Reproductive Justice and Judaism Annotated Talk

Loretta J. Ross and Richie Solinger define reproductive justice as “the right not to have a child; the right to have a child; and the right to parent children in safe and healthy environments … reproductive justice demands sexual autonomy and gender freedom for every human being” (Rabbi Liz P.G. Hirsch, The Social Justice Torah Commentary, p. 308).

Rabbi Danya Ruttenberg, NCJW: Reproductive freedom is a Jewish value. Our tradition not only permits the termination of pregnancy, but even requires it when the life of the pregnant person is at stake. And, of course, kavod habriyot —human dignity —and, more broadly, building a just society are ultimate Jewish concerns.

This "rabbi under the bed" story reminds us that Judaism believes that sexual relationships have the potential for holiness, and how we have sex is a matter of religious importance. While there might be some "right" and "wrong" ways of doing things, there is no inherent sin or impurity in consensual sex.

While this text refers to fasting rather than pregnancy, it indicates the autonomy of an individual when it comes to making decisions about their own health. While a medical professional might intervene if a person is putting themselves in danger, if a person demands a certain intervention for themselves, the medical professionals must defer to them. A person is considered the authority when it comes to their own body and their own experience.

Legal Personhood and the Status of a Fetus

The text above establishes that, according to the Hebrew Bible, a fetus does not have the same legal status of personhood as the mother. In rabbinic literature (i.e. the Talmud), a fetus is referred to as "mere water" until 40 days of gestation (Yevamot 69b) and the "thigh of its mother" for the duration of a pregnancy (Chullin 58a, Gittin 23b).

Jewish law around burial and mourning rites further indicates that miscarriages, stillbirths, and even the death of a newborn hold a different status than that of a person older than one month (Shabbat 135b-136a; Mishneh Torah Laws of Mourning Chapter 1: 6-8; Shulkhan Arukh Yoreh Deah Avilut 374:8)

Fetus as Rodef: When an Abortion is Necessary

In a case where the woman's life is at stake, abortion is not only permitted but required. Maimonides (12th century) equates the fetus with a rodef, or pursuer, someone who, according to the Talmud, "must be saved from sinning even at the cost of their own life" including those who plan to commit murder, perform idolatry, or violate a betrothed woman (Sanhedrin 73a).

Be Fruitful and Multiply? Obligations and Exceptions

It is also discussed in the Talmud whether a woman is bound by the commandment "be fruitful and multiply" (Genesis 1:28). The rabbis conclude that men are bound by this commandment, but not women, because they might be infertile, or because their lives might be endangered by pregnancy and childbirth (Yevamot 65b).

While the text below refers to the use of contraception (a device called a mokh) it also speaks to several reasons a person might not want to be pregnant, or might not be able to carry a pregnancy to term safely.

Rabbi Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” Tradition 25:4 (1991)

Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.

Rabbi Leah Rachel Berkowitz, "Sometimes Abortion is How We Choose Life," Rosh Hashana Morning Sermon 2022/5783: “There is no law without story.” This was Rabbi Aviva Richman’s refrain during the Hadar Institute’s two-day conversation about Jewish perspectives on abortion. ....

Throughout our tradition, in the Bible and the Talmud, we see authority figures making rules about how we should live in the world. But just as often, we find stories that acknowledge the “messiness of our lives and our bodies,” particularly when it comes to pregnancy, birth, and raising children (Rabbi Aviva Richman, “Stories We Know and Don’t Know: A Quest for Agency and Dignity,” Panel, August 3, 2022).....

I am speaking about this topic today, as we celebrate the world’s birth, because on Rosh Hashana, we acknowledge that the choices we make can have life or death consequences for us and those around us. On these High Holy Days, we remember that we are responsible for protecting society’s most vulnerable. For so many people, access to abortion care is a matter of pikuach nefesh, preserving life. The erosion of abortion access taking place in our country right now disproportionately puts the most vulnerable people in our society at risk. But if there is one thing I can say, that might change someone’s way of thinking about abortion as a Jewish person, it is that often terminating a pregnancy is how we choose life.

I have spent many years studying and teaching about Jewish perspectives on reproductive justice. I could lecture extensively on Jewish theories of personhood and when an abortion is permitted, or even necessitated, by Jewish law.

But this year, while studying with Rabbi Yitz Greenberg, an Orthodox theologian who might not always agree with me about when abortion is permissible, I realized that I have been asking the wrong question. The question is not, “When does life begin?” and it is not “Whose life matters most in this situation?” The question is “What is the most life-affirming decision we can make in this moment?” and “Who gets to make that decision?”

This may seem counterintuitive, since the idea of “choosing life” has been coopted by those who seek to block access to abortion care. Even within the framework of “reproductive justice,” we might imagine other life-affirming choices our communities can make. We could invest in healthcare and education, paid leave and childcare, pay equity, food security and affordable housing. These too might help create safer, healthier, places to be pregnant, to give birth, and to raise children.

But when we encounter the stories of the very real people who are faced with these decisions, we see that there are many circumstances when terminating a pregnancy is the best, or the only, life-affirming choice.

Sometimes, this is because a pregnant person’s life is endangered by continuing a pregnancy.

Sometimes, this is because a fetal anomaly would cause pain and suffering to all those involved if the pregnancy were carried to term.

Sometimes, this is because the circumstances of the pregnancy have brought anguish to the pregnant person and their loved ones.

And sometimes, this is because it is just the best decision for the pregnant person, their loved ones, and their future. ....

“There is no law without story.” And these stories, ancient and modern, remind us that we do not have the right to choose when someone else brings life into this world. We can only choose what kind of world we want to create for those who choose to be pregnant, to give birth, and to parent children, as well as for those who choose not to. But most of all, we can choose what kind of world we’ll create for those whose time has come to be born.

What Can You Do?

1. Connect with the National Council for Jewish Women and their partner website Jews for Abortion Access to find out more about their Jewish Fund for Abortion Access and Jewish Movement for Abortion Access:
2. Learn about abortion access in your state from the Guttmacher Institute and the Planned Parenthood Action Fund.
3. Support local organizations the protect abortion access in your state and for those traveling from out of state, as well as national and international organizations like Planned Parenthood Action Fund; Reproductive Freedom for All (Formerly NARAL), and the International Planned Parenthood Fund.

4. Vote. Be vigilant about legislation and ballot initiatives in your state.

5. Be vocal about reproductive justice. Make it known--social media, letters to the editor, calls to your representative-- that there are people of faith who support abortion access.​​​​​​​

Personal Narratives

• Shira Zemel, "The Burden of Pregnancy," Lilith Magazine, January 26, 2022: https://lilith.org/2022/01/the-burden-of-pregnancy/?fbclid=IwAR3UgmF5waRXVwGdKqv1mJ9Hck_LuEki9BosoiPxBFbv-FirpMJELdNX8t8
• Rabbi Rachel Pass, "The Abortion I had While I was a Rabbinical Student was a Sacred Choice, Times of Israel, September 9, 2021 https://blogs.timesofisrael.com/i-am-a-rabbi-my-abortion-was-a-sacred-choice/
• Rabbi David Young and Cantor Natalie Young https://storycorps.org/stories/remembering-dr-tiller-10-years-after-his-murder-a-couple-reflects-on-his-abortion-care/
• Jessica Valenti, "The Life Abortion Gave Me," https://jessica.substack.com/p/the-life-abortion-gave-me
• Rabbi Leah Berkowitz, "Am I Glad My Mother Didn't Abort Me?" https://thisiswhatarabbilookslike.wordpress.com/2017/07/12/am-i-glad-my-mother-didnt-abort-me/