With a subject like abortion, where people are easily controlled by their passions, it becomes easy to base our opinions on what we “feel” as opposed to logical thinking about the issue.  Thousands of years ago, Jewish Sages were dealing with the same issue of when/if/how abortion should be permitted or forbidden.  With the national chaos regarding a potential reversal of Roe v. Wade, this ancient wisdom and unique understanding is more valuable than ever.

The ancient Sages were supported by their communities, and so were able to devote great thought about many important issues, including abortion.  To understand their conclusions, the entire argument must be followed.

In Judaism, there is a huge importance placed on pro-creation, based on the blessing found in Genesis 1:28 that we “should be fruitful and multiply” that is repeated to Jacob (Gen 35:11).  But we also believe that sexuality is not only for pro-creation, but for pleasure based upon the words of Exodus 21:10, “a man must not diminish his wife’s duty of marriage”.  It is accepted as far back as 2000 years ago that the obligation to pro-create is upon the man (the commandment is given to men), and not to women. 

“The man is required to be fruitful and multiple, but not the woman.” (Mishna Yevamot 6:6).  This is a recognition of a woman’s rights, and a man’s responsibility.  It is her body, and she should not be forced to make a decision between having children or being celibate.  In Judaism, while there is a commandment for pro-creation, there is also a commandment for pleasure, and so no argument can be devised against or for abortion based on human sexuality being used only for the purpose of creation (this is different than many other faiths).   

The traditional set of laws regarding abortion begin with the legal status of the fetus.  The Talmud clearly states, “the fetus is regarded as one of the limbs of the mother” (Gittin 23b).  This understanding is based on specific biblical understandings.  If an animal is bought, and then found to be pregnant, the future animal belongs to the new owner. (Talmud Bava Kama 78a).  If a pregnant woman converts, her child does not have to go through conversion upon birth (Talmud Yevamot 78a), and a fetus has no rights of acquisition (Talmud Bava Batra 142a).  Most importantly, it says in Exodus 21:22 that if a pregnant woman is hurt by a man so that her unborn baby dies, the man is to be punished by paying “what the judges determine”; but if that she dies then the perpetrator is executed.  The death of a fetus is a tort charge, punishable by monetary relief; while the death of a mother is a capital crime.  This biblical text demonstrates that killing a fetus is criminal, although not a capital crime.

At first glance, it might seem that since the fetus has no legal rights, abortion would be allowed in any instance.  This is not the case.

From the time of ancient Sages through the Middle Ages until today, it is a Jewish law that a person has no right to inflict damage upon the human body, even upon himself.  We are responsible for every part of our body as a Divine gift.  Based on this understanding, since the fetus is considered a “limb” of the mother; abortion by choice is forbidden because it is equivalent to hurting one’s self.  

With rights always comes responsibility, and so from a traditional Jewish perspective, abortion is criminal without basing the argument on anything to do with the rights of the fetus.  This part of the argument is based entirely on the rights and responsibilities of the woman.

But Judaism and the Rabbis of 2000 years ago additionally take other ethical considerations into the decision making process, and has a concept known as “secrets of God”.  This is the understanding that there are certain issues that we can theorize about, but can never really know for sure.  They are not unknown, they are unknowable. 

One of these secrets is “ensoulment”:  at what point does the soul enter the body?  There is a lot of discussion and varied opinions on it among the Sages and texts.  Some say that ensoulment happens at conception; others at 40 days; and still others say that there is no soul until the crown of the baby is exposed. 

Although it is now accepted as Catholic dogma that ensoulment occurs at conception, this was actually not part of Church doctrine until the influence of the Pythagorean Greek movement in the third century by Father Tertullian; was confirmed by St. Gregorty of Nysa in the 4^th century; and accepted by Augustine in the 5^th century.  Even into the 6^th century, the famed Justinian Code exempted abortions any time before 40 days. 

But in Judaism, we recognize that the ensoulment is a secret of God, and we do not make legal distinctions based on something that is unknowable.  So even though the fetus is considered part of the mother, our Sages allowed for abortions if the mother’s life was endangered (Talmud Sanhedrin 72b), in the same way that an arm may be amputated if it puts the mother’s life at risk.

