With the Supreme Court ruling overturning Roe v Wade and a return to the Dark Ages regarding abortion rights, I delved into traditional Jewish views on the issue. I was struck by the conflict between public statements on abortion by communal leaders and organizations, and actual halachic tradition. While rabbis and leaders trumpet their support for abortion rights, when you look more closely, such support isn’t full-throated. In fact, it’s restricted for Orthodox and Conservative Jews by historical halachic (Jewish law) traditions.
Rabbi Elliot Dorff, a leading Conservative halachic scholar, offered his interpretation, which highlights the limitations within these two denominations:
…The Conservative movement generally forbids abortion as an act of self-injury. At the same time, when the woman’s life or physical or mental health is at stake, an abortion may be required or permitted, depending on the circumstances. Furthermore…abortions are also permitted if the fetus has a lethal or debilitating disease and the mother responds to that news, after consultation, with an assertion that she cannot mentally tolerate carrying the fetus to term and then either raising it or giving it up for adoption. Non-Orthodox Jews, however, commonly misunderstand the tradition to permit abortion whenever the mother wants one, leading to far too many abortions among Jews, especially in light of the demographic crisis in which Jews currently find themselves.
In the first italicized phrase, it’s important to note that while abortions are permitted for a woman whose “mental health” will be endangered by carrying a fetus to term, there are many cases in which a woman wants an abortion for a myriad of possible reasons, none of which fit this category. And how do religious authorities determine the threshold of mental health necessary to justify an abortion? Of course, today rabbis can find many ways to expand the definition of “mental health” to permit a flexible interpretation of the law. But it’s clear here that there are clear limitations on abortion, of which most Jews are entirely unaware.
Dorff highlights this in the second passage in which he reinforces the notion that “abortion on demand,” that pejorative phrase trotted out by the anti-choice movement is alien to the traditional interpretation of abortion law. I also find troubling the notion of a male rabbi determining that Jewish women get abortions too freely. In the modern liberal era in which most Jews (and non-Jews) live, that choice is the woman’s to make. It should not be the purview of a coterie of most male rabbis to make this determination.
Some Orthodox (male) rabbis attempt to put a positive gloss on abortion restrictions by saying the Jewish attitude is “deep and nuanced.” That’s a convenient way of saying “it’s complicated.” Which is not very satisfying in an era when subtlety and vacillation are overwhelmed by the religious fervor of the anti-abortion right.
In an era when the majority of Jews support the woman’s unconditional right to choose while the tradition doesn’t, halacha must change. Social change pressures the law to adapt. And halacha can be flexible in that regard. But till now, it hasn’t come far enough.
Halacha must endorse a woman’s agency. It must trust women to make such decisions and not make them on their behalf. It must not participate in restricting the rights and freedoms of women. The Reform movement has such a progressive position. Rabbi Danya Ruttenberg, who told Samantha Bee, “in Judaism, abortion is permitted; and where the pregnant person’s life is at stake, it’s required,” reinforces this view.
How Christianity Hijacked the Abortion Debate
The anti-choice movement is led by ultra-conservative religious figures, both evangelicals and the Catholic Church. They articulate their views through a religious lens, while the vast majority of Americans do not view social issues in such a frame. This country has a constitution which enforces a separation between Church and State. It commands that religion not encroach on the political sphere and the political sphere not encroach on religion. This dictum has worked well for the Republic for over 200 years.
But the Christian evangelicals have long chafed at this constitutional protection. In fact, they view it as depriving them of their religious rights to conduct not only their own affairs, but those of every American in accordance with their values. This has led them to erase that separation which, in turn permits religion to overwhelm the secular State and impose its values on it. There are obvious dangers with this approach, not least of which is that it imposes Christianity on non-Christians, who have their own views on this issue. Namely, obliterating Roe v. Wade supersedes any halachic ruling which permits or even demands performing an abortion. In that sense, the religious values of Jews and other religious groups are themselves suppressed, causing a fatal wound to genuine constitutional protections.
Rabbi Dorff highlights this point:
It additionally violates freedom of religion, for in many states abortion will be prohibited in cases in which Jewish law and the stances of many other religious and secular groups, would require it or permit it. It effectively establishes the Catholic view of the fetus in violation of the Establishment clause of the First Amendment.
The Judeo-Christian Fallacy
It’s common for anti-abortion advocates to invoke a so-called “Judeo-Christian” code which justifies their views. This permits them to expand their values beyond Christianity and claim that their own code is part of a wider one embraced by both Christians and Jews. It also harkens back to ancient Biblical teachings, which permit them to conveniently elide current views among Jews. There is no such thing as a Judeo-Christian tradition. It is a concept created by Christians which has nothing to do with real living Jews. We must not allow evangelicals to sweep us together with their narrow views. This offers a history of the ab/use of the term:
The idea of Judeo-Christianity, and “Judeo-Christian values,” is a relatively new one, borne out of World War II and the Cold War. It is a term that has been adapted by many Christians and American political leaders in an attempt to talk about the “shared values” between the Jewish and Christian religions — but in reality, it erases Jewishness and excludes people of other faith backgrounds, particularly Muslims.
Rabbi Dorff does raise an important limitation on halachic tradition in making pronouncements on the issue of abortion. He notes that Jewish tradition has always embraced the notion that civil law and society supersede religious views when they clash. Dina d’malchuta dina hu, meaning “the law of the land is the law:
Our sages (R. Chanina Sgan Hakohanim, Avot 3:2) tell us: “One is to pray for the welfare of the government, for if not for fear of it each man might swallow his fellow.” What the sages refer to is the fear of a society that descends into lawlessness.
