May 13, 2022
The following is a copy of my sermon from last Shabbat. It addresses the issue of the leaked draft decision of Justice Samuel Alito that would overturn Roe vs. Wade. I had mentioned in my piece last Friday that I would follow up with these remarks. I try to address the subject through a Jewish lens, both in terms of Jewish law as well as the potential impact on the Jewish Community. I realize that this is a somewhat fraught subject; I welcome your feedback.
One of my earliest Israel-related memories is of attending a celebration – I have to assume it was in Toronto – for Israel’s 25th anniversary of independence. For a 7-year-old boy, reared on a love of, and connection to Israel, it was truly thrilling: music, dancing, art, food, jubilation at this milestone achievement. It was only months before the Yom Kippur War, and the country, and international Jewry, were still riding the wave of the remarkable victory of the Six-Day war in 1967. The logo from that year is what stands out most in my mind, for some reason – a simple stick-figure menorah, with the number furled out of a single ribbon at the base, the two and the five being mirrors of one another. Blue and white. It’s emblazoned forever in my mind, an iconic image of my youth.
It’s hard to believe that we just passed the 74th anniversary of the State this past week, with the milestone of 75 only a year away. Although from time to time I comment about policies or actions I find troublesome, I’m extraordinarily grateful for her existence.
I raise this now, not only because of the focus on Israel last week, but because of the news that came out of the Supreme Court earlier this week – news that has shaken the country. I am referring, of course, to the leaked draft of an opinion written by Justice Samuel Alito and supported by four other conservative justices, that would overturn Roe vs. Wade, the 49-year-old landmark decision that enshrined the federal right to an abortion (passed the same year that my wide eyes took in the Yom Haatzmaut celebration as a 7-year-old boy).
We have all been absorbing the non-stop news coverage of this revelation. As so many have said, we should not be surprised by this news: in our hearts, we knew it was coming, with the Supreme Court configured as it is. But what was abstract has now become (or is about to become) reality, most likely.
The abortion debate, needless to say, raises a great many questions. Last week, in my Friday article, I tried to make some very basic points about the debate from a Jewish halachic perspective. We all know by now that many of the Republican states that have passed anti-abortion bills take the matter to the extreme. Unborn life, the argument goes, is so sacred, that it must not be sacrificed even if the child is the product of rape or incest – even if the teen or pre-teen mother’s body is hardly developed enough to carry a child – even if the mother is in no state, psychologically, emotionally, or situationally, to care for a child – even if the child has no hope of ever living a happy, healthful, or even cognizant life – even if the birth of the child will cost the mother her own life.
Jewish thought on this matter, as I wrote last week, is complex, but I can sum it up as follows: Generally speaking, Judaism frowns upon on-demand abortion. This is true of all three major denominations, Orthodox, Conservative, and Reform, all of which permit abortion only if there is a “threat to the mother’s life.” How they understand “a threat to the mother’s life,” however, varies greatly. A well-sourced article from MyJewishLearning.com notes that:
In 1983, the Conservative movement’s rabbinical authorities permitted abortion only “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.”
As for the Reform movement, also from MyJewishLearning.com,
In 1958, the movement’s rabbinate determined that abortion is permitted for the sake of the mother’s mental well-being if there is a “strong preponderance of medical opinion that the child will be born imperfect physically, and even mentally.” In 1985, the psychological justification was explicitly extended to cases of rape and incest, while emphasizing opposition to abortion for “trivial reasons” or “on demand.”
For the Orthodox (one last time from the same article), there are
Rabbinic sources that support abortion when a mother’s health is in danger even if her life is not at risk; when a fetus is conclusively determined to suffer from severe abnormalities; when a mother’s mental health is in danger; or when the pregnancy is the result of a forbidden sexual union.
It is worth noting that in none of these is there a universal standard, and all three movements would examine the issues on a case-by-case basis.
While the biblical justifications for the restrictions are scant, frankly it’s not out of line for a religion that believes fundamentally in the sanctity of life to fall on the small-C conservative side of the debate, and, as the same article points out, Jewish law considers the body as belonging to God, and so not any liberties can be taken: suicide is proscribed, as are tattoos and any kind of bodily mutilation, as we read in today’s parasha (19:28).
At the same time, most of the Biblical, Rabbinic, and Classical sources are in agreement that:
a. Life does not begin at conception
b. The fetus is not considered a full person until it takes its first breath
c. The fetus is considered part of the mother’s body, not a separate entity
So while the movements have fallen where they have, the sources informing those decisions are, at least by contemporary American standards, liberal. And while the general Jewish gestalt is as I laid it out a moment ago, there are still many contemporary sources that are very lenient. An interesting piece by Rabbi Danya Ruttenberg cites several of these, a couple of which I’d like to share. The first is from Rabbi Eliezer Waldenberg, a giant among 20th century Orthodox poskim (halakhic decisors). He was a particular specialist in matters of medical ethics, and his collection of halakhic responsa, the Tzitz Eliezer, is a classic in the field. Responding to a question on abortion, Waldenberg cites the leading 18th c. German rabbi Jacob Emden. Emden wrote a legal responsum regarding “an adulterous married woman” who is pregnant, in which he allows for an abortion “only so as to save her from woe associated with it that would cause her great pain.” Quoting that ruling in one of his own responsa, Waldenberg states
We see clearly that this permission of Rabbi Yaakov Emden is even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. …And suffering and emotional pain in great measure are greater and more painful than physical pain.
