Jewish Religious Law and Abortion
I've previously spoken on what the Scriptures say about abortion and even wrote a white paper on the subject. In an age when people debate the meaning of the word "is", you are not going to find 100% agreement on anything in the Scriptures. But if you talk to enough people, you start seeing patterns.

For instance, I've noticed that the rabbis and priests who take their Scriptures literally are usually the ones that believe their religious texts are very clear - abortion is murder. Likewise, those priests and rabbis who think the Scriptures are "guidance" and "suggestions" tend to think abortion should be legal. In general, this bulk of this group also believes gay marriage and the Scriptures are easily reconciled. These folks are the ones who strain interpretations, but they have the advantage of being politically correct. And if you believe that Scripture is just guidance, there is no reason to follow it too carefully.

Calling abortion for the murder it is, is very politically incorrect and brings out attacks from many – sometimes where one least expects it. Thus, many people are reluctant to do so which reduces the availability of this information. This may explain why some well-read folks have trouble even believing that the Scriptures are even pertinent to this issue.

For example, the inspiration for this post comes from a discussion I've been having with Dean Esmay. When I agree with others that the Scriptures are clear that abortion is murder, I get responses such as:

Every Jewish expert I have ever spoken to says that the scriptures clearly state that the soul enters the body upon the first drawing of breath--and that abortion, while it may be troubling, is clearly not proscribed by the scriptures.
I do not know with what Jewish experts Dean is familiar, but it appears obvious he has only been exposed to a small spectrum of Jewish opinion. Or to be even more fair, he has probably only been exposed to the majority opinion of North American Jews. And if he is not familiar with the politically incorrect beliefs of many Jews, others may be in the same boat. This is not an attack on Dean, whom I respect, but an attempt to overturn a misconception that is apparently held by many. One reason for this misconception may be that North American Jews are notoriously "liberal" in the world-wide Jewish community, so many Americans may expect that the mainstream Jewish opinion in America reflects that of the world's Jews. It rarely does. (A quick political test provides an example. Which US presidential candidate is favored by most American Jews? Which US presidential candidate is favored by most Israelis? Hmmm…).

At any rate, let me share some references that will clearly refute the claim that all Jewish experts believe abortion is not proscribed by the Scriptures. And I will deliberately select some experts from North America to show that even here, in the heart of the most liberal Jews in the world, those who believe the Scriptures are literal have a pro-life voice.

One of the most complete discussions of Jewish law and abortion was written by two Jewish Christians. Their book Ethics for a Brave New World is a great resource and clearly speaks to this and other issues.

However, I can anticipate the responses now. "But those are Jewish Christians. What about Jewish Jews?" So let's look at what some contemporary Rabbis are saying.

This is a typical summary of Jewish experts who take the Scriptures literally. It is a slightly more nuanced view than those who see a complete ban on abortion. These rabbis "only" believe the Scriptures ban abortion in the 99.99% of cases where the mother's life is not in danger. I've placed a few parts in bold.

A group of Jewish rabbis--orthodox, conservative and reform--joined Christians at a pro-life gathering in Washington DC on November 12. The rabbis said the Jewish community should speak out more vocally against abortion, and agreed that Jewish law forbids abortion unless the mother's life is threatened. "But in every other situation, when there is no such mortal threat, abortion is prohibited," said Rabbi David Novak of the University of Toronto. Rabbi Yehuda Levin of Brooklyn, New York said the "Orthodox Jewish community is not doing enough in getting the message out. It's the world's greatest secret that we care about this."
This article does an excellent job discussing the wide range of beliefs in the American Jewish community. There is certainly not unanimity even amongst the pro-life American Jews, but there are many experts who use the Scripture (and Science) to argue against abortion.
Barry Freundel, an Orthodox rabbi from Georgetown… feels obliged to inform them that the absolute license to abort, as practiced in the United States today, is "simply impossible to reconcile" with traditional Jewish teaching. Judaism, he said, permits abortion in a few limited circumstances, such as to save the life of the mother.

David Novak, a theologian and rabbi who holds a chair in Jewish Studies at the University of Toronto… No Jewish source, however, accepts abortion for the purpose of birth control or sterility, a practice that "cheapens human life" and public morality.

