The nomination of Brett Kavanaugh to the US Supreme Court has brought to the fore the question of his attitudes toward abortion and the possibility of overturning Roe v. Wade, a key Supreme Court decision on this issue.
Predictably, opposition to Kavanaugh aligns with a “pro-choice” position and with Democratic partisanship, whereas support for Kavanaugh aligns with a “pro-life” position and Republican partisanship.
Unfortunately, this had led to attempts to shoehorn halakhah (Jewish law) into the typical “pro-life” or “pro-choice” position and, more importantly, to oversimplifications and distortions of what halakhah has to say about abortion.
Indeed, this essay is a response to precisely such an oversimplification, best exemplified by Ben Shapiro’s recent tweet: “Virtually every major Jewish halakhist of the modern era has barred abortion except when the life of the mother is threatened. Don’t try quoting the Talmud at me. You just don’t know enough.”
Virtually every major Jewish halakhist of the modern era has barred abortion except when the life of the mother is threatened. Don’t try quoting the Talmud at me. You just don’t know enough. https://t.co/fxcITgIBSm— Ben Shapiro (@benshapiro) July 10, 2018
In response, I tweeted a list of citations to the works of halakhists who permit abortion in cases where the mother’s life is not threatened. That is, Shapiro listed a single exception to the general halakhic ban on abortion, and I responded that this exception is far from the only one.
The purpose of my tweets was not to take a position on American policy debates, but rather to dispel this gross oversimplification of traditional halakhah. It certainly was not to argue that there are halakhists who permit abortion in all cases, i.e., that halakhah is “pro-choice”; a cursory look at any of the sources cited would show clearly that such a position is unsustainable.
However, when addressing highly sensitive matters of life and death, it is extraordinarily important to acknowledge the complexity of issues, even when limited to 280 characters.
Unfortunately, even as Shapiro later modified his position, tweeting that “no mainstream halachik (sic) authority supports abortion on demand,” he penned a bombastic article that, while containing little objectionable halakhic material, nevertheless understates the complexity of the issue.
Additionally, his site, The Daily Wire, published an article by a rabbi who, ironically, even more grossly understates the complexity of the issue, claiming that the opinions that broaden the permissibility of abortion are “relatively obscure and minority opinions,” and presumes that one who looks at the issue with nuance is by definition “pro-choice” (“many of the sources relied on by pro-choice Jews”).
This essay, then, is a plea to take halakhah at its full complexity and an attempt to at least outline the contours and nuances of the issue. It will take the format of a series of cases—all difficult, sensitive, heartbreaking cases, starting from the Torah and early rabbinic works, and concluding with cases that were the subject of much discussion in recent times. There will be many links and shorthand references to rabbinic works and a brief bibliography at the end. It is, of course, impossible to encompass this subject with anything less than a book-length treatment, but I hope to delineate the significant differences of opinion among halakhists, show how halakhah cannot be shoehorned into the “pro-life” position or the “pro-choice” position, offer some insight into the way that major halakhists handled an issue of such sensitivity and import, and offer a starting point for interested readers to learn and study more about it.
Case #1: Collateral Damage
This case appears in the Torah itself:
When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life. (Exodus 21:22-23)
If in the course of a fight between two people, a fetus is killed, then the penalty is monetary. If the mother is killed, then the killer’s penalty is death. In other words, the destruction of a fetus is classified as a tort, not a capital crime. And why not? According to the earliest halakhicmidrashim, feticide is not considered homicide because a fetus is not considered “nefesh adam,” human life. This understanding is implied in the Mishnah (Ohalot 7:6) and Talmud, Sanhedrin 72b, and made explicit by the classic medieval commentators: Rashi and Yad Ramah; Nachmanides, Ran, Rashba, and Ritva on Niddah 44a-b; and Me’iri on Shabbat 107b. This approach is likewise taken by later commentators: Maharal on Exodus 21:22; Tosafot Yom Tov and Tiferet Yisrael-Yakhin on Ohalot 7:6; Sema and Arukh Ha-shulhan on Hoshen Mishpat 425; and numerous others.
In contrast, Rabbi Eliyahu Mizrahi argues that feticide is homicide, but that the killer of a fetus is exempt from punishment on technical grounds.
Even according to the majority view, that a fetus is not considered human life, killing a fetus would not be permitted. It is just not homicide.
