Abortion and Jewish law

A reading of the relevant texts reveals that Judaism does not allow abortion in all circumstances.

Illustration of a human fetus. Source: Shutterstock
Illustration of a human fetus. Source: Shutterstock
Bob Zeidman and Daniel Slate
Bob Zeidman and Daniel Slate

There seems to be widespread misunderstanding of what Jewish law says about abortion. Is it a sin? Is it permitted? Is it permitted only under certain circumstances?

Since the overturning of Roe v. Wade, many Jews, including Reform and Conservative rabbis, have stated that Judaism allows abortion. The Rabbinical Assembly, which represents the Conservative Jewish movement in America, released a statement saying, “The Committee on Jewish Law and Standards of the Rabbinical Assembly has repeatedly affirmed the right of a pregnant person to choose an abortion in cases where ‘continuation of a pregnancy might cause severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective.’”

Is this actually true? Does Jewish law allow a woman to terminate a pregnancy for these reasons? Let’s look at the arguments and what Jewish law teaches.

First, there is a specific admonition in the Ten Commandments that applies to all humanity, Jew or gentile: “Thou shalt not murder.” The Torah further states, “He who spills the blood of a human in a human, his blood shall be spilled” (Genesis 9:6). The Talmud defines “a human in a human” as a preborn baby in its mother’s womb. Thus, Jewish law, as articulated by the major Talmudic sage Rabbi Yishmael, states that abortion is a grave, capital offense, punishable by the death penalty (Sanhedrin 57b).

However, for millennia rabbis have disagreed with each other on interpretations of the Torah, Talmud and other religious writings. So, let’s look at other admonitions in Judaism.

The Tanakh states, “God said to him: Before I formed you in the womb, I knew you, and before you were born, I consecrated you; I appointed you a prophet to the nations” (Jeremiah 1:5). Here God seems to be stating that an unborn baby is a human being. In Judaism, as in most religions, to murder a human being is immoral and punishable by death.

Some Jews say that the baby has no soul until it is fully born. Yet the Talmud informs us, “A lamp is lit for the unborn child above its head, and the child gazes from one end of the world to the other. … There are no days in which a person is more blissful than during the days in the mother’s womb” (Niddah 30b).

Of course, this seems to be an allegory, but it is also implies that a baby has a soul. Elsewhere, the Talmud asks the question, “When is the soul (neshama) placed into the human being?” It answers, “From the time of conception” (Sanhedrin 91b). The foremost elucidator of the Talmud, Rashi, explains this passage: “Immediately the soul and life are cast into it” (Rashi on Sanhedrin 91b).

Despite this, some Jews reference the teaching that only once the baby’s head has begun to leave the birth canal, or the majority of its body has emerged, is the baby a person (nefesh) (Sanhedrin 72b on Mishnah Ohalot 7:6). There is a problem with interpreting these passages to justify abortion, however, because they are not the full teaching, which concludes, “We do not set aside one person’s life for that of another.” These sources are explaining why the mother’s life takes precedence over the baby if a difficult labor is endangering her life. They do not claim that the baby’s life is worthless, but rather that the baby can be aborted only if it is necessary to save the mother.

But let’s take this reading to its extreme and conclude that a baby is not a person until it physically appears during birth. That means that the baby is part of the mother’s body during pregnancy (Arakhin 7a). In Jewish law, other than the ritual of circumcision, Jews are forbidden to wound their bodies, with exceptions only for healing and survival (Leviticus 19:28, Deuteronomy 14:1, Talmud Makkot 21a, Talmud Bava Kamma 85a, Mishneh Torah Hil. Chovel u-Mazik 5:1). The rabbis explain that we may not disfigure our bodies because they belong to God (Selichot). Thus, even if the baby were simply a “clump of cells,” as some who are pro-abortion claim, Judaism does not allow its removal.

