My Opinion on Abortion Legislation

Why should you care about my opinion about how Jews ought to respond to the potential overturning of Roe v. Wade in the United States? You shouldn’t. Here’s why.

Halakhah prohibits abortion in most cases. According to most decisors, the Tzitz Eliezer a famous member of the minority, it is only permitted in cases of piquach nefesh — risk to life, or profound risk to limb or sanity.

The question is why, and there are a number of possible underpinnings for the prohibition of abortion offered in halachic literature. When Rav Aharon Lichtenstein was asked to present to the Israeli Supreme Court on the topic of abortion in halakhah as a possible foundation for civil law, this was R Aharon’s list of opinions (see “Abortion: A Halakhic Perspective”, [HaRav] Aharon Lichtenstein [zt”l], Tradition, Summer 1991 Issue 25.4, pp. 3-11.)

  1. Homicide – Retzichah
  2. Ancillary to Homicide – Senif Retzichah
  3. Tort – Chavalah
  4. Hatzalah – a violation of either “lo sa’amod al dam reiekh” (not standing by when another is harmed) or hashavas aveidah (returning a lost item, in this case, life).

Rav Aharon says that he himself leans toward #1, retzichah, but as a basis for civil law, all opinions need to be considered. Halachipedia (“Abortion”) identifies that position with Rav Moshe, and says that Rav Unterman holds something much like #2, but calls it “abuzreihu deretzichah – akin to homicide”. The article offers yet more possibilities:

  1. Violating peru urevu (being “fruitful and multiplying”)
  2. Hashchasas Zera – destroying seed
  3. It is specific Rabbinic (!) legislation (Tzitz Eliezer)
  4. Destroying Hashem’s handiwork (Zohar), though this could be a diferent wording of #6).

No civil legislation is going to catch all the nuance of halkhah according to any one of these opinions, never mind being able to make room for a woman and her rabbi to follow whichever of the others they rule by.

And notable when discussing American legislation, abortion is prohibited to all of Noach’s descendants, and is even more punishable for non-Jews than Jews.

So the question becomes: Do we as Jews back the legislative position of the Pro-Choice camp, allowing a million abortions for the sake of tens of women (per million) whose situation would have been considered piquach nefesh according to halakhah but would not be able to get an abortion on time due to some future state ban not exempting their case? Or do we back Pro-Life legislation and stop those abortions, which we all agree are prohibited?

And this is why I cannot answer, because I am not a poseiq.

When I was growing up, the dominant names in American pesaq were Rav Hutner and Rav Aharon Kotler of a half-generation before me, Rav Moshe Feinstein (of course), R YB Soloveitchik, Rav Yaakov Kamenecki, and others. Every one of the rabbanim I just named hold that the fetus is a person (at least after 40 days, and most said from day 1), and abortion murdering that fetus. It is therefore very supportable, particularly in the context of the American Jewish community, that we should be saving those millions of lives at the expense of risking a far fewer number of women.

However, in this generation, we have lived to see ki miTzion teitzei Sorah — the vast majority of halachic discussion is going on in Israel. Even here in the States, this has influenced many posqim to side with one of the other theories about why abortion is prohibited. And if so, those millions of abortions prohibited for reasons less than life-or-death are outweighed by tens of women’s lives saved.

So… Does halakhah advice us to support Pro-Life or Pro-Choice legislation? Only a poseiq can say. I am not one and I see our posqim‘s various stances promoting both possibilities.

But what I think makes my non-answer worth sharing is that to me, we have to view this and all moral questions in purely Torah terms. And unfortunately, I am not hearing enough of that. To me it seems that we, like the rest of the country, are dividing ourselves into political camps.

The majority of Orthodox Jewish Americans are aligned politically with the Religious Right, buy into the Pro-Life rhetoric, and can’t even let themselves see the reality of shitos who do not believe there is a life yet to be murdered. Meanwhile, the liberal minority are so determined to fall in line with their positions, they are writing pieces that don’t acknowledge the position of noted posqim who do consider abortion to be murder.

But we follow Beis Hillel because they would teach Beis Shammai’s position before their own. Someone who loves Torah would have the intellectual honesty to explore the whole sugya (topic) in the full harmony of its many shitos (ideological positions).

If the debate were truly for the sake of heaven, we would be more ready to admit its existence. Our debating style betrays a dispute motivated by politics, not Torah.

כל מחלוקת שהיא לשם שמים. סופה להתקיים.

Any dispute that is for the sake of heaven. in the end will persist.

Avos 5:17

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