Since the Supreme Court handed down its 1973 decisions in Roe v. Wade and Doe v. Bolton, states have constructed a lattice work of abortion law, codifying, regulating and limiting whether, when and under what circumstances a woman may obtain an abortion.
- Physician and Hospital Requirements: 42 states require an abortion to be performed by a licensed physician. 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 19 states require the involvement of a second physician after a specified point.
- Gestational Limits: 43 states prohibit abortions, generally except when necessary to protect the woman’s life or health, after a specified point in pregnancy.
- “Partial-Birth” Abortion: 20 states have laws in effect that prohibit “partial-birth” abortion. 3 of these laws apply only to postviability abortions.
- Public Funding: 16 states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees in the state. 33 states and the District of Columbia prohibit the use of state funds except in those cases when federal funds are available: where the woman’s life is in danger or the pregnancy is the result of rape or incest. In defiance of federal requirements, South Dakota limits funding to cases of life endangerment only.
- Coverage by Private Insurance: 11 states restrict coverage of abortion in private insurance plans, most often limiting coverage only to when the woman’s life would be endangered if the pregnancy were carried to term. Most states allow the purchase of additional abortion coverage at an additional cost.
- Refusal: 45 states allow individual health care providers to refuse to participate in an abortion. 42 states allow institutions to refuse to perform abortions, 16 of which limit refusal to private or religious institutions.
- State-Mandated Counseling: 18 states mandate that women be given counseling before an abortion that includes information on at least one of the following: the purported link between abortion and breast cancer (5 states), the ability of a fetus to feel pain (13 states) or long-term mental health consequences for the woman (8 states).
- Waiting Periods: 27 states require a woman seeking an abortion to wait a specified period of time, usually 24 hours, between when she receives counseling and the procedure is performed. 14 of these states have laws that effectively require the woman make two separate trips to the clinic to obtain the procedure.
- Parental Involvement: 37 states require some type of parental involvement in a minor’s decision to have an abortion. 26 states require one or both parents to consent to the procedure, while 11 require that one or both parents be notified.
- Guttmacher Institute
The latest Pew data estimated that a whopping 83% of Jews believe that in all or most cases, abortion should be legal, putting us at the fourth most pro-choice group surveyed (behind only atheists, agnostics, and Unitarians.)
We beat out every single non-Unitarian Christian group, Buddhists, Hindus, Muslims, and even “nothing in particular,” which evidently is a category distinct from atheists and agnostics.
The national debate about abortion is back, and it’s pretty clear where the Jewish community falls.
- Rabbi Danya Ruttenberg / The Forward
(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ (כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃
(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life,
וכי ינצו אנשים. זֶה עִם זֶה, וְנִתְכַּוֵּן לְהַכּוֹת אֶת חֲבֵרוֹ וְהִכָּה אֶת הָאִשָּׁה:
Rashi on 21:22
If two fight with each other and one intended to strike the other and inadvertently struck the woman (Sanhedrin 79b).
The Christian tradition reads this differently. In the Septuagint, the Greek translation of the Bible, the Hebrew word for "no harm follow" was replaced by the Greek for "her child to be born perfectly formed." This translation/interpretation brands the unborn child affected by this violence as fully formed and therefore sees the action against it as murder/manslaughter. The Jewish tradition followed Rashi as seeing the harm described about the woman and not the unborn child.
ואי מיעברא עד ארבעים מיא בעלמא היא
And if she is pregnant, until forty days from conception the fetus is merely water. It is not yet considered a living being.
(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:
(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a pursuer (rodef). On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother. If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.
Another reason that I suspect so many Jews come down in favor of safe and legal abortion is connected to the fact that we have historically been among the strongest supporters of the separation of church and state, and have long been wary of legal maneuvers that appear to be coming from a place of Christian religious conviction. I imagine that, even among Jews who may be personally against abortion for themselves or think that it’s morally wrong, there may be a reticence to impose their individual thinking on other people, and certainly the country as a whole.
