Originally published in Newsweek June 29, 2020
Earlier today, the Supreme Court issued its ruling on June Medical Services v. Russo, once again affirming—as it has again and again over the last forty-seven years—our constitutional right to abortion.
However, this fight is far from over; anti-abortion lawmakers across the country continue their sustained, coordinated attacks on our reproductive freedom, including 25 abortion bans that were signed into law in 2019, nearly 450 restrictions on access to reproductive health care passed over the last nine years, and numerous attempts to restrict or halt abortion access during the COVID-19 crisis. Just last week, Tennessee passed one of the strictest bans in the country, banning abortions after a fetal heartbeat is detected—about six weeks into a pregnancy, before many people may be aware that they are even pregnant. It should be noted that these laws disproportionately harm Black and Brown communities who already face greater barriers to abortion access and systemic racism, including in health care.
As we consider the future of abortion access in this country, it may be helpful to note that abortion access is not only a 14th Amendment issue, as the Supreme Court itself ruled with Roe v. Wade in 1973, but a 1st Amendment issue, in light of the fact that pregnancy termination is not only permitted by Judaism but, at times required.
The most fundamental text underlying Judaism’s understanding of abortion rights is in the Book of Exodus, describing a case in which someone inadvertently causes a miscarriage. The Torah specifies that the guilty party would be liable for manslaughter only if the pregnant person themselves die; otherwise, they must simply pay monetary damages, as the fetus is not regarded as a person. (Notably, some Christian commentators understand this passage differently, due in part to a poor translation of one of its critical words, but the Rabbis of the Talmud are clear on the plain meaning of the Hebrew.)
Other authoritative Jewish texts further emphasize that the fetus does not have the status of personhood, describing it as “mere fluid” for the first 40 days after conception and part of the pregnant person’s body thereafter. This led some rabbinic authorities to rule that, as Rabbi Jacob Emden did in the 18th century, “there is reason to be lenient [in permitting abortion]… only so as to save her from woe,” or as Rabbi Eliezer Waldenberg did in 1978, abortion is a valid choice when not terminating might cause “suffering and emotional pain.”
More than that, our tradition is clear that abortion is absolutely required when the life of the pregnant person is at risk, through the whole duration of the pregnancy (“until the head emerges” in the birthing process is the classical definition of the cutoff time), and that in such a case abortion is considered a form of self-defense against a murderous “pursuer.”
And so, given that abortion is permitted–and even sometimes required–by at least one major religion, there are are two critical First Amendment issues at play when legal restrictions are considered.
The first is the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” That is, much of the argument for abortion access has been rooted in a very specific Christian perspective; those who seek to restrict abortion rights are seeking to impose their religious views on others, which is inherently unconstitutional. This is particularly clear with regards to laws and policies based on the premise that life begins at conception which—as may be clear above—is not the case in Judaism. The Establishment Clause is upheld when we allow access to abortion for those who need or want it; and those who do not want abortions do not need have to have them.
The second is that “Congress shall make no law… prohibiting the free exercise” of religion, which means that not permitting Jews to freely access abortion may interfere with our own understanding of Jewish law—we should be allowed to be able to access medical procedures that are permitted to us, and we certainly should not be forbidden from those mandated by our tradition, as the saving the life of the pregnant person is a paramount obligation. While this argument probably would not fare well in court given the “religious liberty exemptions” in current legal interpretations of the Religious Freedom Restoration Act (RFRA), a federal bill (the Do Not Harm Act) was introduced last year that would clarify that RFRA was meant to be used as a shield to protect free exercise rather than a bludgeon with which to harm others.
Given the ways in which the conversation around abortion has been driven by Christian fundamentalists, not enough people understand that abortion access is a fundamental Jewish issue. This is especially true given the dominance of Evangelical Christian conservatives in moral and faith-based conversations about abortion. Their views do not reflect those of most Americans, but instead, represent one extreme interpretation of one religion and leave no room for other beliefs. In fact, a majority of Americans believe that abortion should be legal all or most of the time; in one study in 2019, 73 percent, including over half of Republicans, support Roe v. Wade, and in another, 86 percent—including more than two-thirds of Republicans—made it clear that they wanted Roe to be preserved. What’s more, a 2017 study showed that nearly one in four people who can become pregnant will have an abortion by age 45. We must lift up the voices of people of faith who advocate for reproductive health, rights, and justice not in spite of their religion, but because of it.
This is why we are launching National Council of Jewish Women’s new Rabbis for Repro campaign, a pledge inviting rabbis and cantors to pledge to teach and preach about the Jewish perspective on abortion. We’re proud that the initial signatories represent every single denomination – Reform, Conservative, Reconstructionist, Renewal, and Orthodox – including the heads of the Conservative, Reform, and Reconstructionist movements.
This is not just a matter of Jewish law, but of Jewish values. We consider pikuach nefesh, preserving life, to be one of our most critical commandments, and, more broadly, building a just society to be of ultimate Jewish concern—and, with abortion access, safety, justice, freedom, and lives are at stake. The U.S. has the highest rate of maternal mortality and morbidity among industrialized countries, with African-Americans and American Indian/Alaska Natives three times more likely to die of pregnancy-related causes than white Americans. Those who lack access to reproductive health care—disproportionately low-income people, people of color, young people, immigrants, and LGBTQ individuals—are more likely to live in poverty and to remain in abusive relationships, and unsafe abortions are a leading cause of death worldwide.
While the Supreme Court upheld Roe v Wade this time, there will be more challenges to come. And we will need all hands on deck when they come.
Sheila Katz is CEO of the National Council of Jewish Women. Rabbi Danya Ruttenberg is the author of Surprised By God, Nurture the Wow, and other books.