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Kedoshim 5782      May 7, 2022

Rabbi Randall J. Konigsburg

Shabbat Shalom.

     Since all that anyone is talking about this week is the first draft of a Supreme Court decision about abortion rights in the United States, I take this opportunity to teach a bit on Jewish Law and how Judaism approaches this hot button, culture war issue. Let me begin by saying that neither the Supreme Court nor any other court in this country should rule according to Jewish Law. Jewish Law is for Jews. I am speaking this day to Jews so we can know what our tradition has to say about abortion and maybe it will inform our understanding of American Law. I also note that as of this moment, nothing has changed in American Law relating to abortion. What found its way into the press was a first draft of an opinion of the Supreme Court about the status of the ruling that governs abortions in this country.

     Jewish Law also starts its own deliberations on issues with a first draft, and many changes are made throughout the process until other Rabbis can agree with a position. How significant is a first draft? Actually, it is not all that important. Rabbis have made authors of first drafts go back and start over again if they do not like what was done. If the first draft cannot be changed enough, then alternative papers and dissents are written. A first draft is like the list of ingredients in a recipe. There will be a lot of mixing, pouring, and baking before anything of use will come out. The reason it is all kept secret is because we really do not want to know how the sausage is made.

      So, what does Jewish Law say about “Abortion” and “Privacy”? Neither word is mentioned in the Torah. That does not mean that the Sages did not talk about either one. If the Torah does not mention “abortion” and “privacy,” how is the law decided? What Torah states is that we are required by God to be a holy people; that is the point of our Parsha this week. This means we need to follow God’s laws. One of those laws is found in Exodus 21:22. There it talks about two men fighting and, in the fight, a pregnant woman is pushed and miscarries the child. The husband can determine how much the one who pushed should pay unless the mother is injured in which case the usual damages must be paid. The point here is that the miscarried fetus is not considered a life. If it were a life, then the miscarriage would be a capital crime, punishable by death. But instead, it is considered an injury to the woman and the damage is assessed by the woman’s husband. If there is any other injury to the woman, it is treated like any other injury under the law, eye for eye, tooth for tooth, etc. Our basic legal document, the Torah, does not mention everything it needs to cover. It is the job of rabbinic courts to apply the law to new situations.

     The Mishna codifies this status for the fetus saying, “if a woman’s labor becomes life threatening, the fetus is dismembered in the womb and taken out limb by limb, for her life comes before the life of the fetus. Once most of the child has emerged from the womb, it can not be touched. For one life cannot be put aside for another.” We are not allowed to say one life is more important than another life. Here we have the definition of life. According to the Mishna, life begins at birth, not before. Before the child is born, the fetus is considered as just another organ in the body of its mother.

     Maimonides explains this further, inserting the laws of abortion into the laws of the rodef. The rodef is someone who is chasing after you with an intent to kill. It is completely illegal to kill another person unless they have been convicted of a capital crime. The one exception is the rodef. If the rodef is armed and threatening, one can kill that person first, before he can kill you. Rambam then compares the fetus to a rodef threatening the life of its mother. It is permitted/required to kill the fetus to save the life of the mother. Again, once the head or most of the body is born, it is now alive and, again, one life cannot be put aside for another.

     It is interesting that the Rabbis push this idea further. If a fetus is a rodef, once the head is born, it is still a rodef. The law about the rodef says it can still be killed. Here, the Rabbis will not tread. Once the child is born, it is not the child who is threatening the life of the mother, it is now a decree from heaven whether this woman will die; women die in childbirth for all kinds of reasons. Once the child is born, it is no longer the source of the threat to the life of the mother.

     What we still do not have is a definition of “threat to the mother.” Is her life in danger? Is her health in danger? How do we know when a fetus becomes a rodef? How do we know when the fetus is endangering its mother? It is only in the modern world where we understand more about medicine and the stages of childbirth that we can begin to focus more on the question of the meaning of “threat to the mother.”