Yehuda Levin, an Orthodox rabbi from Brooklyn… said that the Orthodox community has a special responsibility to present to the wider public the authentic pro–natal, pro–life Jewish view on abortion. Levin… said Jews are obliged not just to cultivate righteousness within their own community but also to be "a light unto the nations"; specifically, he argued, Orthodox institutions should lobby to protect life as earnestly as they seek tuition tax credits or vouchers for religious schools.

Clifford E. Librach, a Reform rabbi from Sharon, Massachusetts… turned the tables on his own liberal Reform movement, which frequently justifies changes in Jewish law on the grounds that the ancient rabbis lacked modern, scientific knowledge. What, then, Rabbi Librach asked, if the sages had known that, from the moment of conception, twenty–three chromosome pairs form the signature of each human being, or that a fetus exhibits brain waves at just ten weeks, or that fetuses are sensitive to music and human voices?

Moses A. Birnbaum, a Conservative movement rabbi from Plainview, Long Island, was among the 450 rabbis who, under the sponsorship of the Institute for Religious Values, recently published an open letter to Jewish members of the U.S. Senate, urging an override of President Clinton’s veto of a bill to ban partial–birth abortion. The National Council of Jewish Women countered with a pro–abortion letter signed by a group of 500 rabbis; but, Rabbi Birnbaum said, they were unable to refute either the medical or religious arguments of the original letter.

If you have read my white paper, or other sources, you may be wondering why most Jewish experts make an exception when the life of the mother is in danger (and this is mostly a theoretical exception – it is very, very, very rare and I know some doctors who claim there is no case where they cannot try to save both the woman and the child. In any case where pregnancy causes risk, abortion also causes a high risk to the mother). After all, there is no Scripture that provides for such an exception. Rabbi Barry Freundel explains that there is an oral tradition that is vital to Jewish religion.

Rabbi Freundel of the Kesher Israel Congregation, Georgetown Synagogue, in Washington, D.C., is currently vice president and Ethics Committee Chairman of the Rabbinical Council of America.

According to the Mishnah, which is a record of oral interpretations of the Hebrew Scriptures, abortion is only permitted when a woman is in "hard travail" and her life is in danger. This is a very limiting position, Freundel pointed out, since there must be serious danger to the mother.

This would not include the vast majority of abortions actually performed in the United States. Not even in the most lenient interpretations, Rabbi Freundel stressed, is there anything that allows abortion on demand.

So while they are a minority in the States, there are many, many Jewish experts who believe their Scriptures forbid abortion (with most of these experts allowing for an exception in the case where a woman's life is in danger from the pregnancy).

 
 
Comments

Uhm, no, the people I have spoken to on the matter are Orthodox and quite conservative on these matters.

However literalism in the scriptures is considered an odd position even among the most conservative Orthodoxy, becuase two thousand years of interpretation, commentary, and common understanding reached by the Jewish community, that document known as the Talmud, has reached answers on many of these questions.

If you read the Judaism 101 FAQ, as written by an Orthodox Jew, the matter is plain: the exact status of an unborn fetus in Jewish law is unclear, although sometimes Jewish law outright demands abortion as a requirement.

You can read more here:

http://www.jewfaq.org/sex.htm#Abortion

I believe the pro-life Jews you're talking about are a minority in the Jewish faith, not just in America but worldwide.

Posted by: Dean Esmay | 09/12/2004 - 10:18 PM

I should note, by the way, that the Orthodox Jews are against birth control, period, much like the Catholic Church's. Which means that their position on abortion--permissible under some circumstances--is still spiritually troubling and frowned upon.

Nevertheless, I do note that none of the sources you spoke of specifically asserts that abortion is murder. That's because they can't; Jewish law makes no such definitive statement, and neither do the scriptures; the best you can do is point to evidence that if a man punches a pregnant woman and she loses the baby, he's to be put to death. But they put people to death for wearing the wrong clothes or having gay sex too, so that's a clear statement of anything. And "I knew you in the womb" is nice, but again doesn't strike everyone as anything literal. Especially since there are other verses which say God knew you even before you were conceived.