(Ruttenberg)
ליכא מידעם דלישראל שרי בדבר - ...ועל העוברים דעובד כוכבים חייב וישראל פטור אע"ג דפטור מ"מ לא שרי...מיהו קשה דאמרינן בפרק בן סורר ומורה (לקמן סנהדרין דף עב:) יצא ראשו אין נוגעין בו דאין דוחין נפש מפני נפש אבל קודם שיצא ראשו החי' פושטת ידה וחתכתו לאברים ומוציאה כדי להציל את אמו וכה"ג בעובד כוכבים אסור כיון שהוזהרו על העוברים וי"ל דהא נמי בישראל מצוה כדי להציל ואפשר דאפילו בעובד כוכבים שרי:
There is nothing which is permitted to a Jew but prohibited to a non-Jew:...Concerning killing a fetus, a Gentile is liable but a Jew is exempt. But even though he is exempt, it is still not permitted. However, there is a difficulty for it says in Sanhedrin 72b, "if its head emerges, one may not touch it for the life of one may not be set aside for the life of another." But before its head emerges, the midwife may put her hand in the womb and cut it out limb by limb in order to save the mother. But this is not permitted to a Gentile, for they are liable for killing fetuses. And we can answer that it is a mitzvah for the Jew to save the mother and this might even be so for a Gentile.
Interestingly, many Christian communities derive their prooftexts against permitting abortion from the Hebrew Bible, like verses about God forming humans in the womb (Psalm 139:13, Jeremiah 1:5, Isaiah 44:24)—texts which don’t even register in the Jewish legal conversation on this topic. To put it simply, we don’t derive matters of Jewish law from Psalms.
(Ruttenberg)
(ז) הַמַּפֶּלֶת לְיוֹם אַרְבָּעִים, אֵינָהּ חוֹשֶׁשֶׁת לְוָלָד. לְיוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה. רַבִּי יִשְׁמָעֵאל אוֹמֵר, יוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וּלְנִדָּה. יוֹם שְׁמוֹנִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה, שֶׁהַזָּכָר נִגְמָר לְאַרְבָּעִים וְאֶחָד, וְהַנְּקֵבָה לִשְׁמוֹנִים וְאֶחָד. וַחֲכָמִים אוֹמְרִים, אֶחָד בְּרִיַּת הַזָּכָר וְאֶחָד בְּרִיַּת הַנְּקֵבָה, זֶה וָזֶה לְאַרְבָּעִים וְאֶחָד:
(7) If she miscarries on the fortieth day [since her prior immersion], she need not be concerned that it was a fetus. If [she miscarries] on the forty-first day, she should sit [for the required number of days] for a male and for a female, and for [being] a niddah. Rabbi Yishmael says: on the forty-first day she should sit for [the required number of days for one who gives birth to] a male and for [being] a niddah. On the eighty-first day she should sit for a male and for a female and for [being] a niddah, because [the formation of] a male is completed in forty-one [days], and a female in eighty-one. And the Sages say: this and that [are both completed] in forty-one.
Rabbi Yehuda HaNasi holds: A fetus is considered as its mother’s thigh, i.e., a part of its mother’s body, and it is as though the master transferred ownership of one of her limbs to her.
רש"י על סנהדרין ע״ב ב:ל״ח:א׳
יצא ראשו - באשה המקשה לילד ומסוכנת וקתני רישא החיה פושטת ידה וחותכתו ומוציאתו לאברים דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו אבל יצא ראשו אין נוגעים בו להורגו דהוה ליה כילוד ואין דוחין נפש מפני נפש
עברית
its head came out: With a women that is experiencing difficulty giving birth and is in danger. And it is taught in the first section [of this teaching], "the midwife extends her hand and cuts it up and extracts [the pieces];" as the entire time that that it has not gone out into the environment of the world, it is not a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.
English
Excerpts from Tzitz Eliezer (Eliezer Waldenberg, Jerusalem, 1915 – 2006)
If there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation. Also, if her health is poor and to cure her or to relieve her from great pain it is necessary to abort the fetus, even if she is not in actual danger, there is room to permit it, based on the halachic authority’s evaluation of the situation.