But even more importantly, the notion that civil law trumps halacha permits Jews to treat the latter as advisory rather than obligatory. When Jewish law conflicts with our conscience and the laws of the land, we are not bound by halacha. But in the case of the new Supreme Court decision, the law of the land now conflicts with our moral and religious values.
…Jewish law, though…should not be the basis of American law, and neither should the stance of any other religion. This goes back to Thomas Jefferson, who asserted that when Americans overwhelmingly agree on a moral issue (e.g., prohibitions of murder, theft, and rape and positive duties to pay taxes and educate your children), the state may enforce that moral stance as law, but when Americans disagree about a moral issue, the government should leave it to each citizen to determine what is proper.
I would urge rabbis and laypeople to change both attitudes and halacha. I am excluding the Reform movement, which offers a much more progressive approach. All communities, including Jewish, Christian and Muslim should re-evaluate their approaches to the issue. Where there are prohibitions, they should be eased. Where there is full acceptance of women’s right to make these decisions, these denominations should be held up as models for where all religious groups should be on the issue.
A successful campaign for abortion rights
Washington, Oregon and California are forming a 3-state compact. All states in which abortion remains legal should form a compact to coordinate all aspects of abortion including funding patients, abortion providers, legal defense, and lobbying Congress for federal legalization.
There should also be private funding which would create dedicated financial resources (through Planned Parenthood or similar non-profit) to fund women needing abortions with an emphasis on women of color and working women with limited means. It is a special social duty of the wealthy to create a well-endowed fund offering hundreds of millions to support these needs. If they refuse or simply don’t step up, the abortion rights movement should create its own Lincoln Project to remind them of their moral and social responsibilities. There are far too many billionaires who have abused women in their private and/or professional lives (looking at you, Bloomberg & Gates). Jeff Bezos, Tom Steyer, and George Soros, should step up, if they haven’t already done so. There must be ample funds to lobby members of Congress for political support, and to recruit candidates to primary those who fail to answer the call.
Pres. Biden has been mostly asleep at the wheel. His executive actions have fallen flat. They don’t go nearly far enough. In addition, members of the administration like Kamala Harris have warned Democrats that they mustn’t rock the boat, due to the November mid-term elections. This, of course, is totally unacceptable, not to mention a strategic error. Democratic voters would rally to an intensive campaign supporting abortion rights. Not running on this issue is a fatal mistake.
Rhetoric and language: how to change minds and influence voters
The abortion rights movement should develop language used in promotional campaigns putting anti-abortion groups and politicians on the defensive. One example: distinguish between pro and anti-abortion states with deliberately- charged language. States outlawing abortion should be called “outlaw,” “criminal,” or “slave states.” After all, criminalizing abortion is akin to enslaving women.
This is already commonly understood in abortion rights discourse, but can’t be stated enough: given the new sensitivity to sexual abuse in society, the campaign for legalizing abortion should dovetail its message with the Me-Too movement. Just as women have made abuse and abusers a major societal and political issue, abortion needs to be twinned with it. Criminalizing abortion is abuse of women in the same way sexual abuse is. Also, the former prevailing dominance abusers had in the legal and judicial system over their accusers, is gradually shifting toward victims and away from powerful male abusers. In the same way, the abortion rights movement must put the largely male opposition to abortion on the defensive. It must emphasize that powerful white males on the Court, in Congress and in all political forums which regulate abortion, are the problem; while women are the victims. Put women first, not last. This will require a psychological and societal shift in attitudes. The same type of effort mounted by the same-sex marriage movement.
The Supreme Court has now shifted the burden to both Congress and states. It’s unlikely Congress will/can do anything given GOP control of state voting/redistricting and its advocacy of vote suppression. So a coalition should create strategies to promote the issue of abortion rights and attack the opposition through elections/public service messges/social media, etc.
It will require a long-term incremental process of building momentum over years, such as that used by the same-sex marriage campaign. It too faced an uphill struggle to counter powerful anti-gay prejudice and political opposition. Hearts and minds need to be changed and accustomed to the normality of abortion rights. It should be as American as apple pie. Already 60% of Americans oppose overturning Roe v Wade. The abortion rights movement needs to increase that number. It also needs to make politicians pay a price for their opposition. If enough are defeated for their views, others will either fear defeat and become supporters for pragmatic reasons, or because they’ve sincerely changed their minds.
We should also target lobbying groups like Aipac which fund anti-choice candidates like Henry Cuellar and Don Davis, the only two Congressional Democrats opposing abortion. The powerful pro-Israel group also funded 200 GOP candidates who supported the Jan 6th insurrection. The Republican Party is the main political driver of the anti-abortion movement. Aipac’s sole interest is supporting Israel. But when supporting Israel means trampling on women, Jews must draw a line. If Aipac wants to ignore the line it should be made to pay the price. What is more important issue–women’s rights or apartheid Israel? American Jews have already made that choice: a Pew poll found that they ranked Israel 9th on its list of priorities. Jewish groups which oppose abortion, even indirectly, should be shunned.
Silverstein has published Tikun Olam since 2003, It exposes the secrets of the Israeli national security state. He lives in Seattle, but his heart is in the east. He publishes regularly at Middle East Eye, the New Arab, and Jacobin Magazine. His work has also appeared in Al Jazeera English, The Nation, Truthout and other outlets.