Posted by: Dean Esmay | 09/12/2004 - 10:27 PM

If a woman miscarries do to an action of a man, then he does not die, he is fined. Only if she is killed is he killed (and the whole notion of the death penalty in Jewish law is poorly understood.)

However, if a woman would be executed for a crime and it is discovered she is pregnant the execution if carried out immediately, rather than waiting for the baby to be born, unless she "is sitting on the birthing stool".

From my understanding the issues is the woman's life (after 40 days. Prior to 40 days post conception there is much less of a problem with abortion) What constitues the woman's life differes however; is it just that the pregnancy itself endangers the woman's life? Then the baby can be cut up in utero to save her life. What if it is something that would make her life horrendous? That differs from Rabbi to Rabbi. Things have become stricter since the Holocaust. If the woman is threatening suicide, most likely an abortion will be granted. I know that was the case where a woman was given permission to abort a tay-sachs child.

BTW, in issues involving her life there is also a question of whether she MAY have an abortion or MUST have the abortion. I believe the latter is most likely correct, and would go a long way to relieving the suffering of a woman who must have an abortion in order to live.

The issue isn't settled easily in debate form; it is a case by case decision (as are many things within the Orthdox world.) A good Rabbi very likely may grant one woman an abortion under XYZ circumstances, and forbid another woman to do the same under XYZ circumstances, because the woman herself is different.

Regarding birth control; again, it is a matter of Rav to Rav.

Also it is a matter of how these questions are asked. If one goes into a Rabbi and says; I really am tired I don't think I could handle another child right now" one might get information on helpful resources. If one goes in and tells one's Rabbi that one has had thoughts of harming oneself/children or that "my wife never leaves the bed" or something along a similar vein, a good Rabbi will most likely answer differently.

The point is to be honest with the Rabbi about one's own feelings and state, or the feelings and state of one's spouse. A Rabbi can't make a decision in the dark.

Posted by: Rachel Ann | 09/13/2004 - 08:42 AM

I'm with Rachel and Dean (mostly) on this one.

There are lots of practices which are "simply impossible to reconcile" with Jewish law. I am pretty sure that R. Freundel's words need to be understood as a moral statement, not a declaration of law. Orthodox understand of Jewish law insists that abortion represents a tragic snuffing out of what COULD blossom into a human life, not murder.

The earliest sources are most clear on this. Dean, you have it wrong. Exodus 21:22 talks about the difference between striking and killing a woman vs striking and killing a fetus. If just the fetus is killed then the verse says that there is no "ason" -- "harm"; meaning that damages still attach, much like if the assailant threw a rock through the woman's window, but that there is the "life for a life" principle does not apply here.

Similarly, the Talmudic sources discuss all kinds of situtation which are admittedly unusual and contrived solely for the purpose of understanding the legal status of the fetus. Case after case indicates that the fetus is the property of the mother, not a distinct individual.

If you want a stark clarification, the question to ask Orthodox Jewish rabbis is not "Is abortion legal or illegal?" The question is "What, if anything, is the punishment for forcibly performing an abortion against the mother's will?" The answer is that such an act is wrong, yes there is a punishment for doing it, but the punishment is a fine (like in cases which involve destruction of property) not death (as in cases of murder).

Posted by: Ben | 09/13/2004 - 09:08 AM

Exodus 21:22 talks about the difference between striking and killing a woman vs striking and killing a fetus. If just the fetus is killed then the verse says that there is no "ason" -- "harm"

I'm afraid your argument is based on a translation of Exodus 21:22 that is not necessarily widely accepted. Those in favor of abortion will favor your translation:

"...if she has a miscarriage, but there is no serious injury..."

However, I, along with other pro-lifers, would argue that the following is a better translation:

"...her child is born prematurely, but there is no serious injry..." Thus, the man is fined only when the woman and her child are both unharmed. If either the woman or the child are killed, then the following "life for a life" penalty applies.

You may refer to this page for more information about the different translations and interpretations of the verse.

Posted by: ThePyro | 09/13/2004 - 09:05 PM

Several intriguing posts tonight. I'll try to respond concisely – forgive any typos, I'm just finishing a 17 hour work day (not my norm – I'm preparing for an extended business trip).

