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O My America: Abortion and Religious Freedom, Part 2

January 20, 2013

by Lawrence Bush

For Part 1 of this article, click here.

Two fundamental concepts underlie the Jewish belief that the mother's life always takes precedence over the unborn child's, according to Rabbi Schiff's Abortion in Judaism. Rashi, the great Talmudic commentator of 11th-century France, attributed it to the fetus's lack of standing as a nefesh, a soul. Maimonides, the major codifier of Jewish law in 13th-century Egypt, also pointed to the fetus' role as a rodef, a "pursuer" who has the intent to kill the mother; Jewish law commands us to kill a rodef to prevent him or her from committing murder.

Schiff's book traces the widely divergent interpretations of how these and other legal categories apply in various circumstances. Some of these are anything but abstract, as in the 1942 ruling by Rabbi Ephraim Oshry, one of the few rabbinical Holocaust survivors of the Kovno ghetto in Lithuania. In response to an SS degree in May of that year that declared any pregnant Jewish woman liable for execution, Oshry was asked whether it was permissible for a woman with an untroubled pregnancy to have an abortion. Oshry ruled yes, given the alternative that both mother and child would die.

Other cases across the centuries have involved fetal deformity, pregnancy through adultery, instances in which birth will cause deafness or injury or mental distress but not death to the mother, and so on. Schiff notes that in the 19th and earth 20th centuries, as restrictive abortion laws were adopted in many countries, "the restrictive tendency of the surrounding legal structures was not reflected in any discernible way in the responses" of Jewish authorities. "To the contrary, the rabbis appeared to be tilting more towards leniency at the very time that civil mores were heading in the opposite direction." But as abortion laws were liberalized in those same countries in the second half of the 20th century, the "split" between the liberals and conservatives in Jewish life sharpened, and Orthodox halakhists, threatened more and more by feminism and other cultural challenges to their authority, became increasingly committed to highly restrictive views of abortion.

At the same time, women at last began to enter the non-Orthodox rabbinate and to be heard in public Jewish dialogue. With them came some truly transformative views of reproductive rights. Sandra Lubarsky of Northern Arizona University, for example, argues that it is the choice to give birth, not to abort a pregnancy, that demands justification, since human life demands "sacrifice . . . from other forms of life. . . . Abortion, then, becomes an issue that cannot be considered apart from ecological issues." Orthodox activist Blu Greenberg argues that "in certain instances abortion is the higher morality" within the overall principles of Judiasm, and that the Jewish acceptance of "therapeutic abortion" should be greatly broadened. Reconstructionist Rabbi Rebecca Alpert asserts that "Jewish conversations about abortion . . . must treat women as moral agents," with a strong voice in reproductive decisions, not merely as bodies to be ruled about. Lubarsky, too, challenges Judaism's neglect of "a woman's mental life," which should be accorded "significance that at least equals and ought to surpass the physical aspects of her life. . . . So long as mentality is subservient to physicality in the discussion about abortion, or any issue concerning women, the tendency will be to perceive women as being less than fully human."

There is much fascinating material in Daniel Schiff's book, including a chapter about abortion in modern Israel (where the situation might be summarized as restrictive in law, permissive in practice). At the least, Schiff's study makes clear that religious attitudes towards fetal status are, in all of their variety, significantly different from Christian perspectives, and that the inflammatory generalization that "abortion is murder" would not be acceptable even to the strictest interpreters of Jewish law. In the name of religious pluralism and the church-state separation principle that protects it, this difference should be an important consideration in the debate over reproductive rights.