We Support Abortion Rights Because We Are Pro-Life – Behar 5779

My primary rabbinic mission is to make the words of Torah relevant – that is, I want everybody who hears me teach to come away thinking, “Oh, that was useful and meaningful to me today.” I must say that there is so much going on in the world right now that is just begging for a meaningful Jewish framework.

I could speak today about the war of terror on American synagogues that continues, with a firebombing of a synagogue in Chicago and two in the Boston area the previous week.

I could speak this morning about the recent report released by the UN on biodiversity, and the coming extinction of a million species on the planet; coupled with the Environmental Protection Agency’s attempt to roll back emissions controls on power plants by downgrading the estimates of deaths caused by particulate pollution. This one fits nicely with Parashat Behar, since it details the requirement to give agricultural land a shemittah, a seventh-year rest. This suggests a fundamental sensitivity in our tradition to God’s Creation. (Also, my first job after graduate school, in environmental consulting, required that I use computer models of air pollutant distribution in permit applications for things like power plants, so I actually have a little professional expertise there.)

I could speak this morning about slavery, which Parashat Behar describes in detail, and how slavery is still a real thing in our world. There is a great sermon to be given on this subject regarding speaking truth to power, since there were rabbis in slave states in the early 19th century who actually used the words of Torah to support the type of slavery that drove the economy of the American South.

I could speak about the grossly inaccurate retelling of history by Michigan Congresswoman Rashida Tlaib, who suggested on a podcast that Palestinians provided a safe haven for Jews fleeing the Holocaust. (The historical record shows that their leaders actually fought against this, and their efforts led directly and indirectly to the deaths of more Jews.)

Alas, I will not be giving any of those sermons today. Rather, we need to talk about abortion and Jewish law, because as efforts multiply around the country by state legislators to deny abortions to women who need them, we the Jews should know what our tradition teaches us on the subject, particularly since this will, I am certain, be very much a part of our national discourse in the coming years.

As a sort of preamble, let me point out that this is an issue which is important not only to women, but to all of us. While it is true that the progressive Jewish movements have done an admirable job in approaching full egalitarianism in Jewish life, the perception remains, not unreasonably, that Judaism is not entirely fair to women. It is only within the last century, for example, that Jews began celebrating bat mitzvah; it is only within the last half-century that synagogues started calling women to the Torah and counting them as equals in minyan (the quorum of 10 Jews needed for certain parts of religious services), and inviting them to lead services. It is only 34 years since the Conservative movement ordained Rabbi Amy Eilberg, the first female Conservative rabbi.

But the Jewish case for permitting abortion highlights the fact that we are, in fact, “pro-life,” and in particular, pro-women’s life.

What do I mean when I say that we are pro-life? Judaism is an ongoing celebration of life. Every morning we express gratitude for our lives as the first words of tefillah / that emerge from our lips. Every day we thank God for the ability to open our eyes and behold the sunrise and start our day with all of our body parts functioning properly. Every day we ask for peace, multiple times, so that more people in this world will be able to thrive. On this day of Shabbat, we emphasize life through words of prayer, for example A few minutes ago, we recited an Aramaic prayer for “zar’a hayya veqayama,” – living, thriving children, but also we highlight life implicitly by celebrating with meals and family time together.

And not only that: we celebrate life at all of its transitional moments: birth, bat/bar mitzvah, marriage; even funerals and mourning customs are forms of celebration of the life of the deceased. We celebrated life today when our bar mitzvah stepped forward into direct relationship with the 613 mitzvot / commandments of Jewish life.

We are indisputably pro-life. And abortion is understood in Jewish tradition, going all the way back to the Mishnah in the 2nd century CE, as promoting the life of the mother (Mishnah Ohalot 7:6):

האשה שהיא מקשה לילד מחתכין את הולד במעיה ומוציאין אותו אברים אברים מפני שחייה קודמין לחייו יצא רובו אין נוגעין בו שאין דוחין נפש מפני נפש

If a woman’s labor becomes life threatening, the fetus is dismembered in her womb and then taken out limb by limb, for her life comes before (the life of the fetus). If most of the child has emerged [naturally] it is not be be touched, for one life is not put aside for another.

