When a polarising issue comes up, one expects to hear polarising voices. But nothing quite prepared me for the misrepresentation and over-simplification of Jewish law presented in the mainstream Jewish press over recent weeks. Roe v Wade has been overturned, and many Jewish columnists and opinion writers are falling over themselves to present the Torah as being pro-abortion and thereby somehow also pro-choice. Unfortunately for these writers, the truth is significantly more complex.
Because it is directly relevant to what I am about to say, let me firstly state my credentials. I spent over 10 years studying in Yeshiva and hold rabbinic ordination from the Chief Rabbinate of Israel.
I also hold a PhD in modern Jewish studies. In particular, my research focuses on modern American responsa literature and the interface between Orthodoxy and inclusivism. In other words, I spent years researching the very question of how leading Rabbinic figures respond to issues such as this.
All of which, I hope, allows me to state the facts with at least some degree of authority. Those facts are as follows. In 1973, Roe v Wade established the principle that it was a constitutionally protected right for a woman to choose to terminate her pregnancy. This decision, aside from the question of whether or not it was a legally accurate interpretation of the US Constitution, fell squarely in direct contravention of a fundamental principle of Jewish belief. That belief is the fact that we do not “own” our bodies — God does. And therefore, we do not have an axiomatic right to “choice” when it comes to making decisions which fundamentally alter or damage the human body. Instead, we are enjoined to follow the rules set out by the Torah, as elucidated in the Rabbinic literature, which govern when, how and where we are permitted (or indeed required) to take such action. For example, engaging in highly dangerous activities, such as certain extreme sports, is forbidden. And each precious minute of life for the terminally ill is considered sacrosanct. We are unashamedly and whole heartedly pro-life.
The recent overturning of this decision in Dobbs v Jackson by the US Supreme Court did not, as some mistakenly believe, create a federally mandated restriction on abortion across America. It simply removed the constitutional right to choose to have an abortion. Thus, taken on its own terms, this decision is certainly in line with Jewish tradition.
Critically, however, this does not mean that the likely ramifications of this decision across all 50 states will also fall within the pro-life perspective of the Torah. On the contrary, there is a very real concern that states will now enact laws that directly contravene the pro-life position adopted by Judaism. That is because it is also a clear principle of Jewish law that, when in danger, the mother’s life takes precedence over that of the foetus. A Jewish family living in Texas, for example, may well now be faced with a state law preventing abortion in a scenario in which the Torah mandates it. This is obviously a serious problem. Furthermore, there are significant halachic debates stretching as far back as Rabbi Yair Bacharach (known as the Chavot Yair, 1639- 1702) regarding possible grounds to allow termination in cases of pregnancy resulting from marital affairs or rape. And in contemporary times, Rabbi Eliezer Waldenberg (known as the Tzitz Eliezer, 1915-2006), permitted abortion even in later stages of pregnancy in cases of serious foetal illness such as Tay-Sachs.
As I have written in these pages in the past, Jews have historically fared better in socially liberal societies rather than conservative ones. The potentially negative outcomes of the Dobbs judgment are another illustration of this. Yet, it would arguably be self-centred to therefore hope for a reinstitution of Roe v Wade, relating as it does to something as fundamental as the sacredness of life itself. A society that believes in a fundamental “right to choose” to extinguish life is headed for a very dark place indeed.
As correctly put by the Orthodox Union in its public statements following the decision, we should neither mourn nor overtly celebrate the judgment in Dobbs. Both the absence and presence of Roe v Wade create difficulties for the Jewish community. But the mourning in many liberal Jewish circles over its demise, followed by an attempt to somehow justify this position from the Torah itself, is both misguided and factually incorrect. Hopefully this will go some way to putting the record straight.
Rabbi Dr Yoni Birnbaum is rabbi of Kehillas Toras Chaim synagogue in Hendon, London
