Jewish Law Invites Complex Questions On Abortion
Members of the National Council of Jewish Women march in protest after the Supreme Court overturned Roe v. Wade in June 2022. Photo via NCJW.
On any given day, Michael Broyde fields an average 60 questions about Jewish law from people around the world seeking his opinion as an Orthodox rabbi, former rabbinic judge and current academic director of the Law and Religion Program at Emory University School of Law.
“Most of us no longer live in a small shetetl (village_ with no internet where we must ask the local rabbi questions,” Broyde said. “(People) will go looking for the right posek (expert in Orthodox Jewish law) to ask their questions to.”
Orthodox Judaism requires members to consult with a rabbi on questions about Jewish law. Rabbis typically spend many years studying the law and spiritual texts. They are uniquely placed to answer these questions, which span from mundane queries around kosher food to the most serious and complex questions that can have deep and long-lasting effects on the person seeking advice.
Every month, Broyde receives at least one question from an Orthodox Jewish woman seeking his advice on whether she can, according to Orthodox Jewish law, proceed with an abortion — a question that does not yet have a rabbinic consensus.
While all life is considered sacred in Judaism, for over 1,000 years, the question about “when life begins” has involved a debate about the interpretation of Jewish texts.
One school of Orthodox Jewish thought interprets that life begins at inception and implantation. Another position asserts that life begins at birth. Yet another school of thought says that life begins at fetal viability.
In response to these interpretations, there are generally three types of rabbinic considerations. One position regards abortion as improper due to the sanctity of the body and the prohibition of wounding oneself, another position regards abortion as noncapital murder, and the third opinion regards abortion as a form of self-wounding and is only considered murder at viability of the fetus.
Rabba Melissa Scholten-Gutierrez, an ordained Orthodox female rabbi who is on the Rabbis for Repro Advisory Group — National Council of Jewish Women, falls into this third perspective. She believes that Orthodox Judaism permits and sometimes mandates abortion in specific cases.
“In order to ensure safe access in these cases, there needs to be legal protection of abortion,” she said, “which is one of the reasons I personally am pro-choice and believe it is important for fellow Orthodox Jews to support pro-choice legislation.”
Since each of the three interpretations prioritize the welfare of a mother, Orthodox Jewish views on abortion often don’t fall into a “pro-abortion rights” or “anti-abortion” binary.
“Even the most stringent believes that the life of the mother takes precedence over the life of the fetus until either the head or the majority of the body comes out,” said Rabbi Jeremy Weider, the rosh yeshivah at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University.
Broyde agrees and believes a woman has a duty to not carry a child to term if it poses any serious risk to her.
“If there is a serious risk to her mental health, this mandates an abortion,” he said. “It is hard to articulate these risks. I would mandate an abortion when the mother’s life is at any risk. Even a small risk to life is grounds for mandating an abortion.”
This understanding of Orthodox Jewish law is the reason that abortion is not uncommon even among the most conservative fringes of the Jewish community, the ultra-Orthodox. In communities where large families are encouraged — with many opting for 10 or more children — some rabbis are becoming increasingly permissive towards abortion. These abortions are often granted in cases where an additional child would be born with disability or genetic abnormalities, which happen more frequently in geriatric pregnancies.
Broyde is not surprised by this trend.
“If we want to encourage people to have 10 children, they will have children until they are well past 40, and if they want to have children when they are way past 40, then they do chorionic villus sampling (to check the baby for genetic or biochemical abnormalities) and may want to abort any children that have defects,” he said.
In the 21st century, rabbis who have experience in this area and understand the difficulties mothers will face in carrying such a pregnancy will often trend more lenient in their approaches to permitting abortion.
“I am fairly confident that in the modern Orthodox community, the two most prominent figures are lenient in situations where the fetus has genetic defects — and where the mother’s life wouldn’t necessarily be threatened, and she wouldn’t necessarily be suicidal, but she would face an adverse situation,” Weider said.
In the U.S., Broyde usually receives questions about the permissibility of abortion before a woman has even conceived.
“At the time they ask the question they are not pregnant, but they are thinking of having more children,” he said. “In those circumstances, the risk of having Down syndrome is real, so women often do not want to be surprised.”
The desire for separation in law
In Judaism there is no requirement to have secular laws that are consistent with Jewish laws. There is an awareness that enshrining secular laws based on religious belief can lead to cases where an accepted — or even required — action mandated by Jewish law would be banned or severely restricted by secular law.
This view of separation of law was clearly demonstrated in the 1970s through debate around legislation that sought to define the standard for “brain death” in America. The Agudah, one of the largest and most influential Orthodox Jewish groups in the U.S., sought advice from Rabbi Moshe Feinstein, one of the most prominent 20th century experts in Jewish law, as to what the Orthodox Jewish response should be. Famously, Rabbi Feinstein preferred not to outline an Orthodox Jewish position at all. He advised the Agudah that the American government should accommodate every religion in their determinations or at least provide a religious exemption from the definition of brain death laws.
“We do not want government regulation on private religious matters,” Broyde said.
The impact of overturning Roe v. Wade on Jewish women
As a result of the overturning of Roe v Wade, there will inevitably be Jewish women across America who — according Orthodox Judaism distilled by their rabbinic authority — would have been entitled under Jewish law to proceed with abortion but will be unable to obtain one due to the law in their local jurisdiction. This could trigger claims of religious freedom violations.
“Countless women across America (and the rabbis with whom they consult with) will have their Halachic needs overruled by the laws of their state,” Scholten-Gutierrez said.
It’s something that Broyde understands well.
“There will be many cases in Halacha that I would recommend an abortion, but the jurisdiction will not allow it,” he said. “I think I would counsel a woman who was going to have an abortion to leave the jurisdiction in a case where Jewish law would allow it. It’s enormous responsibility.”
For now, Broyde remains steadfast in his commitment to upholding both American law and Orthodox Jewish law, to serve the women who seek out his counsel. However, he notes the difference between the two.
“Women ask, ‘Will God punish me (if your understanding is wrong and I have an abortion on your council when I shouldn’t have)?’ I say to them, God will take it out on me, not you. But I cannot say that in the state of Alabama. If you counsel someone to do a (secular) crime (consistent with Jewish law), they go to prison, not you.”
Nomi Kaltmann is an Australian lawyer who writes regularly on politics and religion, with her pieces most often found in Tablet Mag.