50 years since Roe v. Wade: Abortion, Orthodox Jews, Israel, and Jewish law

This week marks the 50th anniversary of the landmark US Supreme Court ruling on the case of  Roe v. Wade. While it was overturned last year, abortion is still a hotly contested legal issue, pitting western liberals against evangelicals and other conservative voters. Jewish Americans are beginning to speak up and, at least in some cases, take the pro-abortion side.

MISSOURI: FAITH AGAINST STATE

On Thursday, a dozen Missouri faith leaders, including Christian faith leaders, Unitarian Universalist leaders, and rabbis from multiple Jewish denominations filed a suit  in St. Louis Circuit Court challenging the state’s “Right to Life of the Unborn Child Act,” claiming it violated the separation of church and state protected in the constitution. 

The lawsuit, filed on behalf of the faith leaders by Americans United for Separation of Church & State and the National Women’s Law Center, said sponsors and supporters of the Missouri measure “repeatedly emphasized their religious intent in enacting the legislation.”

“What the lawsuit says is that when you legislate your religious beliefs into law, you impose your beliefs on everyone else and force all of us to live by your own narrow beliefs,” said Michelle Banker of the National Women’s Law Center, the lead attorney in the case. “And that hurts us. That denies our basic human rights.”

The law, written in 2019, prohibits abortions except in the case of a medical emergency. The law makes performing abortions a felony punishable by five to 15 years in prison and states that providers can lose their medical licenses. The law stipulates that women who undergo abortions cannot be prosecuted.

“I’m here today because none of our religious views on abortion or anything else should be enshrined into our laws,” Maharat Rori Picker Neiss, executive director of the Jewish Community Relations Council of St. Louis and one of the plaintiffs, said at a news conference.

ORTHODOX RABBIS SLAM PRO-ABORTION RABBIS

The Coalition for Jewish Values (CJV), which represents more than 2,000 traditional, Orthodox rabbis in American public policy, issued a statement slamming the lawsuit, calling it a “desecration of God’s name that is simply beyond words.”  

“To assert that access to an elective procedure is somehow a religious obligation is inherently irrational, defying all logic and reason,” said CJV Midwestern Regional Vice President Rabbi Ze’ev Smason.

“And to cloak this demand in the mantle of Judaism is heinous. Let us ask these five rabbis claiming to speak for Judaism: what positive commandment do they fulfill when stopping the heart of an unborn baby? What Hebrew blessing do they recite upon feticide?”

CJV rejected three ideas upon which the lawsuit was based: that a pro-life position places religion over science, that valuing fetal life is uniquely tied to one religion, and that legislators should be expected to discard their religious views when formulating public policy positions.

Their statement noted that among the innumerable medical advances of the fifty years since Roe v. Wade was decided, it is now known that children learn to suck their thumbs, respond to their parents’ voices, and even recognize songs in utero—meaning that science, contrary to the lawsuit’s narrative, offers compelling evidence that a child is alive before birth. The rejection of elective abortion is also rooted in the Jewish Bible, the foundation of monotheism and moral authority. And, finally, the idea that a citizen cannot consider personal religious views on a moral question violates not only common sense, but democratic principles.

“This lawsuit is without basis in either Jewish or secular law,” said CJV Vice President Rabbi Dov Fischer, an adjunct professor of law at two prominent Southern California law schools for nearly 20 years. “And that it was filed by people calling themselves ‘rabbis’ is simply outrageous. Their manifest ignorance of Jewish history and the sacred value of human life is in line with their ignorance of Jewish belief. Their woke effort to distort core Jewish values constitutes a desecration of G-d’s name that is simply beyond words, and they should be ashamed.”

JEWS CHALLENGE ANTI-ABORTION LEGISLATION IN OTHER STATES

The Missouri rabbis are not the only Jewish leaders to challenge anti-abortion legislation. In June, a synagogue sued the state over its 15-week ban on abortion. 

In September, a lawsuit was filed in Indiana by five anonymous women — who are Jewish, Muslim, and spiritual along with the advocacy group Hoosier Jews for Choice, claiming that the state’s ban on abortion violates the state’s Religious Freedom Restoration Act. In the lawsuit, they claim that Jewish law teaches that a fetus becomes a living person at birth and that Jewish law prioritizes the mother’s life and health. Many halachic authorities would challenge this representation of Jewish law and its application to elective abortion.

In October, three Jewish women filed a lawsuit to block Kentucky’s abortion restrictions on religious freedom grounds, claiming they went against Jewish law regarding when life begins.

ROE V. WADE: 50 YEARS OF JUDICIAL ACTIVISM

On January 22, 1973, the Supreme Court issued a 7–2 decision ruling that the Constitution of the United States protected the right to choose to have an abortion. In doing so, it struck down many federal and state abortion laws, shutting down public debate and moving the decision to the federal level. The decision, one of the most contentious in US history, is heavily criticized even by pro-life lawyers as being an egregious example of judicial activism. 