(Rabbi Eliezer Waldenberg, Tzitz Eliezer 13:102 (1978))
Another major 20th c. Orthodox authority, Rabbi Aharon Lichtenstein, answering a specific question on abortion, says,
Here it is clear that saving a life is not the only sanction for permitting an abortion.… It would seem to me that issues such as kevod ha-beriyot (dignity of persons), sh’lom bayit (domestic peace) and tza’ar (pain), which all carry significant [Jewish legal] weight in other contexts, should be considered in making these decisions.
(Rabbi Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” Tradition 25:4 (1991))
On the other hand, Rabbi Moshe Feinstein, the preeminent American posek (decisor) of the 20th c. allowed abortion only to save the life of the mother; in all other cases, he considered it murder.
Now, I ended my piece last week by saying that, in my opinion, none of this matters in the current debate. Let me explain.
I have no problem revealing that I am ardently, even religiously, pro-choice. The abortion debate is hopelessly muddled because, as we all know, the two sides are arguing about two different things. One is arguing about life, when it begins, when a fetus is “ensouled” (i.e. “gets its soul”), the sacredness of life. The other is talking about the right to privacy, the right to self-determine what happens to your own body, objection to the government forcing a woman to carry a pregnancy to term, and so forth.
I also have no problem revealing that I have a certain sympathy for, and understanding of, the “pro-life/anti-abortion” viewpoint. As someone who makes an effort to practice religious pluralism, and as someone who possesses my own particular set of beliefs, I very much appreciate that someone might hold certain values dear to them, even if they are radically different from my own. I don’t believe that my way is the way, and I have no desire to force my way on anyone else. Tellingly, someone wrote to me after reading my article last week, objecting to my characterization of “Republican states.” “People in those particular states are living by Church doctrine,” she wrote, sympathetic to (though disagreeing with) their position. But that is exactly the point. The current debate, and the leaked Supreme Court draft opinion, are rooted in an extreme religious, and specifically Christian understanding of when life begins! The multiple Jewish sources that I cited make it very clear that, at least in our religion, there is no such standard! Which begs the question, why should we be forced to live by someone else’s religious standard? Without the federal protection of abortion, Jews will be denied their religious freedoms! Jewish law, in all cases, prioritizes the life of the mother over that of the fetus/unborn child, and in fact demands abortion in cases where the mother’s well-being is at risk. But in those states which have passed draconian abortion laws, preserving the life or health of the mother is not necessarily a reason to terminate a pregnancy, and so Jews will be faced with a choice between breaking state law (and possible criminal prosecution), and violating extraordinarily important “life-and-death” halakha.
The abortion debate before us is not about life or souls: it’s about imposing a particular Christian viewpoint – one that is not remotely universally shared by Christians, let alone all other religious or non-religious groups and people – upon the rest of the society. This very notion is in direct contravention of the first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” I acknowledge that I am no constitutional scholar, but the very simple example that I just laid out illustrates that abortion bans deny other groups the free exercise of their religion and are thus deeply problematic.
Roe v. Wade was meant to be a compromise. It ruled that a woman has the right to choose whether to end a pregnancy, based upon the due process clause of the 14th amendment, as well as taking into consideration the clear societal need for access to safe and legal abortions. It also acknowledged the “government’s interests in protecting women’s health and prenatal life.” The pro-life/anti-abortion side cannot live with the compromise. Why? Again, because of their religious beliefs. Abortion is a zero-sum game. If you believe that there is a life from the moment that sperm meets egg, and that destroying that “potential life” is tantamount to murder, then there can be no compromise. What is so shocking in all this is that that argument seems to be prevailing at this moment. That is a step in the direction of theocracy – a particularistic Christian theocracy. The implications for Jews in that event are dire.
This is why none of the minutia matter. The argument should not be about whether, “until forty days from conception the fetus is merely water,” as Rav Hisda says in the Talmud (Yevamot 69b:9-10), or whether life begins at conception, or whether the life of the mother is in danger – none of this should matter insofar as these are religious arguments.
For nearly 50 years, it has been the dream of the Christian right to undo Roe v. Wade. The fact that they are now poised to do it should strike fear in the heart of every other religious group. What happens if circumcision is deemed to be “child mutilation?” Or kosher slaughter to be “cruelty to animals?” Both of these scenarios have arisen in developed nations, even within the last decade, (multiple times): it is not some remote fantasy.
I find it troubling to think of Israel as a safe-haven, a last resort for Jews persecuted in their “host nations.” But it’s hard not to see this Supreme Court shake-up as a straying from basic, enshrined, “page one” American values, and I can’t help but wonder where this is all headed. I hope I live long enough to see Israel’s centennial – to see her as a strong, healthy democracy, at peace with her neighbors, and as a beacon to Jews around the world. I wonder what the logo will look like for that celebration.
But in the meantime, I hope and pray that the United States, too, can remain a beacon of freedom for all people. Maintaining that is extraordinarily hard work, and right now, I believe it’s time to roll up our sleeves.
Shabbat shalom um’vorach – a happy and peaceful Shabbat.
Rabbi Sam Levine