This concept of the fetus being a life-threatening risk to the mother is called a “rodef”, or “pursuer”.  If the fetus is threatening the life of the mother, it may be aborted based on this concept, even into the third trimester.  Although elective abortion is a crime as we have shown, the life of the mother is more important than the extension of her through the unborn baby.

But this too has limits.  As soon as the greater part of the head has emerged, or the completion of 36 weeks, the baby is now considered its own life and may not be touched, for we “do not set aside one life for another” (Sanhedrin 72b).  At that point, even if the birthing process is suddenly life threatening to the mother, we do not allow the child to be aborted.  Who is to say that the baby is threatening the mother’s life at that point, and not the mother threatening the newborn baby’s life?  Solutions other than abortion must be attempted since they are at that point, two separate lives.  “We must save her by other treatments.” (Pahad Yitzhak).

Remembering that the fetus is considered a limb of the mother…this understanding is ALL about women’s rights and not the fetus.  In the same way that you would not cut off your arm because of a scratch (although you might have to amputate because of a severe injury or sickness in order to live); we are not allowed to abort a fetus because it is inconvenient.

Judaism also recognizes that psycho/emotional wellbeing influences physical health, and if a woman’s physical life was truly endangered because of her psycho/emotional state, then abortion could in theory be permissible. There are currently many modern liberal Rabbis who use this argument to justify elective abortions.  While this can theoretically be true, it is an extremely rare case (possibly incest or rape) where a pregnant woman’s distress is so great that it would cause her physical death.  A rodef is not a pursuer with intent to harm someone emotionally, but exclusively a physical threat to life.

Understanding this basic principle, in conjunction with the legal status of the fetus, makes it clear that ethically it is ludicrous to abort a fetus unless there is a real risk to the mother’s physical life.

There is the additional obligation (for both men and women) to not diminish the Divine image.  By needlessly amputating an arm, or by needlessly aborting, the Divine image is being diminished as a limb is being needlessly removed.  Only in the case of a clear threat to the mother’s life, either through physical danger or a psycho/emotional danger that is so great that it will cause the death of the mother, is abortion allowed.

By removing the issue of ensoulment, the entire debate is one revolving around not only a woman’s rights, but a woman’s responsibilities.  If the baby is not a rodef, an actual pursuer of the mother’s life, then abortion is prohibited.  If the baby is a rodef, then abortion is permitted even into the third trimester.  But once the baby is either at 36 weeks or the crown is visible, abortion is not allowed in any circumstance.

Abortion is never to be used as a form of birth control.  Even in the horrible cases of rape and incest, the question is whether the pregnancy and birth will cause the mother to die (being so emotionally disturbed that she is suicidal).  While non-therapeutic abortion is clearly not a capital crime of murder, it is a crime nonetheless…because of the woman’s, not the fetus’s rights.

If looked at through this traditional Jewish lens, abortions are not permitted without reason at all, let alone in the third trimester as is the proposed laws in some states.  Similarly, it is ridiculous to prohibit all abortions without exception, as abortions are required if there is a legitimate threat to the mother’s physical life.  Both positions, from the Jewish perspective, are too “absolute”, and miss the mark entirely.

There is a saying that two Jews equals three opinions, four rabbis, and five synagogues:  a demonstration of the cultural bias to look at multiple perspectives on any issue.  But the traditional Jewish view is one that has a value to be looked at by all sensible people, especially during these passionate times.  The debate is not one of “pro-life vs. pro-choice”, but rather “what are the rights and responsibilities of a woman in making choices”.  Abortion is never to be used as a prophylactic, and only used in cases where the mother is likely to die.

I encourage all of us to explore these and other arguments on both side of the issue carefully, and to embrace that all women have the right to make a choice…but one that not only takes into account their rights, but their inherent responsibilities.

Rabbi Michael Barclay is the Spiritual Leader of Temple Ner Simcha in Westlake Village (www.NerSimcha.org), the author of “Sacred Relationships:  Biblical Wisdom for Deepening Our Lives Together”, and can be reached at Rabbi@NerSimcha.org

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