Case #2: Saving a Mother’s Life
The classic case of abortion in _halakhah is when the fetus must be destroyed to save the mother:
A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life (“hayav”). If most of it had come out already they do not touch it because we do not push off one human life (“nefesh”) for another. (Mishnah Ohalot 7:6)
The most common understanding of this text is that a fetus becomes a person only when its head emerges. Prior to that, it can be destroyed to save the mother; afterward, mother and child have equal claims to life.
The great Maimonides has a different explanation of this mishnah, one that seems to contradict the straightforward meaning of the Talmud. He explains that the unborn fetus may be killed because it is “like a pursuer”; it is analogous to a case where one person is pursuing another with the intent of murder or rape. In such a case, a bystander may stop the pursuer by any means necessary, even killing.
By comparing the fetus to a pursuer, Maimonides seems to be saying that without that justification, feticide is akin to murder. This is how the great twentieth-century halakhistRabbi Moshe Feinstein understands Maimonides.
At the same time, there are over a dozen other explanations for Maimonides’s curious wording. Rabbi Hayim Ozer Grodzinski, the leading Lithuanian halakhist of the early twentieth century, notes that in our case, the birthing process had already begun, so the fetus has already attained a degree of personhood. Before that, however, even Maimonides would agree that “the fetus is a limb of its mother,” and its destruction is not murder.
Other latter-day commentators (Rabbi Nahum Rabinovich, Yad Peshutah ad loc.; Rabbi Shneur Zalman Fradkin; and Rabbi Isser Zalman Meltzer show that Maimonides uses similar wording, “like a pursuer,” to describe why it is permissible to jettisoned cargo from a sinking ship. The two cases are analogous: just as non-human cargo may be cast overboard to save human beings, so too a non-human fetus may be destroyed to save human life.
Among the classical halakhists who interpreted Maimonides differently are Rabbi Yair Hayim Bacharach, Rabbi Ezekiel Landau, and Rabbi Joseph Teomim. Among twentieth-century authorities: Rabbi Yehiel Yaakov Weinberg (Seridei Esh, Hoshen Mishpat 162:12); Rabbi Abraham Isaac Kook (Ezrat Kohen, omissions, pp. 398-9); and Rabbi Eliezer Waldenberg.
Thus, while the Mishnah states that a fetus may, or must, be killed even just prior to birth to save the mother’s life, the corollary, that a fetus may only be killed to save the mother’s life, is not true except according to a handful of Maimonides’s interpreters.
Case #3: Saving a Fetus on Shabbat
Almost every prohibition in the Torah is set aside in order to save a life. This, then, would seem to be a good test case for understanding the status of a fetus; if it is permissible to violate Shabbat to save a fetus, it would seem to indicate that it is a “life”. If not, then it would be clear evidence that it is not considered a life. In fact, the overwhelming majority of halakhic opinion permits the violation of Shabbat to save a fetus, which seems to strengthen the connection between abortion and murder. Rabbi Feinstein uses this equation to bolster his view that feticide is a form of homicide.
However, several medieval commentators (on Niddah 44a) invoke another Talmudic principle: “Violate one Sabbath in order to observe multiple Sabbaths.” In other words, even if the fetus is not considered enough of a life to warrant the violation of Shabbat, its potential life, the fetus’s potential to observe a lifetime of Sabbaths in the future, gives license to violate Shabbat to save it in the present. This rationale yields the same practical conclusion—Shabbat is violated to save the fetus—but without determining the fetus to be a full-fledged human life. It is on this basis that Rabbi Shmuel Wosner strongly rejects Rabbi Feinstein’s reasoning, concluding that abortion does not even smack of murder and acknowledging that his line of reasoning yields permissive rulings in certain cases.
Case #4: “Dead Woman Walking”
A Mishnah in Arakhin (1:4) states:
If a woman is about to be executed, they do not wait for her until she gives birth. But if she had already sat on the birth-stool, they wait for her until she gives birth.
A fetus is considered part of the mother, and just as she is executed, so too the fetus is executed. Once the mother has “sat on the birth-stool,” as Rashi explains, the fetus has become a “separate body,” and the execution is delayed until after the mother has given birth.
The Talmud asks: “Isn’t it obvious” that the execution should not be delayed on behalf of the fetus? This very question indicates that the Talmud takes for granted that the fetus is not a separate life. The Talmud then explains that the executioners abort the fetus before executing the woman, so as to spare her the indignity of the fetus continuing to move around in her dead body. Here is an instance in which an abortion is performed for reasons other than to save the mother’s life.
