Jewish law has always been clear: Emergency abortions are an essential right
Jews might not want religion to influence our laws — but the fight for abortion rights demands every tool we can access. Photo by Samuel Corum/Getty Images
Two things are true about Judaism and abortion.
One: Jewish tradition is very clear that abortion is appropriate when it comes to protecting maternal health, and particularly when it comes to saving the life of a pregnant person.
And two: when it comes to the abortion debate, what Jewish law and tradition have to say about the matter should be of personal and communal consequence, but of absolutely no legal relevance at all.
And yet, in a political landscape increasingly structured by what different religious groups think about abortion — and specifically the adamant objections to it that come from evangelicals and some Catholics — that Jewish tradition might be one of the best tools we have for continuing to fight for reproductive rights.
Jews should be troubled by the Supreme Court ruling that today returned a case questioning whether emergency abortions should be legal in Idaho to a lower court. While many have chalked the decision up as a short-term success, because the legal limbo of the law means that pregnant people in Idaho will for now continue to have access to emergency abortions, it is troubling that the court has declined to enshrine pregnant people’s right to that care in law.
And it is a reminder that, as the Christian right has shaped the most prominent arguments against abortion, Jews who believe in the necessity of free access to the practice must embrace our power to shape arguments in favor of it. It is not just that such a serious matter of secular law should be so profoundly influenced by questions of faith. But as long as it is, we must embrace our faith to fight for what is right.
And as Jews, we know what is right. In April of this year, the Central Conference of American Rabbis — the clergy wing of the Reform movement — reiterated that Jewish law “recognizes abortion as a legitimate and necessary form of basic health care for people at all stages of their reproductive capacity. Judaism has long affirmed that the rights and protections of personhood arrive at birth, not sooner.”
Immediately after the Supreme Court struck down Roe vs. Wade two years ago, the Rabbinical Assembly, the clergy wing of the Conservative movement, wrote of “the halakhic necessity of access to abortion,” adding that it “fiercely opposed efforts that would limit access to abortion or stifle reproductive freedoms in the U.S.”
Jewish teaching in the Mishnah — the commentary that surrounds the Torah — is clear that if a pregnant person’s life is in danger, the solution is to abort the fetus, even when that person is already in labor. Specifically, the Mishnah states “If a woman is having difficulty in giving birth” — leaving her life in danger — “one cuts up the fetus within her womb and extracts it limb by limb, because her life takes precedence over that of the fetus.” (An exception: “if the greater part was already born, one may not touch it, for one may not set aside one person’s life for that of another.”)
And Jewish teaching allows abortion in cases beyond the emergency exemptions written into the challenged Idaho law, which permits abortion only when a pregnant person faces death. For instance, Idaho’s law has a clear exception to its allowance of lifesaving care: if the doctor fears a pregnant person might die by suicide, he cannot not save her life with an abortion.
Yet both the Reform and the Conservative movements are clear that a pregnant person’s mental health should be considered on an equal footing with their physical health. The Rabbinical Assembly in 2021 affirmed “the right of a pregnant person to choose an abortion in cases where ‘continuation of a pregnancy might cause severe physical or psychological harm.’” In fact, no branch of Judaism rules out abortion completely. Both Modern Orthodox and Haredi Judaism center the physical and mental well-being of the mother in deciding if abortion is permissible.
Jews have spent years — decades — arguing that limiting abortion access is an infringement on our religious liberty. Since the Supreme Court struck down Roe, that argument has formed the basis of numerous lawsuits across the country challenging increasingly restrictive state abortion laws. There is nothing new about approaching the fight from this angle. But even so, it is absolutely crucial that we approach the fight, from this well-worn path, with renewed energy.
All the court has done is kick the can down the road.Today’s ruling is really no ruling at all. One can imagine an Idaho doctor hesitating to perform an abortion, even one he or she understands to be medically necessary, out of fear of the legal consequences if someone else asserts that the procedure was not necessary.
Chances are, such a claim would come from someone with an avowed religious interest in ending abortion. Those of us with a similar interest in preserving and even expanding it must embrace the same boldness. Even if we know that our religion really has no place in these laws, at all.
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