Responding to the Supreme Court decision overturning Roe vs. Wade

 

Note sent to the United Synagogue of Hoboken community, Sunday June 26, 2022: 

Dear friends, 

Many of us have been especially focused on the Supreme Court decision released on Friday that overturns Roe vs. Wade and eliminates a federally assured right to abortion. Already, trigger laws in several states make most abortions illegal currently or imminently.

The comments below are excerpted from my comments during yesterday's Shabbat morning service at the United Synagogue of Hoboken.

There is a lot to say about the issue of abortion from a Jewish point of view.  And there is a lot of disagreement.  But I would like to share with you three fundamental points of agreement across the Jewish spectrum. 

  • In Judaism, the fetus does not have the same rights of personhood as the mother, at ANY point during pregnancy.  The classic traditional Jewish source expressing this is the Mishnah, Ohalot 7:6, https://www.sefaria.org/Mishnah_Oholot.7.6?vhe=Torat_Emet_357&lang=bi&with=all&lang2=en, and the various sources derived from it.  The idea that full rights of personhood kick in at the moment of conception is an idea that can be found in Christian writings, including some Catholic and Evangelical communities, but it is not an idea that you can find in traditional Jewish texts. I have no objection to people holding this perspective based on their deeply held religious beliefs, but it should not be imposed on those who do not share those religious beliefs.

  • Abortion is permitted and even required according to Jewish law if the potential harm to the mother warrants it.    Different rabbis at different times have different opinions about how we understand “potential harm to the mother,” and this is the primary way that different Jewish legal authorities have differed from each other on the question of abortion.  But note that evaluating “potential harm to the mother” is exactly the calculus that any pregnant person contemplating abortion is considering.

  • “Mental health” is part of “health.”  Today fortunately there is an evolving consensus across the Jewish spectrum that we are obviously including mental health as part of what the word “health” means -- and that a concern about the mental health of the person who is pregnant can justify abortion.   

When I talk and teach about Jewish perspectives on abortion, I tend especially to quote Orthodox sources.  Clearly I am not Orthodox, and I don’t necessarily agree with the totality of these Orthodox sources, but there is such obvious unanimity among non-Orthodox Jewish organizations that abortion should remain safe and legal, that any quotations of the statements of non-Orthodox organizations and leaders tend to sound obvious.  But the Orthodox organizations also have consensus on these three points above, though their perspectives are seen as less obvious. 

This is why I want to share the statement of the Orthodox Union from May 3 of this year, when the draft opinion was leaked.  The Orthodox Union is the mainstream Orthodox Jewish organization in the US and it’s the organization that puts the OU on your kosher food.  This is an excerpt from the statement:  (https://www.ou.org/news/statement-by-the-union-of-orthodox-jewish-congregations-of-america-on-us-supreme-courts-potential-overturning-of-roe-v-wade/
Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by Halacha and should be available to all women irrespective of their economic status. Legislation and court rulings -- federally or in any state -- that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life.

At two different points in this statement, there are specific references to how “health” includes “mental health,” in part because some of the bills being considered in some states, if they have exceptions to save the life of the mother, specify that they’re talking about “physical health,” to specifically exclude mental health considerations.  However, the mental anguish of the person who is pregnant has, for centuries, been considered as part of the decision-making criteria for abortion in Jewish law, and the OU felt it was necessary to emphasize this.

Additionally, the OU statement makes it clear that there is a real concern that some state abortion bans would literally infringe on the religious freedom of the Orthodox Jewish community.

Further amplifying this point, in sessions I have taught about abortion in Jewish law, I have included a quotation from a Hasidic medical professional who says:  “It is nearly impossible to create a law that limits abortion and does not put a secular legal ban on some halachically permissible abortions.  What Jewish community would want to continue to live in a place where they are potentially barred from following halacha? Is a community even allowed by halacha to continue living in such a place, if they have the option of leaving?  It appears to me that the Jewish community cannot justify staying on the sidelines of this national American issue. We need to take the side of allowing for safe, legal, available abortions. Jewish law does not align with the Christian right on this issue, and neither should Orthodox Jews.” (https://www.jta.org/2019/05/22/opinion/what-jewish-law-really-says-about-abortion)  

Most people who have abortions do not make this decision cavalierly.  It is almost always a “pro-life” decision in the most literal sense, in that it is a decision made out of anguished concern for the pregnant person’s health and wellbeing, or for the needs of other family members, or of potential future children. This has been reinforced for me in so many conversations I have had with people who are contemplating abortion or have had an abortion. And the spectre of a country where women are scared to get pre-natal care, where every miscarriage is treated as a potential criminal investigation, and where doctors hesitate to perform abortions that they believe are necessary to save the life of the mother (because they could be second-guessed after the fact by other doctors, or non-doctors, who suggest that the abortion was actually not the only way to save the life of the mother, potentially resulting in doctors serving jail time for making their best professional judgments on behalf of their patients), sounds terrifyingly dangerous.

Some of you know that my brother Mike works as the business and development director of a health care center in Virginia that provides abortions as well as other health care services.  He has also volunteered for many years as a clinic escort, helping clients to walk into the clinics and giving them the strength to walk through the lines of protesters calling them vile names and assuming the worst about their intentions and their integrity.  Shortly after I heard about the Supreme Court decision, I contributed in his honor to the National Council of Jewish Women’s Abortion Access Fund, https://www.jewsforabortionaccess.org/fund, which supports a long-standing network of organizations that give guidance and financial support to women nationwide about their options and provide financial assistance to those seeking abortions.   I do not presume that everyone in our community agrees with what I have written -- but for those who do, this may be an example of tangible action that can make a real difference at a difficult time. 

I am listing some additional links and articles below.

With best wishes for health and strength,

Rabbi Rob Scheinberg


some links for additional reading and listening:
 
 
  • Rabbi Elhanan Poupko, September 2021:  https://blogs.timesofisrael.com/texas-abortion-law-an-assualt-on-orthodox-judaism/  -- a critique of the Texas abortion law from an Orthodox perspective.  Subtitle:  “This ban is not really a pro-life stance; rather, it is forcing fundamentalist Christian beliefs on the many who do not share those beliefs.”    ( I am not Orthodox, but I share these Orthodox writings because most people reading this already know that non-Orthodox Jews are overwhelmingly likely to take the pro-choice perspective.) 







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