If we can sum up what we have seen so far, the balance of evidence we have seen so far indicates that a fetus has an intermediate status: On one hand, it may not be destroyed wantonly, and one must violate Shabbat in order to save it. On the other hand, it is not yet a nefesh, a human life. Notwithstanding several major dissenting opinions, its termination is not homicide, and there are cases where it is permitted even when it will not save the mother’s life.
Do Non-Jews Have the Same Laws? An Important Caveat
There are “Seven Noahide Commandments” that apply, according to halakhah, to all of mankind. One of these seven commandments is homicide, as God said to Noah after the Flood:
One who sheds the blood of man, through man shall his blood be shed. (Genesis 9:6)
Not only is homicide prohibited, but its penalty is death. The Talmud (Sanhedrin 57b) expands the prohibition of homicide to include feticide. Moreover, several pages later, the Talmud posits: “There is nothing that is permitted to a Jew that is forbidden to a gentile” (Sanhedrin 59a). It follows that if abortion is forbidden for non-Jews, it is forbidden for Jews as well (Tosafot ad loc., s.v. “leika”). The Tosafists also consider the possibility that the corollary is true as well: in cases where Jews may perform abortions, such as to save a mother’s life, non-Jews may do so as well. A responsum of Rabbi Isaac Schorr from 1755 explains the Tosafists’ thinking:
It is unthinkable that the Torah would not consider a fetus to be human life (nefesh) for us [Jews], but for them a fetus would be considered human life. Such a thing cannot be sustained by reason.
A leading contemporary halakhist, Rabbi Eliezer Melamed, takes the logic of the Tosafists even further, ruling that any instance in which abortion is permitted for Jews, it is, by definition, permitted to non-Jews as well.
This view is innovative and far from consensus. Nevertheless, significant minority views can have major public policy implications for how Jews relate to secular abortion law.
Case #5: Tay-Sachs
The last two sets of cases were first addressed as early as the seventeenth century, but have become a major subject of discussion in our times.
The first pertains to instances in which there is concern that the fetus will be diseased or deformed, or has in fact been positively diagnosed with an illness or defect. The case of a fetus diagnosed in utero with the genetic defect that results in Tay-Sachs Disease was the subject of a major twentieth-century dispute between Rabbi Moshe Feinstein and Rabbi Eliezer Waldenberg.
Rabbi Waldenberg (and Rabbi Shaul Yisraeli) went as far as to permit abortion even in cases of indefinite diagnosis, and even when the fetus had the prospect of a very difficult and challenging but long and full life. Rabbi Feinstein prohibited aborting even a Tay-Sachs fetus unless it was “almost certain” that the mother would die of grief otherwise, on the grounds that it is a form of murder.
Others, such as Rabbi Shlomo Goren, Rabbi Yehiel Yaakov Weinberg, Lord Rabbi Immanuel Jakobovitz, and Rabbi Unterman ruled that abortion could be permitted in the interest of the mother’s mental health. In other words, they did not think that a diseased fetus is not worth preserving, but held that it could be permitted to relieve the mother’s suffering in the present.
Several other major recent halakhists, such as Rabbi Shlomo Zalman Auerbach, Rabbi Joseph Soloveitchik, Rabbi Yosef Shalom Elyashiv, and Rabbi Aharon Lichtenstein agreed in principle that only a threat to the mother’s life would warrant abortion. However, the practical record shows something more complex. There are credible reports of Rabbis Soloveitchik and Elyashiv permitting certain abortions in order to spare the mother extreme, if not directly life-threatening anguish. Additionally, there are equally credible reports that Rabbis Lichtenstein and Auerbach referred questions to Rabbi Waldenberg, knowing that he would rule permissively in such scenarios.
A lecture on this topic by Rabbi Hershel Schachter (see minute 26 here), a leading contemporary halakhist in the US, gives a similar indication: He tells a story about Rabbi Auerbach referring a questioner to Rabbi Waldenberg, implying that he, too, believes that such an abortion is not permissible but nevertheless refers petitioners to permissive halakhists.
Case #6: Promiscuous Pregnancy
Rabbi Yosef Hayim of Baghdad (1835-1909), known also as “Ben Ish Hai” after his best-known halakhic compendium, also wrote responsa to communities all over the vast British Empire. On one occasion he was asked whether a woman who became pregnant through an adulterous relationship could abort, as the child born of such a union would carry the taint of mamzerut (illegitimacy) and be forbidden to marry within the community.