Some Jews cite the Talmud stating that, before it is 40 days old, the fetus is “mere water” (Yevamot 69b). However, the full passage is about when a woman is allowed to eat teruma, food set aside for the priests; it is not about abortion at all. Major authorities in Jewish law teach that one should violate Shabbat to save even a pre-40-day-old fetus (Shmirat Shabbat KeHilkhata 36:2 and 32:3 n.14). This means that even the life of such a fetus is sacred. All of this should give one pause before asserting that Judaism, without reservation, “supports abortion.”

But what if the fetus is “judged by competent medical opinion as severely defective,” as the Rabbinical Assembly puts it? Is there any Jewish teaching that says it’s acceptable to kill an unborn child because it might be “defective”? The majority of halachic authorities agree that it is forbidden to extinguish life because of deformity, including Rabbi Yehuda ha-Chassid, Rabbi Eleazer Fleckelese, Rabbi Isser Yehudah Unterman and Rabbi Moshe Yonah Zweig.

Only a single halachic authority, Rabbi Eliezer Waldenberg in Israel, permitted abortion in the first three months of pregnancy in cases of extreme deformity, and even he disallowed it if fetal movement is detectable. Most contemporary halachic authorities reject his ruling, which itself is built both on a prior minority opinion and on a misreading of another source, which Rabbi Waldenberg later acknowledged.

What about cases in which a pregnancy can result in great psychological stress? Rabbi Waldenberg generalized from a single 19th-century source to equate great physical need with great psychological need. But with rare exceptions, Judaism does not define physical pain, psychological stress or a prospective change in lifestyle as endangering the life of the mother. There are no references in the Tanakh, the Talmud or any other historic Jewish teaching that would make such an equivalence.

Moreover, those who assert such an equivalence are also disrespecting our Jewish ancestors, who truly did have to make difficult and horrific life-or-death decisions during times of extreme physical and psychological persecution throughout the millennia, whether during the Holocaust, the Russian pogroms, the Spanish Inquisition, the Crusades, the massacres in Granada and Fez or the Jewish-Roman Wars and the destruction of the Temples.

It is important to remember that Judaism was the first society to teach the morality of cherishing the sacredness of human life in all of its forms. Unlike the surrounding societies of the ancient world—which practiced child sacrifice and the abandoning of unwanted children to die of exposure—the people of Israel stood for God’s emphatic teaching that all human life has inestimable value. The lesson of Abraham’s test on Mount Moriah was specifically intended to illustrate the immorality of killing one’s child. Perhaps surprising to those who would attempt to find any lenient opinion, Rabbi Waldenberg himself quoted the Zohar (Shemot 3b) saying that those who terminate a pregnancy drive the Divine Presence (shekhinah) out of the world and bring untold destruction to Earth for which no one seems to know the reason.

This brings us to the only clearly permissible circumstance in which Judaism allows abortion—when the life of the mother is in jeopardy. In a comprehensive responsum regarding abortion, Rabbi Moshe Feinstein, widely considered the greatest posek of the 20th century, ruled unequivocally that abortion is murder and only permissible to save the life of the mother. Like all Torah laws that have exceptions in cases of possible death, Judaism does allow abortion under circumstances in which the life of the mother is truly in danger, meaning there is a good chance that she will die if she goes through with the pregnancy.

Since the halachic factors in such a decision are nuanced, Jewish law requires a rabbinic court to be involved. The decision to abort would not simply be up to the mother. She must seek the guidance of a competent and compassionate halachic authority (as Rabbi Waldenberg himself required).

Psychological evaluation can certainly be part of assessing the risk to the mother’s life, such as a serious concern from a competent psychiatrist or psychologist that the mother will commit suicide if a pregnancy is carried to term. We cannot emphasize enough: When it is a matter of saving the mother’s life, abortion is not only permitted, but required by Jewish law, consistent with Judaism’s imperative to value and preserve human life.

Judaism encourages discussion and debate and the thoughtful application of Jewish law as technology and society changes, using the traditional halachic process. But when someone states that Jewish law allows abortion without any qualification, that is unequivocally a misrepresentation and distortion of Judaism.

Bob Zeidman is the creator of the field of software forensics and the founder of several successful high-tech Silicon Valley firms.

Daniel Slate is the co-author of The Architecture of Privacy.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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