     We have an opinion from the modern period from a rabbi who is asked the question, “can an adulterous married woman (who is pregnant) be allowed to abort the child?” This rabbi, in his “She’elat Ya’vetz,” permits the abortion. He says, “And even in the case of a legitimate fetus there is reason to be lenient if there is a great need. As long as the fetus has not begun to emerge, even if the mother’s life is not in jeopardy, but only so as to save her from an evil associated with it that would cause her great pain.”

     Another rabbi responding to this opinion comments on this ruling by adding: “This is because of the mother’s need to save her from embarrassment and disgrace when the child is born, for all of her days. … For there is no need, nor physical and spiritual pain, greater for a mother who has done teshuva than her illegitimate child who will be living reproof constantly. It is simple and clear that if we permit abortion for this reason, then we should permit it in the case of a married woman who is raped, for the child would be illegitimate when conceived by rape. Therefore, it seems that if there is a valid concern that the child will be born deformed or in constant pain, we should permit an abortion within 40 days of conception and, at the most, up to three months and providing that the fetus is not moving.”

     What has been decided here is that the “health” of the mother should include her physical health, her mental health, and her emotional health. If the child will cause her embarrassment throughout her life, or if it is deformed, or will be in constant pain, then it is permitted to abort.

     I do want to add here, in none of these cases is there the idea of “abortion on demand.” The Rabbis have far more respect for life, even potential life, to let abortion be the last chance for birth control. The Rabbis could be very lenient about the health of the mother, but they did understand that an unrestricted use of abortion would lead to a disrespect for human life.

     What happens then, is that if there is a medical reason for an abortion, due to physical health issues, mental health issues or emotional health issues, then an abortion is permitted. But no human being can just remove a part of his or her body just because they do not like it. Thus, this decision is a decision between a woman and her doctor. It is not a place where a rabbi determines what is medically necessary.

     To be sure, there are rabbis that disagree with these lenient positions. Some major Halachic authorities forbid abortion in all cases. In their minds, this disrespect for a life that has been given by God is just too great. These authorities remain a minority opinion. They represent, however, how serious the decision to abort should be.

     In the 1980’s, the chairman of the Law and Standards Committee of the Rabbinical Assembly, Rabbi Kass Abelson wrote, “There is clear precedent in the tradition… to permit abortion of a fetus to save a mother’s life, to safeguard her health or even for a very thin reason, such as to spare her physical pain or mental anguish. Some … also consider the well-being of other children, and the future of the fetus itself as reasons to permit abortion. All agree that there must be a reason to justify the destruction of the potential person the fetus will become after birth. Where there is reason to believe that the fetus may be defective ... if the tests indicate that the child will be born with major defects ... It is permitted to abort the fetus.” 

     What we learn here is, as usual, Judaism takes a position that is not radical to either side of the current debate. It is neither fully pro-life nor fully pro-choice. Abortion is permitted but not in every case. A woman has the right to choose, but also must have a reason. But the most important part of these rulings is that this is a medical decision relating to the health of the mother and the fetus. There is extraordinary room for a woman and her doctor to decide what is best in her case. Judaism is supportive, not judgmental, in dealing with this issue and with the people involved. Abortion is not birth control, but neither is a pregnancy a burden that must be carried every day of a woman’s life. I should also add that the Jewish community had and still has a dedicated support network for women who choose to carry their fetus for its full term and raise the child.

     Our American health system still leaves far too many poor people behind. The inability of our health care system to cover those who are financially unable to pay, this alone makes it difficult for a woman to choose to have a child. Childbirth is, by definition, a threat to the life of a pregnant woman. We should not force a woman to endanger her life without consulting her and valuing her opinion. The right to control our bodies is not a right that is easily revoked. And here I offer one personal reflection: I do find it interesting that the same people who said that the government does not have a right to control their body and to make them wear a mask during a pandemic, these same people also say that the government does have the right to tell a woman what to do with her body and forbid her to have an abortion.

     I teach this lesson not to suggest the Jewish law is superior to American law. They are separate legal systems that start with different assumptions. I offer this example to show that there is middle ground, there is a measured way to ensure that abortion is safe, legal, and still respects women and the children they bear.

     May God give us the wisdom to find the proper balance in life and in law as we say….

      Amen and Shabbat Shalom

Tue, November 29 2022 5 Kislev 5783