Ben Ish Hai does not definitively answer the question. He begins his response by writing: “I do not wish to respond to this issue by giving instructions, neither to forbid nor to permit,” and concludes, “I am not revealing my opinion.”
Before looking at the precedents that Ben Ish Hai cites in the body of the responsum, it is worth noting his reluctance to express his opinion. We saw a similar reluctance with respect to the abortion of deformed fetuses.
The sense is that in cases where the mother’s anguish is the potential grounds for abortion, the answer will depend, to a very large degree, on an honest assessment of the risks to her mental and physical health. Moreover, the stakes of such decisions are very high—potential life and an individual’s long-term health are both at risk.
As such, permission is granted or denied on a case-by-case basis. This is “retail” halakhah — not “wholesale.” Statements akin to Ben Ish Hai’s “I do not wish to respond to this issue by giving instructions, neither to forbid nor to permit” are not atypical.
In the body of his responsum, Ben Ish Hai cites three earlier opinions, two from the seventeenth century and one from the eighteenth:
1) Rabbi Joseph di Trani maintains that abortion is a form of self-mutilation, which is generally prohibited but permitted in the interests of overall health, even when there is no risk to life;
2) Rabbi Yair Hayim Bacharach develops a rationale to permit before ultimately prohibiting on public policy grounds: “to safeguard against the breaches of the promiscuous and those who chase after them.”
3) Rabbi Jacob Emden permits the abortion of a fetus conceived through adultery but prohibits if the mother is unwed or conceived through rape. This is the most idiosyncratic of all views on the general issue of abortion.
Among twentieth-century halakhists, Rabbi Meir Ben-Zion Hai Ouziel (Mishpetei Ouziel, Hoshen Mishpat 4:47), the Sephardic Chief Rabbi at the time of the founding of the State of Israel, rules permissively in the case of a woman who conceived through adultery (but not in the case of an unwed mother). Rabbi Waldenberg also argues for permissiveness to relieve the mother’s anguish.
Those who view abortion as a form of homicide would clearly not permit in such cases. Yet here we return to Rabbi Schachter’s oral presentation. He tells the story of a student in a religious school who became pregnant. The school threatened expulsion. The student was from a non-religious family, and there was concern that expelling her would mean she would fall into a life of non-observance.
Rabbi Schachter implies that an abortion was carried out, though he is coy about whether or not he agrees with the ruling. Like Ben Ish Hai, he intimates that he thinks a lenient ruling is warranted. In this case, the logic of R. Bacharach is inverted: the abortion, paradoxically, was in the interest of preventing the long-term breach of observance. Nevertheless, we once again find a halakhist who is wary of issuing a definitive ruling in cases that are so connected to social and psychological consequences for a particular person in a particular context.
It should go without saying that this treatment did not address all of the relevant halakhic issues. It did not address the key question of whether the stage of pregnancy makes a difference (see, for example, Rabbi Ovadiah Yosef, Yabia Omer, Even Ha-ezer 4:1); differentiate between direct surgical abortion, inducement of early labor, and other methods; or relate to a host of other cases in various gray areas. As noted, a full treatment of this issue would be book-length.
Nonetheless, the complexity of the issue is evident.
We would be wise to take our cues from those halakhists who were reluctant to make definitive pronouncements on the permissibility or wrongfulness of abortion.
Even statements that are true in the vast majority of cases should be avoided out of respect and sensitivity toward that minority of cases that involve some of the most harrowing emotional turmoil that a person can undergo.
The best answer to the question of whether Jewish law permits abortion remains: It depends on the case, so consult with a competent halakhist.
For further reading:
Rabbi Eliezer Melamed, Simhat Ha-bayit, Chapter 9: “The Termination of Pregnancy”(Hebrew; English forthcoming).
Rabbi Moshe Zuriel, “Abortion of a Fetus Diagnosed with a Terrible Illness,” Tehumin 25 (Hebrew).
Rabbi Dr. Abraham Steinberg, “Abortion in Light of Halakhah,” in Sefer Assia (Hebrew).
Rabbi David Feldman, Marital Relations, Birth Control, and Abortion in Jewish Law https://amzn.to/2Jv58XE, pp. 249-294.