“O My America: Abortion and Religious Freedom, Part 1” by Lawrence Bush

Reference: Jewish Currents

January 19, 2013

While the movement for reproductive rights still has the numbers on its side — a majority of Americans, forty years after Roe v. Wade, still favor continued legal access to abortion, at the very least in cases of rape, incest, or life-threatening pregnancy — the slogan, “a woman’s right to choose,” has been hard-pressed, since the headiest days of the modern feminist movement, to match the persuasive clout of “the right to life.”

The former is about complicated moral choices. The latter is about uncomplicated religious conviction.

Winning support for “a woman’s right to choose” requires explaining the history of women’s oppression and the role of forced motherhood in that oppression. The key issue, for pro-choice advocates, is not whether or not “life begins at conception,” but whether that incipient life takes precedence over a pregnant woman’s self-determination. Our answer is “no,” because we know that the denial of women’s control over their bodies is a cornerstone of global poverty, sexual and domestic violence, and inequality for half the human race.

The “right to life” movement, by contrast, simply points to the “miraculous” nature of conception, pregnancy and birth, and argues that this awesome process must be God’s doing, not ours to contradict. This appeal to religious instinct leads the majority of the public to concede only reluctantly the “right to choose” as a necessary evil, not as a tool of social progress.

Yet in the religious realm, pro-choice activists have an important point to make: that Jewish religious teachings about abortion differ dramatically from the Christian doctrines that dominate the American debate, and that the Establishment Clause of the Constitution therefore provides additional justification, beyond the “right to privacy,” for the preservation of abortion rights in our country.


Forty years ago, when the Supreme Court ruled the banning of abortion in the first trimester of pregnancy to be unconstitutional, the justices were aware, in Harry Blackmun’s words, of “the deep and seemingly absolute convictions that the subject inspires.” The Court avoided confronting these convictions by basing its ruling not on church-state separation but on a right to privacy that was implied by the 14th Amendment (and the 9th, according to the District Court ruling that Roe v. Wade upheld). This was the same argument the Court had used in 1965 to overturn a Connecticut state law banning the use of contraceptives.

For opponents of abortion, however, “murder” cannot be a private matter, and the law of the land cannot be permitted to contradict “higher law.” Catholic doctrine, for example, holds abortion to be murder after the very moment of conception, when “ensoulment” occurs. Given that souls are marked by “original sin,” moreover, and require baptism to achieve “eternal salvation,” the killing of an unbaptized fetus is a heavier crime, from the Catholic religious perspective, than the murder of a born, baptized human being.

Not everyone in America shares these beliefs, obviously — not even everyone who seriously practices a religion. It is common wisdom, for instance, that Judaism permits abortion when a woman’s life is threatened by pregnancy or birth. To develop a slightly more uncommon wisdom on this subject, however, I recently read Abortion in Judaism, by Rabbi Daniel Schiff (Cambridge University Press), a survey of some 2,000 years of Jewish religious debate on the issue.

Two aspects of Judaism’s discussion of abortion troubled me immediately as I waded into Schiff’s study. The first is how abstractly the Talmudic rabbis and later commentators dealt with it. Over the course of several centuries, for example, halakhic authorities discussed the paradigmatic case of a pregnant woman who is condemned to death: should her execution be postponed long enough for her to give birth? The majority opinion consistently held that unless she is already in the process of giving birth, she should be executed swiftly, along with her unborn child, to spare her the suffering of having to wait and the possible shame of a spontaneous birth in public at the time of her execution. More odd than the ruling itself is the fact that the situation is basically hypothetical, given the de facto abolition of capital punishment within Jewish life by the time the discussion was being pursued.

The second, more troubling aspect of the Jewish religious discussion of abortion is the complete absence of women’s voices over the centuries. While the basic well-being of a woman was given priority over that of an unborn child even in the very strictest traditional rulings, women never participated in the discussion itself, until our own time.

Indeed, the only Biblical passage that bears upon the abortion issue, Exodus 21: 22-25, treats the loss of an unborn child as a matter of property damage — with compensation to be paid to the husband — while completely ignoring the feelings or rights of the woman. In that passage, men are fighting and “they push a pregnant woman and she miscarries.” If only the loss of the fetus is involved, the men pay a fine to the husband. If the woman, too, is injured, the “eye for an eye” standard is applied.


Yet this Biblical passage clearly runs counter to the “fetal murder” statutes that more than two dozen states have sought to adopt in the past decade as part of the conservative movement’s effort to establish “personhood” for fetuses. Numerous Jewish texts, moreover, make clear that the “partial birth abortion” ban legislated by the U.S. Congress in 2004 runs counter to Jewish religious law. The Mishnah itself, for example (compiled at the start of the 3rd century CE as a fundamental compendium of Jewish law), directly states, “If a woman suffers hard labor, the fetus is cut up in her womb, and taken out limb by limb, for her life comes before its life.”

To be continued . . .