Judaism and Abortion

I am Rabbi Balfour Brickner. I serve as the national director of the Commission on Interfaith Activities, a joint commission of the Central Conference of American Rabbis, the Jewish Chautauqua Society and the Union of American Hebrew Congregations, central congregational body of Reform Judaism in the United States. That is a body which encompasses somewhat over a million men, women, and children.

I am delighted and somewhat saddened to be here: delighted by the opportunity to make known to this august subcommittee the views of Reform Judaism on the subject of abortion, but saddened by the need to do so. One would have hoped that 14 months after the U.S. Supreme Court’s historic decision of January 22, 1973, in the case of Jane Roe v. Henry Wade, it would no longer be necessary to justify whether there should be available to women in this country the freedom to choose whether or not to have an abortion, especially during the early weeks of pregnancy. I am saddened that again one has to defend against those who, by constitutional amendment would seek to overturn the judicial decision of the highest court of our land in a matter which, in our judgment, ought to remain a matter of individual conscience. I do not question the right of any individual or group to seek such a reversal: that is indeed inherent in our democratic style, but it does sadden me to realize that once again the forums of government are burdened with a matter which competing religious groups have turned into an ugly, emotionally charged confrontation.

Unhappily, I find myself concurring with those reflective judges, scholars, and commentators who have perceived and deplored the fact that historically it is religious beliefs that underlie the retention of abortion laws denying those with differing beliefs, religious or otherwise, the right to that act. It is probably quite correct to suggest as some have that opposition can be traced to organized religious bodies. […]

[…] Just as the state must never say—and has not said—that a person not wishing an abortion must have one, so too the state must never be allowed so to legislate as to prevent a woman wishing an abortion from having one. The right of individual conscience must be maintained.

That right is now being challenged again. There are those who maintain that a fetus is a full, human being from the moment of conception. Senate Joint Resolution 119 (Senator Buckley’s proposed resolution) makes that equation when it suggests that the word “person” as used in the 5th and 14th articles of amendment to the Constitution be construed as “human being” and applied also to the unborn in every stage of their biological development. Senate Joint Resolution 130 (Senator Helms’ proposal) in essence makes the same equation. Were either of these resolutions to become law it would follow that anyone electing to have an abortion would be guilty of murder: that is, taking a human life. The thrust of these resolutions is clearly to make abortion illegal and therefore impossible, frustrating the effect of last year’s Supreme Court decision. We in Reform Judaism must therefore oppose these amendments and any similar efforts and we do so on the basis of our understanding of our tradition of Jewish law.

Judaism does not believe that the word “person” connotes a full human being. It does not equate abortion with murder. To the contrary, in Judaism, a fetus is not considered a full human being and for this reason has no “juridical personality” of its own. Jewish law is quite clear in its statement that an embryo is not reckoned a viable living thing (in Hebrew, a bar kayyama) until 30 days after its birth. […]

In Judaism the fetus in the womb is not a person (lav nefesh hu) until it is born (Rashi, Yad Ramah, and Me’iri, all to Sanhedrin 72b). According to Jewish law, a child is considered a “person” only when it is “come into the world.” Thus, there is no capital liability for feticide. By the reckoning, abortion cannot be considered murder. The basis for this decision is scriptural. The biblical text states:

If men strive, and wound a pregnant woman so that her fruit be expelled, but no harm befall her, then shall he be fined as her husband shall assess, and the matter placed before the judges. But if harm befall her, then thou shalt give life for life. (Exodus 21:22)

Talmudic commentators made the teaching of this biblical passage quite explicit. They said that only monetary compensation is exacted of him who causes a woman to miscarry. No prohibition is evident from this scriptural passage against destroying the unborn child. Clearly, and here the major rabbinic commentators on the Bible agree, the one who was responsible is not culpable for murder, since the unborn fetus is not considered a person. This concept is reiterated in many different instances and in many different places in rabbinic writing. […] “A woman who is having difficulty in giving birth, it is permitted to cut up the child inside her womb and take it out limb by limb because her life takes precedent. However, if the greater part of the child has come out, it must not be touched, because one life must not be taken to save another.” (Mishnah Ohalot 7.6) Rashi, the preeminent commentator on the Bible and the Talmud, explains the talmudic passage as follows: “As long as the child did not come out into the world, it is not called a living being and it is therefore permissible to take its life in order to save the life of its mother. Once the head of the child has come out, the child may not be harmed because it is considered as fully born, and one life may not be taken to save another.” […]

Thus, it is clear that Jewish law does not consider abortion murder. Moreover, it totally disagrees with those who consider a fetus “a person,” certainly not a human being. In this, Jewish law agrees with the majority opinion of those on the Supreme Court who in their January 22, 1973, decisions stated:

“The Constitution does not define ‘person’ in so many words. The use of the word is such that it has application only postnatally.”

“The unborn have never been recognized in the law as persons in the whole sense.”

Despite this plethora of evidence from Judaism recognizing the legality of abortion, some orthodox Jewish authorities have taken and continue to hold a negative view towards abortion. Indeed, most orthodox rabbis prohibit this act, except in such special instances as when a woman is impregnated through rape or incest or when it is clear that continuation of the pregnancy to birth would constitute a clear danger to the life and/or health of the mother. […]

One final word. My religious tradition is one which has revered and sanctified human life for nearly 4,000 years. During the time when “religious men” were marching heedlessly across the face of the world in wanton destruction of the family of man, in the name of Christ or Allah, or some other word for God, we, the Jewish people, were teaching our children that the home was a “mikdash m’at,” a miniature sanctuary where parents and children ministered in the house as priests before an altar of God. We have always sought to preserve a sensitive regard for the sanctity of human life. It is precisely because of this regard for that sanctity that we see as most desirable the right of any couple to be free to produce only that number of children whom they feel and felt they could feed and clothe and educate properly: only that number to whom they could devote themselves as real parents, as creative partner with God. It is precisely this traditional Jewish respect for the sanctity of human life, that moves us now to support that legislation which would help all women to be free to choose when and under what conditions and circumstances they would elect to bring life into the world. […]

I am well aware that the issue of abortion is one that is emotionally charged. I am well aware there are some citizens of this country who hold deep religious convictions which cause them to consider abortion as morally wrong. […] On the other hand, not to have the option of abortion would be to deny full protection under the law to those whose religious conviction does in certain circumstances recognize abortion, at least allow it. It would discriminate against large segments of our population and foster illegality and the continuation of deception. Therefore, I as a religious Jew of the Reform Jewish persuasion, urge that Senate Resolutions 119 and 130 and all similar legislation be defeated and that the principles enunciated by the Supreme Court in its historic decisions of January 22, 1973, be reaffirmed and upheld.