Rav Shai's Torah on the Grow

The categories that animate America’s struggle over abortion rights do not fit Judaism’s perspective on ending fetal life. Judaism is both pro-life and pro-choice; but Judaism is neither “pro-life” nor “pro-choice.” These policy labels get abused to the point where opponents caricature one another as being exclusively in favor of the fetus’ right to be born or the woman’s right to abort. Life is messier than slogans. 

As a Rabbi, I can speak to Jewish law better than Supreme Court decisions. But consider this. If states prevent abortion after the sixth week of pregnancy, that will be a problem for Jews in those states. Judaism permits abortion in cases where the fetus has a severe abnormality. Among the diseases to which Ashkenazi Jews are disproportionately predisposed is Tay-Sacks, a degenerative disease affecting the brain and spine. Average life expectancy for sufferers is between two and five years.

With advances in medical technology, Tay-Sacks can be established as soon as the tenth week of gestation. That might be four weeks too late for an abortion in certain states. Here’s an American legal question: can a state prohibit the free exercise of religion? Will I be able to write a note to a doctor, on my Rabbinic note pad, exempting my congregant from the state’s anti-abortion law that infringes on her religious practice?

The differences between Jewish and Christian attitudes toward feticide are rooted in the biblical languages of the two faith communities. The Hebrew of Exodus 21:22-23 distinguishes between the penalties for accidental feticide and accidental homicide. Although both are crimes, the death penalty is reserved for perpetrators of homicide. The Greek Septuagint distinguishes between the penalties for the feticide of an unformed fetus and a formed fetus. Before the fetus is recognizably human, the offender pays a fine; once the product of the inadvertently caused miscarriage has the form of a baby, the penalty for the negligent offender is death.

Perhaps the penalty would be different had there been intent to commit feticide. The foundation document of the Talmud, known as the Mishnah (c. 200), considers this question. The scene occurs on the birthing stool of a woman having difficulty in labor. The midwife determines that the only way to save the mother’s life is by extracting the fetus, if need be, limb by limb. But once the head and shoulders of the baby have emerged, then the midwife is obligated to do her best to save both patients. “One may not set aside one life for another.”

The image is graphic, and the point is clear. There is certainty that the woman is alive, but the same cannot be said of the unborn child. If a decision must be made, certain life has a higher priority than uncertain life. At any point during pregnancy or labor, there is a chance that the life inside the woman will fail to come to fruition. Only when the majority of the baby has been birthed are their two lives considered equal under Jewish law. Later rabbis understood from the Mishnah that if a woman feels her life threatened by bringing her fetus into the world, there is license to commit the crime of feticide.  

Over the centuries, the rabbis recognized that some women feel threatened at the thought of carrying their fetus to term. Perhaps she can’t imagine mothering a child destined to die within five years, or a child who is the product of rape, incest, or adultery. Perhaps the woman is in an abusive relationship and is terrified of adding another soul to the family dynamic. The rabbis were pro-woman—they wanted what was best for her mental and physical health.

Life is messy, and there are very few rules that the rabbis believed should never, under any circumstances, be broken. Feticide can be criminal, but when an abortion is deemed to be the better option, the rabbis see it not as a crime but as an act of self-preservation. Therefore, access must be available. And who decides if it is the better option? “The heart knows its own bitterness” (Prov. 14:10).