Another View: Jewish Law Doesn't Permit Abortion On Demand

Ultrasound image of a 6-week fetus.

Ultrasound image of a 6-week fetus.

July 11, 2022

In a previous article, TJE interviewed Lisa Fishbayn Joffe, a legal scholar and expert on women's equality, about her views on Judaism and abortion.

Here, we offer a different perspective from professor of classical rabbinic literature Reuven Kimelman.

Kimelman studies the history of Judaism, focusing on the meaning of the Jewish liturgy. In the field of Jewish ethics, he specializes in the ethics of war, statecraft, conflict and genocide.

The views expressed here are Kimelman's and not necessarily those of Brandeis University.

To be clear, you agree with Professor Joffe that Jewish law permits abortion to save the life of the mother.

I don't know of any rabbinical authority who considers the fetus's life more important than the mother's. It's when there is no imminent threat to the life of the mother that views among rabbinical authorities differ.

Until 40 days gestation, the fetus is not considered life.

Yes, during this period, the Talmud [a compendium of rabbinical commentaries and laws written during the 1st millennium C.E.] characterizes a fetus as "mere water."

In fact, the Talmud wouldn't even call terminating a pregnancy before 40 days gestation an abortion. During that period, the fetus is coming into being. You can't abort that which hasn't come into being yet.

What is the origin of this 40-day cut-off period?

We can't be sure. It may have been based on current medical opinion. I've been reading a lot of Galen, the famous doctor in ancient Rome, who often concurs with rabbinic opinion. 

Is the fetus considered a life after 40 days gestation?

A potential life. The Talmud is quite clear that a fetus only becomes a full-fledged life once the baby issues from the womb — when the head, or, in another interpretation, most of the body, has emerged from the mother's body.

But in your view, even though the fetus is considered potential life, Jewish law still does not permit abortion on demand after 40 days of gestation.

Yes.

First, in Judaism, you cannot say, "It's my body. I can do whatever I please" because it's not yours to dispose of. Life is a gift from God; a person is accountable for its use.

If it were your body to do as you please, then suicide would be countenanced. Traditionally, those who committed suicide were even excluded from burial in a Jewish cemetery. They killed a human being, even if it is oneself.

In Judaism, you even have to be careful about elective surgery removing a part of the body if it is not beneficial. Life cannot be endangered needlessly. Life is a gift.

Second, the Talmud cites a case where a man comes to a rabbi with the following dilemma: The government said to him, "Either you kill X, or I'll kill you." The only way that he can save his life is by taking someone else's. What should he do?

The Talmud rules that you have no right to save your life at the expense of the other.

The argument is that both of you were created in the image of God. You can't play God arguing that your life is more valuable than another's or the reverse. Therefore, you can't kill somebody to spare your life. The rhetorical expression used is, "Is your blood any redder than the other?" meaning, is your life more valuable than someone else's?

Yes, life takes precedence over potential life, but only if potential life is threatening life.

Once a woman is blessed with a viable fetus, she becomes more than just herself. It is no longer just her body. The burden of proof is on those who seek to terminate a potential life.

It is a pity that the nuanced position of Judaism gets drowned out by reducing such a complex issue to the shouted binary slogans of pro-life and pro-choice.

Over the centuries, rabbis have expanded the definition of 'the threat to the pregnant woman's life.'

Yes. The threat can be death or severe emotional or psychological damage from the pregnancy, especially if one is suicidal or inclined to insanity. 

What is the basis for this?

Jewish law is based more on reality and medical knowledge than on theory. It factors in health considerations, both mental and physical. There are psychological and health issues not recognized centuries ago. The law learns to adjust to the expansion of knowledge.

How is the determination made that a pregnant woman's life is threatened?

It would be wise to consult with three doctors. The Talmud says one should not act as a single judge. Only God qualifies as a single judge.

Human judgment is colored by experience, values and perception. Three doctors could constitute a "court." This allows the assumptions and biases of one physician to be balanced by the others to minimize any bias. Taking even potential life is a serious matter.

 

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