Rashi, writing in 11th-century France and commenting on the Talmud’s elaboration on this mishnah, clarifies as follows (Sanhedrin 72b):

יצא ראשו – באשה המקשה לילד ומסוכנת, וקתני רישא: החיה פושטת ידה וחותכתו ומוציאתו לאברים, דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו, אבל יצא ראשו – אין נוגעים בו להורגו, דהוה ליה כילוד ואין דוחין נפש מפני נפש

This concerns a woman whose labor proves so difficult as to threaten her life…The midwife should reach and dismember and remove it limb by limb. For as long as it has not emerged into the air of the world it is not a nefesh/person and one is allowed to destroy it in order to save its mother. But if its head has emerged, it is not to be harmed, for at that point it is considered born, and one nefesh/person is not to be put aside for another.

And here is Maimonides, MT Hilkhot Rotzeah UShmirat haNefesh 1:9, writing in 12th century Egypt:

הרי זו מצות לא תעשה שלא לחוס על נפש הרודף. לפיכך הורו חכמים שהעוברה שהיא מקשה לילד מותר לחתוך העובר במיעיה בין בסם בין ביד מפני שהוא כרודף אחריה להורגה, ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם

This is a negative commandment: one must not take pity on the life of a rodef/pursuer. Therefore the sages taught: if a pregnant woman’s labor becomes life-threatening, it is permitted to dismember the fetus in her womb, either by a medication or by hand, for it is like a rodef who is pursuing her to kill her. But from the moment his head emerges he is not to be touched, for one life is not to be put aside for another, for this is the natural course of things.

Here, Maimonides describes the fetus as a “rodef,” rabbinic shorthand for a pursuer who intends to kill or injure somebody, suggesting that the pregnancy is physically dangerous. His position is more stringent than Rashi’s, but even so, there are certainly cases where Maimonides permits.

With such sources in our canon, including some of the greatest interpreters of Jewish law, it is clear that:

א. Abortion is clearly permitted under some circumstances in Jewish law, since the fetus is considered a potential life, but not a full human being with the same status as the mother.

ב. The permissibility is dependent upon the mother’s life being threatened in some way.

Now, the complicated part is, what does it mean for the mother’s life to be threatened? As you may anticipate, there are a range of opinions, and they do vary in the Jewish world.

The Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly, which determines matters of Jewish law for the Conservative movement, has published several teshuvot, rabbinic opinions on the matter of abortion, going all the way back to 1980. (In case you are unfamiliar with the way the CJLS works: it is a body of Conservative rabbis who meet regularly to consider issues in Jewish law that are brought up with new situations.)

The CJLS has generally reaffirmed that abortion is permitted in cases in which “continuation of a pregnancy might cause the mother severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective.” I do not need to go into details about what these various types of physical and psychological harm might be, but I am sure that you could consider any number of situations in which a pregnancy could cause such harm, in which the fetus is a rodef, a dangerous pursuer.

Nonetheless, there is no question that even though abortion is not considered murder, it is not a desirable outcome. It should not be used as a means of contraception, where avoidable, and it should not be taken lightly. The CJLS has also affirmed that contraception is always a better path than abortion when pregnancy is not desired.

Halakhah is all about boundaries of kedushah / holiness, and reinforcing those boundaries is an essential aspect of what we do as Jews. If you or anybody you know is facing this question, please know that I am always available as a spiritual and halakhic resource.

Ladies and gentlemen, we are pro-life. And how do we highlight life? By valuing the actual life, and not the theoretical, by prioritizing a mother’s life over that of her unborn child. That is why our tradition understands that abortion, while never the ideal, is sometimes necessary, and should certainly be available, safe, and legal.*

Shabbat shalom.

~

Rabbi Seth Adelson

(Originally delivered at Congregation Beth Shalom, Pittsburgh, Shabbat morning, 5/25/2019.

* After hearing this sermon, a congregant suggested that the message of “we are pro-life” should translate to Jewish support for greater availability of health care for women (as well, one presumes, as for men). While of course I agree, that is a subject for another sermon, on another Shabbat. My goal here was to present Jewish sources on the halakhic permissibility of abortion.