Abortion in Judaism – Shoftim 5772

I imagine you heard about the particularly insensitive, offensive, and misguided comments by Missouri Representative Todd Akin earlier this week.  Just to review, in case you missed it, he said in an interview with regard to his position on abortion in the case of rape that pregnancy in such situations is “really rare” and that “if it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”  He claimed that this was based on something a doctor had said.
These comments prompted a frenzy over the past week, in which the Republican Party denounced Akin and asked him to step out of the race, and individuals and groups throughout the media and across the political spectrum jumped in.  Akin later apologized for his use of the term “legitimate rape,” claiming that he had misspoken, and was really talking about forcible rape.  He also admitted that rape does sometimes result in pregnancy.  But he reiterated his opposition to abortion.
In fact, the American College of Obstetricians and Gynecologists this week stated that, “each year in the U.S., 10,000 to 15,000 abortions occur among women whose pregnancies are a result of reported rape or incest.”  The number that are carried to term is unknown.
Setting aside the Representative’s inflammatory comments, and his apparent ignorance of basic reproductive science, his comments raise questions that Jews often wonder about.
What does Judaism have to say abortion?  Do the circumstances matter?  What about in the case of rape?
This issue also presents an even broader question:  On an issue like abortion, which has come to be such a divisive public policy issue, how should our community posture itself?
Regarding the question of abortion according to Jewish law, the Torah, in the Book of Exodus, presents a legal situation that helps us understand the issue.  If two men are fighting, and one of them accidentally strikes a pregnant woman standing nearby, such that she suffers a miscarriage, the punishment for that man is a fine.  It is not considered to be murder, because the fetus does not yet have the status of being a person.
Based on this, the Rabbis of the Mishnah, two thousand years ago, discuss a situation in which a woman is going through a difficult labor, such that her own life is at risk.  When that happens, an abortion is to be performed because the life of the mother takes precedence.  Once a majority of the fetus’s body has emerged from the womb, however, it is considered to be a person whose life is of equal status.
In Judaism, therefore, personhood begins at birth.  The fetus is not a human being, although it does have some status as a “partial nefesh,” a partial life, on the way to becoming a full human being.  Abortion is permitted at any point during pregnancy in order to save the life of the mother.  Over the centuries, there were differences in opinion with regard to how liberal to be in permitting abortions, but nobody disagrees about that basic principal.
In modern times, medical advances and our understanding of human psychology have required us to address concerns that traditional sources could not consider.
The Conservative Movement’s Committee on Jewish Law and Standards has addressed these questions in several different Teshuvot, or Jewish legal rulings.  A 1983 decision held that “an abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective.”*1*
Our concern with psychological harm to the mother grants a lot of latitude to a Jewish woman wrestling with this decision.  Certainly in a case of rape, or some other traumatic situation, a woman should be free to make the decision that she feels is right for her.  But because the fetus still has some sort of status as a potential future person, other reasons for a termination might be problematic under Jewish law.
So Judaism’s stance on abortion is somewhat nuanced.  It’s limited permissiveness is not based on a woman’s right to control her own body, but upon the principal of saving the mother’s life.
On a public issue like this one, in which the impact is on the choices available to individual Americans, and in which Judaism has a particular religious position that would guide Jewish women’s decision-making, what should the Jewish community’s posture be?
Is the abortion debate in America something that Judaism ought to have a say in?
It is an interesting question, because Jewish law falls somewhere in the middle between those who think that all abortions should be outlawed and those who hold that there should be no restrictions whatsoever, and that women should be free to choose.
But there are other issues at stake.  Because many, if not most, of those who would outlaw abortions, hold their positions out of religious conviction.  And so what we have is members of particular religious communities seeking to impose their religious beliefs on every individual in the country.  If this were to happen, it would mean that observant Jewish women facing a tragic situation would not be able to turn to our tradition for guidance.  That right would be taken away, and the decision forced on them by a different religion.
The Jewish experience for thousands of years of living as a minority group under the domination of another culture, often a religiously affiliated culture, should make us particularly sensitive to religious coercion.  In the United States, with its Constitutionally-guaranteed tradition of religious freedom, we are free to practice Judaism in a way that is completely unprecedented in the history of our people, which is is why we should be concerned about attempts to restrict access to abortion.
And because the nuanced Jewish position says that we look at each case individually, and the circumstances that each woman is facing, the Jewish community has an interest in the government not placing limits on abortion access.  It should be left as a decision between a woman, her doctor, and anyone else whom she chooses to consult with, whether a partner, a friend, or a religious counselor.
This morning’s Torah portion, Shoftim, is all about the requirement to establish a society that is governed with a concern for justice.  Tzedek Tzedek Tirdof, we read at the beginning of the parashah.  “Justice, justice you shall pursue.”
In ancient Israel, great emphasis was placed on creating a system protected the rights of individuals, that was fair to all, that provided opportunities for people to advance in life, and that did not favor the rich over the poor.
Ever since, Jews have been involved in this pursuit of a just society.  This was true when Jews had autonomy, and it was also true when Jews were living as citizens in the countries in which they resided.
That is why we have a special awareness of how a religious majority can impose its tyranny over other groups.  For that reason, it should be of particular concern to the Jewish community that the government should not be involved in restricting access to abortion services based on a particular religious outlook.  In some senses, it comes down to a matter of religious freedom, as well as to justice.

*1*CJLS Responsa 1980-1990, p. 817.