In June 2022, the Supreme Court overruled Roe in Dobbs v. Jackson, repealing Roe v. Wade on the grounds that the substantive right to abortion was not “deeply rooted in this Nation’s history or tradition”, nor considered a right when the Due Process Clause was ratified in 1868 and was unknown in U.S. law until Roe. The ruling granted individual states the full power to regulate any aspect of abortion not protected by federal law.

The Roe v. Wade decision was prematurely leaked to Time magazine before it was officially handed down. Similarly, in May 2022, Politico published a leaked draft majority opinion by Justice Samuel Alito. The leak led to illegal protests at the homes of supreme court justices and death threats targeting several justices. The leak prompted several states to pass trigger laws that would automatically pass abortion legislation. The source of the Dobbs leak has yet to be discovered. 

ABORTION IN JEWISH LAW

Rabbi Moshe Avraham Halperin, head of the Machon Madii Technology Al Pi Halacha (the institute for technology according to Torah law), is an expert in medical ethics in the framework of the Torah. He explained the Torah’s position on abortion to Israel365 News.

“There is no credible rabbinic opinion that permits abortion on demand,” Rabbi Halperin said.” There are conditions under which it is permitted to abort the pregnancy. Of course, if the mother’s life or health is endangered, abortion is permitted. If the mother believes it will harm her psychologically, this requires consultation with medical and religious professionals. This is considered saving a life, but each case must be considered separately. Monetary hardship is not a reason to justify murdering an infant. ”

“Until the 40th day, it is permitted under some specific circumstances to end the pregnancy if it is clear the baby has no chance to survive. There is one opinion that if it is determined that the infant in the womb has Down’s Syndrome, it is permitted to abort the pregnancy up to the third month of pregnancy. But this opinion has been decried by major halachic authorities.”

“Ending the life of a fetus, according to some opinions, is murder,” Rabbi Halperin emphasized. 

The rabbi cited Genesis:

Whoever sheds the blood of man, By man shall his blood be shed; For in His image Did Hashem make man. Genesis 9:6

The rabbi cited the Talmud, which noted the phrase shpoch dam ha’adam ba’adam (שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם), which literally means “whoever spills the blood of a man in a man….”

“The Talmud (Sanhedrin 57a) learns that this is referring to a man inside a man, that is to say, a fetus,” Rabbi Halperin said. “We learn from this that the prohibition against abortion is included in the Noahide Laws and is incumbent on Jews and non-Jews.

ABORTION IN ISRAELI LAW

Abortion was officially legalized in Israel in 1977. In order to carry out an abortion in Israel, approval must be given by a pregnancy termination committee that has been given said authority. Approval is granted in the following cases:

  • if the woman is younger than 18 or older than 40
  • If the woman is not married or the pregnancy is not from the marriage
  • If the pregnancy is the result of relations which are illegal according to criminal law, or are incestuous.
  • If the child is liable to be born with a physical or mental birth defect
  • If continuation of the pregnancy is liable to endanger the life of the mother or cause her physical or emotional harm

The committee may only make decisions regarding requests where the pregnancy is less than 24 full weeks according to an ultrasound confirming the stage of the pregnancy. When the pregnancy is further along than 24 weeks, the case is passed on to a special committee. 

Until recently, Israeli women were required to go to day-surgery units in hospitals or special surgical clinics to terminate a pregnancy. Israeli women are now allowed to have a medical abortion at their health maintenance organization clinic rather than in a hospital. The form will be digitized so that committee members will receive the full information in advance, and the woman applying will be able to submit the referral remotely and not have to go to the meeting in person.

Compared to the rest of the world, abortion rates in Israel are moderate. According to government data, the rates in 2016 dropped steadily to nine per 1,000 women of childbearing age despite the significant increase in the population – lower than England (16.2) and the US (13.2). Fully 99% of abortions are carried out in the first trimester. According to the Central Bureau of Statistics, more than 16,000 requests were made to committees in 2020, with the vast majority of them approved by the panels.

ANTI-ABORTION IN ISRAEL: LOVE THE MOTHER

One of the reasons for Israel’s relatively low rate of abortion may be thanks to the EFRAT Organization. EFRAT works on the premise that legislation will not prevent abortions. Instead, EFRAT encourages women not to have abortions, offering them financial support and counseling as an alternative. 

“Our mission is to help women avoid abortions,” Ruth Tidhar, the Director of the Assistance Department said. “And laws don’t save babies. Love saves babies.”

“We offer concrete assistance; a crib, diapers, clothes, and toys for the first two years.”

Tidhar said that much of what they do is usually provided by supportive husbands, parents, and communities, deteriorating elements in Western countries.

“We also give career counseling to help the women rejoin the workforce,” Tidhar said. ‘We help with tuition and daycare.

EFRAT officially views abortion among Jews as a demographic threat to the Jewish people. Since its establishment in 1977, EFRAT has helped tens of thousands of women to choose life, saving over 80,000 children.

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