7:6, where it commands that “a person who is having trouble giving birth, they abort the fetus and even take it out limb by limb if they must, because existing life always comes before potential life. If most of the child has come out already they do not touch it, for we do not push off one life for another.”

Almost 1,000 years ago, in the Golden Age of Muslim Spain, the great Jewish philosopher and legal thinker Maimonides (or Rambam, as he is also known), coalesced these ideas into what has become one of the central legal categories for understanding abortion in Judaism: the “rodef” or “pursuer.”

Rodef is a legal category in Jewish thought for someone or something that is on the way to kill a human being. Jewish law obligates every individual to stop a rodef at any cost — up to and including taking their life. Thus, when Maimonides classified a pregnancy that is dangerous to a pregnant person’s future as a rodef, he established clearly for Jews of the past 1,000 years that there are times when abortion is the only acceptable choice.

Different movements, different interpretations

In American Judaism today, there is broad consensus that blanket abortion bans are a violation of the religious liberty of every Jew who can become pregnant. But between the different movements, there is a significant range of views on when an abortion is considered to be morally and halachically (Jewish legally) acceptable, when it is required and when it is forbidden.

Reform Judaism, the largest movement in American Judaism at 37 percent of the Jewish population, has long held that in the context of potential risk to the life of a pregnant person, that person’s livelihood, aspirations and future are included as parts of their life. Rabbi Sara Zober of Temple Sinai in Reno, Nevada, said in an interview that for Reform Judaism, “mental health is a part of health. Which means that when we’re talking about abortion and pregnancy, [the pregnant person’s] life has to come before the fetus’ life. And not just her physical life, but the fullness of her life. Her future, her mental health … her whole lived experience.”

While the Conservative movement (17 percent of American Jews) often differs significantly from Reform Judaism when it comes to ritual practice, on issues of abortion the two movements are closely aligned. The Conservative movement made this clear in a statement put out by its rabbinical arm after the decision striking down Roe v. Wade, saying the movement “is outraged by the decision of the U.S. Supreme Court to end the constitutional right to abortion and deny access to lifesaving medical procedures for millions of individuals in the U.S., in what will be regarded as one of the most extreme instances of governmental overreach in our lifetime.”

For Orthodox Jews, the most conservative (and the smallest, at 9 percent) of the mainstream movements, the discourse around abortion is quite different. But even in the Orthodox community, blanket abortion bans are understood as core violations of Jewish religious liberty. Maharat Rori Picker Neiss, an Orthodox spiritual leader in St. Louis, told me, “Just about every Orthodox rabbi has had to counsel someone through an abortion, [but] it is important to understand that in the Orthodox community people don’t think of abortion as a political stance, but instead as something to be dealt with privately, on a case-by-case basis … which is why these laws which ban access to abortion are a violation of our religious liberty and an infringement on our obligation to counsel people.”


ADVERTISEMENT

The future of abortion access for Americans of all backgrounds is increasingly unclear. But for American Jews, the stakes go far beyond reproductive healthcare. Many of us believe that our ability to practice our faith free from governmental interference is now very much in question. America is at an inflection point: Will ours be a government where one particular Christian view of religion, religious liberty and “when life begins” hold sway over the rest of us, or will our courts affirm the right for religious minorities to practice our faith free from governmental imposition? In light of the decisions in Dobbs and Kennedy, Jewish Americans fear for the future of our religious community, which has for so long believed so passionately in the dream of America.

Thanks to Lillian Barkley for copy editing this article.

  • Daniel Bogard
    Daniel Bogard

    Special Contributor

    Daniel Bogard is a rabbi at Central Reform Congregation in St. Louis, one of the co-founders of Camp Indigo Point, a senior rabbinic fellow of the Shalom Hartman Institute and an adjunct professor of Jewish thought at Eden Seminary. He and his spouse Rabbi Karen Bogard are the proud parents of three amazing children.