Dean, thank you for the link. It provides a nice summary of several Jewish points and it validates a point I made earlier when I quoted Rabbi Freundel. According to the Mishnah, which is a record of oral interpretations of the Hebrew Scriptures, abortion is only permitted when a woman is in "hard travail" and her life is in danger. This is a very limiting position, Freundel pointed out, since there must be serious danger to the mother.

I would agree that literalism is considered a bit odd for quite a few Jews because of their oral tradition. Many Jews are far more familiar with the Talmud, which includes many traditions and thoughts that have only a questionable basis in the original Mishnah. (Quick terminology lesson. The Mishnah largely consists of thoughts on the Torah (it is not quite this simple, but Christians may substitute Old Testament for the Torah) and was compiled by Rabbi Judah the Prince in the second century AD. The Talmud includes the Mishnah as well as doctrines that have developed by influential Rabbis thereafter. This is similar to how many Catholics view their Holy Scriptures. Similar to the Jews, Catholics generally give their traditions and Papal announcement equal weight with their holy Scriptures. In fact, many Jews and Catholics are ignorant of many of their written Scriptures and it is fascinating to watch how well read they become once they realize there is a difference between their oral traditions and their Scriptures.

However, when asked which takes precedence over any conflict, most Jews in my experience will state that their written Scriptures take precedence over oral tradition. (Note: This is not a short discussion if you wish to try it. The standard opening comment by scholarly Jews is usually that they do not believe there is a conflict between their oral tradition and their written Scriptures. It takes a lot of work and patience to get an opinion on this issue. But if you can convince them to either answer a hypothetical situation or that such a situation does exist, then they usually answer that the written Scriptures take precedence (and EVERY Orthodox Jew in my experience has answered in this way IF they admit there could be a conflict between their oral traditions and their Scriptures).

Now I do agree that there is no explicit verse in the Jewish and Christian Scriptures that specifically assert abortion is murder. If there was, abortion would be a less contentious issue. As clearly described in my original reference you can "only" make implicit and explicit arguments from the Scriptures.

Rachel Ann (and later Ben),

I agree many things differ from Rabbi to Rabbi. That is one of the reasons I took such exception to Dean's claim that every Jewish expert believed abortion was not proscribed by the Scriptures. This is also why I took care to quote Rabbis from various denominations who said their Scriptures and traditions proscribed abortion except in the rare case where the woman's life was in danger.

However, I strongly disagree with your assertion that If a woman miscarries do to an action of a man, then he does not die, he is fined. Ben somewhat agrees with you, but has to misinterpret a Scripture to do so (in my somewhat educated opinion, sorry if I sound obnoxious Ben, I'm not sure how to best word the fact that I've been reading up on this for many years now). Exodus 21:22 talks about the difference between striking and killing a woman vs striking and killing a fetus. If just the fetus is killed then the verse says that there is no "ason" -- "harm"; meaning that damages still attach, much like if the assailant threw a rock through the woman's window, but that there is the "life for a life" principle does not apply here.

This is distorting the clear meaning of the words. Let's look at the verses in question. Exodus 21:22-25. If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no harm follows, he shall surely be punished accordingly as the woman’s husband imposes on him; and he shall pay as the judges determine. But if any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.

So if a man causes a pregnant woman to go into premature labor and no harm was done to her or her unborn child, he was punished for risking their lives by a fine agreed to by the woman’s husband and the judges. Thus, the unborn are due protection and even potential threats to the life of the unborn are punished.

However, if a man causes a pregnant woman to go into premature labor and harm was done to her or her unborn child, he was punished severely. If the unborn child was stillborn or died after being born from injuries sustained in the fight, the penalty was death. Since the law of retaliation (life for a life, eye for an eye…) was equal punishment, invoking this law when an unborn child was killed shows that the unborn child had worth equal to that of the man who injured the unborn child. Even if the child was born early but lived, the offender had to pay a major fine for risking the unborn child’s life.

Thus, the Scriptures explicitly recognize the value of unborn humans is equal to that of born humans, that killing unborn children is murder, and that killing unborn children is clearly wrong.