In the case of a baby who will have Tay-Sachs, "One should permit...abortion as soon as it becomes evident without doubt from the test that, indeed such a baby shall be born...if, indeed, we may permit an abortion according to the halachah because of 'a great need' and because of pain and suffering, it seems that this is the classic case for such permission. And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ays much greater than the suffering of the flesh.
Responsum L'vushai Mord'khai, 1913
Mental health risk has been definitely equated to physical-health risk. This woman who is in danger of losing her mental health unless the pregnancy is interrupted, therefore, would accordingly qualify.
I also wonder if our long-standing tradition of embracing machloket, divergent opinions, makes a Jew who feels personally against abortion more able to see the possibility that someone else might legitimately understand the world in a different way, and to value that perspective. This, attitude, too, would favor upholding Roe v. Wade and allowing each individual or community to make the decisions that make the most sense for them. I think, in a lot of ways, we as a community understand what “truth” is in a way that allows for much more complexity, many more grey areas. This may stand in stark contrast to those who understand abortion in clear terms of right and wrong, God’s truth and sin.
(Ruttenberg)
And each shall retain his sacred donations: each priest shall keep what is given to him. The LORD spoke to Moses, saying: Speak to the Israelite people and say to them: If any man’s wife has gone astray and broken faith with him in that a man has had carnal relations with her unbeknown to her husband, and she keeps secret the fact that she has defiled herself without being forced, and there is no witness against her— but a fit of jealousy comes over him and he is wrought up about the wife who has defiled herself; or if a fit of jealousy comes over one and he is wrought up about his wife although she has not defiled herself— the man shall bring his wife to the priest.
And he shall bring as an offering for her one-tenth of an ephah of barley flour. No oil shall be poured upon it and no frankincense shall be laid on it, for it is a meal offering of jealousy, a meal offering of remembrance which recalls wrongdoing. The priest shall bring her forward and have her stand before the LORD. The priest shall take sacral water in an earthen vessel and, taking some of the earth that is on the floor of the Tabernacle, the priest shall put it into the water.
After he has made the woman stand before the LORD, the priest shall bare the woman’s head and place upon her hands the meal offering of remembrance, which is a meal offering of jealousy. And in the priest’s hands shall be the water of bitterness that induces the spell. The priest shall adjure the woman, saying to her, “If no man has lain with you, if you have not gone astray in defilement while married to your husband, be immune to harm from this water of bitterness that induces the spell. But if you have gone astray while married to your husband and have defiled yourself, if a man other than your husband has had carnal relations with you”— here the priest shall administer the curse of adjuration to the woman, as the priest goes on to say to the woman—“may the LORD make you a curse and an imprecation among your people, as the LORD causes your thigh to sag and your belly to distend; may this water that induces the spell enter your body, causing the belly to distend and the thigh to sag.” And the woman shall say, “Amen, amen!”
The priest shall put these curses down in writing and rub it off into the water of bitterness. He is to make the woman drink the water of bitterness that induces the spell, so that the spell-inducing water may enter into her to bring on bitterness. Then the priest shall take from the woman’s hand the meal offering of jealousy, elevate the meal offering before the LORD, and present it on the altar. The priest shall scoop out of the meal offering a token part of it and turn it into smoke on the altar. Last, he shall make the woman drink the water.
Once he has made her drink the water—if she has defiled herself by breaking faith with her husband, the spell-inducing water shall enter into her to bring on bitterness, so that her belly shall distend and her thigh shall sag; and the woman shall become a curse among her people. But if the woman has not defiled herself and is pure, she shall be unharmed and able to retain seed.
This is the ritual in cases of jealousy, when a woman goes astray while married to her husband and defiles herself, or when a fit of jealousy comes over a man and he is wrought up over his wife: the woman shall be made to stand before the LORD and the priest shall carry out all this ritual with her.