In light of the upcoming senate confirmation hearings on Judge Samuel Alito’s nomination to the Supreme Court, one which I support becuase of his generally favorbale approach on issues which matter to the Torah world, I thought it would be prudent to discuss the Torah’s attitude on abortion. It is rather well known that Judge Alito opposes Roe Versus Wade, the Supreme Court decision in the early seventies that legalized abortion. Most observers believe that given the opportunity he would vote to overturn that decision. The question is, is that a good idea? Is that something the Torah world should support?
The answer is clearly, no. Abortion should remain legal and a matter to be decided by those it directly affects. One might ask, “Why is this so?” After all Halacha forbids abortions... they are clearly Assur. Shouldn’t we be amongst those who call themselves pro-life? The answer should be obvious.
Our Halacha is not “their” Halacha. Those who oppose abortion oppose it in all circumstances, even if the mother’s life is in danger. This is the Catholic Church’s position. They - along with Christian Evangelicals - are in the forefront of the Pro-Life movement that is so determined to overthrow Roe V Wade. We do not go that far in Halacha. They believe life begins at conception. We do not. We consider the mother’s life to take precedence over the life of the fetus. Catholics do not.
When a mother’s life is in danger during a pregnancy an abortion is not only permissible, it is mandated. The fetus is considered a Rodef... a pursuer... which the Torah commands you kill before it kills. This is similar to the concept of justifiable homicide in the American system of Justice.
Unlike the pro-life forces we do not consider the fetus to be “life”. It is only “potential life”. As such any abortion, even those which are Assur are not considered murder.
There are many other scenarios where those who are pro-life, well intentioned though they may be, would forbid abortions where the Torah may permit it. For example, the first 40 days after conception is a relatively lenient period when it comes to abortion.
The Gemarah refers to the fetus in this period with terms like Maya B’Alma... plain water. Poskim generally are much more lenient about abortions during this period. And even post forty days, there are circumstances where Halacha allows for abortions and those who are pro-life would not.
There is one at least one major Posek, Rabbi Eliezer Waldenberg (the Tzitz Eliezer), that allows abortions well into pregnancy for Tay-Sachs babies. In some cases the psychological health of the mother may be a factor if a pregnancy carried to term would cause a depression so severe that it might induce suicidal actions pre... or even post partum.
If Roe V Wade is overturned those and other scenarios may become problematic for Torah Jewry. If abortion is made illegal it would at best put obstacles in the way of any woman who received a Heter for an abortion or - worst case scenario - not allow them at all!
There is of course another side to this issue. There are those who argue that overturning Roe V Wade would overturn the vast amounts of abortions in this country that are done primarily as form of post conception birth control for unwanted pregnancies, surely an immoral reason to do so.
This is true. They further argue that overturning Roe V Wade would not hamper our rights to have an Halachik abortion when it is needed. And finally they say it puts us on the right side of the moral issue. We as a Torah community need to present ourselves as pro-life, not pro choice, the latter a decidedly immoral stance. The very phrase “pro-choice” makes it sound like we are for abortion on demand for any reason.
I do not agree. Former President Clinton once characterized his position on abortion in the following way: Abortion should be made safe, legal, and rare. This is my position. We as Jews need to support the procedure and advocate keeping it legal, while at the same time clarifying to the world what our true position is.
Now is not the time to go back to the coat hanger days. We need to be a light unto the nations. That does not mean we rubber stamp the Pro-Choicers. It means we tell the truth about what the Torah really says and keep abortion safe, legal, and rare.