If you want a more detailed dissection of the Exodus passage, borrow or buy the book I mentioned earlier. The scholars dissect the passage (IIRC in its original language) far better than I can and reached the same conclusion. Their expertise on the subject is part of my confidence in the clear meaning of this verse.

Ah, after I finished writing the above, I see ThePyro has posted another reference saying virtually the same thing. Time for me to call it a night. I'll leave everyone with this teaser though. Tomorrow, I'll explain what Bill Clinton has in common with Dean Esmay (or at least Dean's Jewish friends).

Posted by: Don Quixote | 09/14/2004 - 12:31 AM

OK, time to fulfill my promise. What does Bill Clinton have in common with Dean Esmay (or at least Dean's Jewish Friends)? They all believe that the soul enters the body upon the first drawing of breath. The quote is from Dean, but I have heard others say that President Clinton, who is at least nominally a Southern Baptist, eventually justified his support of abortion by adopting a similar belief. (I quickly skimmed Google to find a source for this story and could not, although this comes close.) But whether or not Clinton really believed this theory, it is obvious that some people do. So I am going to explain why I think this is a silly and very flawed conclusion to draw from the Scripture.

Let's look at the verse itself. Genesis 2:7 (New King James Version): And the Lord God formed man of the dust of the ground and breathed into his nostrils the breath of life; and man became a living being. This verse, without considering the greater context of the Scriptures, is used to justify the assumption that the soul enters the body born of woman (unlike Adam) when the body first takes a breath of air. If we consider the Scriptures in context, we would not conclude that souls enter babies formed in the womb only when they take their first breath. However, for the sake of argument, let's only consider this verse without any other Scriptural context.

If the moment Adam's soul was placed in his body becomes the standard for all of us born of women, why restrict our focus to just God's breath? After all, God formed Adam as an adult. Couldn't we apply the same "logic" to the verse and conclude that people do not obtain souls until they are adults? This makes at least as much sense as the breath hypothesis and also resolves some other theological issues that makes people squirm (you do not need to worry about children going to hell if they die unsaved – if they haven't yet been given a soul, they have no eternal existence at all).

Let's look at another silly application of the same "logic". Adam was a male. If we switched the focus from breath to maleness, the same insular thinking would let us conclude only men had souls. See the problem with this type of sloppy logic?

Considering any one verse by itself leads to sloppy thinking. Unfortunately, such sloppy thinking has horrific results. For example, what if the story is true and Bill Clinton was really convinced by this thought? If he had not been given this fig leaf by the pro-abortion movement, what if he had kept to his religious pro-life upbringing? Given his charisma, Bill Clinton could have potentially overturned Roe v. Wade. Of course, now I'm guilty of making huge leaps of logic myself...

Posted by: Don Quixote | 09/14/2004 - 08:42 PM

Rachel Ann, Ben, Pyro,
I found another site that has much more detail about the Exodus 21 passage.

Posted by: Don Quixote | 09/14/2004 - 08:45 PM

As we are coming up upon Rosh Hashanah and I am suppose to be cleaning/cooking preparing my soul, I'll be brief.

I spoke with my dh who did receive smicha (Orthodox) though he is not a practicing Rabbi; he learned the law as I have earlier stated; that if any harm came it was referring to the woman and her life, not to the fetus.

I also think the concept that a woman who had been judged guilty of a capital crime was executed even if she were pregnant, The life of the fetus was secondary to the pain and suffering of the woman forced to wait for her execution. That a woman condemned to death would be given more consideration for her emotional state than a fetus where there is no issue of guilt states a lot, imho, about the rights they would enjoy in terms of abortion.

Certainly Orthodox Judaism doesn't condone abortion for less than health reasons;imho it is like amputating a leg or going to war. A flippant attitude is disgusting and morally repugnant. All alternatives should be given attention; and I would spend my hard earned dollar (or shekel in my case) on preserving a life if that is what it took; and I believe that is what it will take.

Finally, I don't know if you have ever visited my blog; if you did and went through my archives (most are at my old site,) you would know I am not an advocate of abortion, I think we need to work our way to making abortion obsolete; I used the term dinosaur. I think we would probably defer in how to reach the goal, but perhaps not.

L'shana Tova!

Posted by: Rachel Ann | 09/15/2004 - 03:53 AM
 
 
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