By Rabbi Susan Grossman
Years ago, something went wrong late in a friend’s much-wanted pregnancy. If the fetus continued to grow, it could kill her or damage her ability to have future children. She asked her father what to do. A respected Talmudic scholar and Orthodox rabbi, he decided she should have an abortion to protect her life and health. She did. But to do so she had to travel out of state because late-term abortions were illegal in her state, even when medically necessary. Her parents helped with travel expenses. I still remember the trauma she faced leaving home and family for the procedure out of town. Thankfully, today she is the mother of several healthy Jewish children.
Her father’s decision to permit an abortion was based on clear rabbinic precedent. Torah law offers a moderating, faith-based message to protect the life and health of the mother even while recognizing the preciousness of the potential life growing in her womb.
The two main classical Jewish approaches to abortion come from the great sages Rashi and Maimonides. Commenting on the Talmud in Sanhedrin 72b, Rashi explains a fetus is lav nefesh hu, not human life, therefore its needs are subservient to those of its mother. He learns this from Exodus 21:22-23, which states that if an assailant causes a pregnant woman to miscarry, the assailant is fined for damages but not prosecuted for causing a death. Rashi’s decision is consistent with that on Sanhedrin 84b, that capital punishment does not apply to a fetus because it is not a nefesh, a human being.
Maimonides has a different approach. Just as we are obligated to save from harm anyone being pursued by a rodef (a pursuer), even at the cost of the pursuer’s life, so are we to save the mother from harm even at the cost of the fetus. Maimonides’ analogy is not perfect: the fetus has no conscious volition nor is it considered human life under Jewish law. Nevertheless, Maimonides treats the fetus like a rodef (a pursuer) when it endangers the mother’s health, thus prioritizing the mother’s life and health.
How one applies permission to abort for maternal cause depends on which position one follows. Those who follow Rashi are more likely to permit abortion whenever a woman needs medical help, even for mental distress and even at the latest stages of fetal maturation. This includes permitting abortion when a mother feels unable to cope in the face of severe fetal deformity or inability to care for other children due to severe financial or mental distress. Those who follow Maimonides require the mother to face significant physical danger before aborting is permitted, particularly in the later stages of pregnancy.
Centuries of rabbinic commentators in both camps permit and even require abortion where the mother’s life is endangered. Why? Because for Jews, human life begins only when the fetus’s head or the majority of its body exits the mother’s body, and not before. Until then, the fetus is part of her body and thus her health and well-being come first. In other words, Torah and Jewish law prioritizes the life and health of the mother over the potential human life of her fetus. That is why one cannot violate the Sabbath for the sake of a fetus, only for the pregnant woman, according to the 17th century Rabbi Bachrach, based upon Arakhim 7a.
If the anti-abortion lobby has its way, all abortions would be banned, even those required, let alone allowed, under Jewish law. While separation of church and state, and our rights as a religious minority, have not been part of the abortion debate, they should be. Pro-choice is not about being pro-abortion. It is about keeping the government out of private medical decisions more appropriately made between a woman and her doctor, clergy and family. Pro-choice is about allowing all citizens to equally follow their own religious dictates.
Other issues of Jewish concern in the abortion debate include economic justice, so much at the heart of Jewish values. Anti-abortion laws restrict access to women’s health care. Already some women, like my friend, travel out of state for health care and safe abortions no longer available locally, but many others cannot.
Ironically, our Jewish commitment to life is threatened. Women’s lives literally hang in the balance. The specter of coat-hanger and back-alley abortion deaths that initially drove the pro-choice movement is very real. It is time we take the moral high ground and demand that protecting women’s lives take precedence in health care and public policy decisions. It is a position that both protects our rights as a religious minority to follow the dictates of Jewish precedent law and reflects our values of protecting life, the life of the mother.
Rabbi Susan Grossman, senior rabbi of Beth Shalom Congregation in Columbia, has a doctorate in ancient Judaism; served for 30 years on the Committee of Jewish Law and Standards for the Conservative Movement and is an editor of Etz Hayim Torah and Commentary. Her responsa on abortion and when life begins is available online here.