The decision last week by the U.S. Supreme Court in the Dobbs v. Jackson Women’s Health Organization overturning the Roe v. Wade abortion ruling has—as we all knew it would once a draft of the majority decision was leaked last month—set off a political firestorm. As polarizing as this issue has always been in the more than 49 years since the original Roe decision, the prospect of the question of abortion being returned to each state legislature as opposed to remaining as a court-imposed national standard, has raised the already elevated temperature on the issue even more than before.
Pro-choice forces are enraged at what they believe is the taking away of a right and what some even claim is the enslavement of women. The pro-life movement is thankful after a half-century of activism on behalf of what sometimes seemed to be a lost cause, but no less determined to defend restrictions or bans on abortions whenever they can prevail in state capitals.
Amid the deluge of hyperbole, furious predictions of political fallout and public protests, what is generally lost amid the noise is that polls have always shown that most Americans have demonstrated a fair amount of moral ambivalence about the issue.
Clear majorities have always been found to oppose complete bans on abortion as well as the overturning of Roe, which many have assumed would lead to that outcome. But it is equally true that there has always been broad support for limits on legal abortion. As with many other issues of public debate, how you ask the question largely determines the way the polls turn out. Many of the same people who have answered that they oppose overturning Roe will—if asked if they support legal abortion after the first trimester or even the 15-week limit that was at stake in the Mississippi law at issue in Dobbs, let alone later after the point of fetal viability—are likely to say they’re for that, too.
That national ambivalence isn’t in keeping with the desires of activists on either side of this battle, who tend to view the issue as a zero-sum game in which one supports the right to end a pregnancy right up until birth or regard the fetus as an unborn child deserving of legal protection from the moment of conception. But it reflects the fact that the question of terminating pregnancies has always been regarded by thoughtful people as one involving perplexing moral choices that are difficult to resolve, especially in the abstract.
The rhetorical escalation that has followed the court’s decision, in which the court is being smeared as attempting the enslavement of women or a new version of the fictional “Handmaid’s Tale” (which is actually being carried out in Islamist countries and not the United States), is not conducive to calm debate. Indeed, the fact that many Americans remain in the middle on the abortion debate has been obscured if not altogether lost. The same is true of the fact that most of the civilized world, including Western European democracies that are often looked to as models by the political left, also have restrictions on abortion that are not unlike those that Mississippi instituted in Dobbs.
It is in that context that the way that some in the Jewish community have sought to frame the issue as one in which Jews are obligated to support abortion under virtually all circumstances is both misleading as well as an unfortunate contribution to an already divisive debate.
There is no disputing that traditional Judaism approaches the issue of abortion very differently from the Catholic Church, or the various evangelical and conservative Christian denominations, that are unalterably opposed to it almost without exception. In Jewish religious law, the life of the mother must always take priority over that of the unborn child. That provides a religious justification for procedures that deal with medical anomalies and life-threatening conditions. Some also interpret the notion that the well-being of the mother must be protected so as to justify a more liberal attitude towards terminating pregnancies.
It is also true that sources in the Talmud do not consider a fetus a full person deserving of legal protections but as a part of its mother until birth. In the first 40 days of gestation, it has an even lesser status.
That is interpreted by liberal Jewish denominations (not to mention non-religious organizations and secular Jews who would otherwise scoff at the idea of looking to the rabbis of the Talmudic period for guidance on any issue, let alone for insights on biology) as proof that Judaism regards the disposition of a fetus as purely a matter of personal autonomy and thus inherently “pro-choice” in the context of the contemporary abortion debate.
Yet at the same time, fetuscide is not explicitly permitted by the same Jewish sources. On the contrary, the idea that individuals have an unfettered right to do as they like with their bodies is alien to Judaism, since the body is considered a vessel that is the property of God. Some Jewish sources regard abortion as impermissible outside of some limited circumstances because of the prohibition of “shedding the blood of man within man.” Since Judaism forbids tattoos, self-harm and suicide, the notion that it supports the “our bodies, ourselves” approach is, at best, debatable.
That is why Orthodox organizations have opposed laws legalizing abortion virtually up until birth with no restrictions, as is the case with laws passed in New York and other deep blue states, while still also opposing any law that bans all late-term abortions without providing an exception for saving the mother’s life.
The idea that Jews are obligated by their faith to support laws that permit it without any restrictions—the position many liberal Jewish groups are now taking in conformity with that of the Democratic Party—is simply untrue.
Still, most Jews, even those who do not regard abortion as simply a matter of choice, do not favor banning it in the earliest stages of pregnancy, let alone in cases of rape, incest or genuine medical emergencies.
The 1992 Supreme Court decision in Planned Parenthood v. Casey, which essentially upheld Roe and was also overturned by Dobbs, itself instituted a fetal viability test that allowed states to implement restrictions based on the viability of the fetus, thereby implying that aborting a viable fetus was a form of infanticide.
With that in mind—and Talmudic precepts and modern declarations of personal autonomy notwithstanding—the arguments about abortion must necessarily be influenced by scientific advances.
In 1973, when Roe was decided, there were no sonograms showing fetal life and movement. Modern medical care now means that fetal viability outside of the womb is possible as early as 21 to 23 weeks into the pregnancy with the real possibility that this figure will continue to shrink.
That doesn’t change the fact that in the last half-century, many Americans have come to believe that terminating a pregnancy is an absolute right under virtually any circumstances. They regard arguments about the constitutionality of the original Roe decision as irrelevant and dismiss any and all talk of fetuses being unborn children regardless of what science (a term that is liberally invoked as determinative when it comes to vaccine mandates or climate change when it is more to their liking) has taught us about the subject.
Still, the same people who share pictures of sonograms of fetuses on social media that they think of and treat it as if they are their unborn children should ponder how it is that the same entity is merely a cluster of cells to be discarded at will if they are not wanted or somehow inconvenient.
Yet wherever one comes down on the issue, it is unacceptable for anyone to be treating this as some kind of religious culture war in which Jews are required to be fully engaged as combatants because of their faith.
We’ve already heard some of that from anti-Semitic extremists on the far-right, such as Nick Fuentes and other so-called Groypers. Fuentes, an inveterate Jew-hater, who has been rightly ostracized by almost all responsible conservatives, has blamed Jews for being obstacles to the overturning of Roe.
At the same time, for liberal Jewish groups to claim that opponents of abortion are somehow seeking to attack Judaism or Jews is both factually wrong and also a form of partisan incitement that has no place in the current debate.
Now that it has been returned to the democratic process in the states, abortion will be a source of continuing political and social division. In this context, it would be ideal if Jewish groups could conduct themselves in a manner that would convey respect for both sides of a difficult moral quandary, and not merely as partisans in the drama that is now unfolding. What would be even worse would be for those who claim to represent the community to regard support for unlimited abortion without any restrictions as a specifically Jewish cause.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.