Halakhic Considerations Regarding the Repeal of Roe vs. Wade
Last week, the US Supreme court overturned Roe vs. Wade abolishing a woman’s constitutional right to abortion. The intense public debate that this decision has generated compels us to revisit how halakha approaches abortion. Is Jewish law pro-life or pro-choice? Halakha’s nuanced perspective on abortion neither categorically prohibits it nor unconditionally permits it. Although halakha does not permit abortion on demand, it does allow it under specific circumstances. Rabbanit Dr. Sharon Galper Grossman discusses the “Halakhic Considerations Regarding the Repeal of Roe vs. Wade״.
Last week, the US Supreme court overturned Roe vs Wade abolishing a woman’s constitutional right to abortion. The intense public debate that this decision has generated compels us to revisit how halakha approaches abortion.
Jewish law distinguishes between different kinds of prohibitions. Depending on the circumstances, halakha might classify abortion as retzach (murder), or as a lesser prohibition, like hashchatat zera (wasting seed) or chovel (wounding). Halakha also differentiates between degrees of life. Sometimes, it permits transgressing these prohibitions to undergo abortion. Halakha’s nuanced perspective on abortion neither categorically prohibits it nor unconditionally permits it.
Biblical sources illustrating Judaism’s philosophy on abortion begin with Bereshit 9:6, commanding the children of Noach, שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ – “whoever sheds the blood of man through man shall his blood be shed” – which Sanhedrin 57b interprets as a prohibition against feticide. Sanhedrin 59a teaches that prohibitions for the children of Noach also extend to Jews. Some also invoke lo tirzach (do not murder) to prohibit abortion.
Shemot 21:21-23 describes a fight during which one party unintentionally harms a pregnant woman. If the fetus dies, the perpetrator pays damages to her husband, but if she dies, he faces capital punishment. This differentiation suggests that the fetus does not have the same halakhic status as the mother. Mishna Ohalot 7:6 teaches that if a mother’s life is in danger during childbirth, one must abort the fetus because the life of the mother takes precedence. However, once the fetus has partially emerged, one may not harm it since we do not destroy one life for another.[1] Why would halakha permit abortion when the fetus is in the womb but prohibit it once it partially emerges? Rashi Sanhedrin 72b yatza rosho explains that before the head comes out, the fetus does not have the halakhic status of nefesh (a living soul). Once it emerges, it is a nefesh and we do not kill one nefesh for another. In Hilchot Rotzeach v’Shemirat HaNefesh 1:9, Rambam suggests that even though the fetus is a nefesh, one may dismember it in the womb since it is a rodef (a pursuer), threatening the life of the mother.
Reflecting this disagreement between Rashi and Rambam, contemporary poskim fiercely debate the halakhic status of a fetus and the permissibility of abortion under specific circumstances. Tsitz Eliezer 13:102 and 9:51 (Shaar 3), Rav Eliezer Waldenburg, a leading 20th century authority on medicine and Jewish law and the rabbi of Shaarei Tzedek hospital, permits abortion when there is life-threatening and nonlife-threatening danger to the mother, as well as “to cure her or alleviate great pains” in cases of adultery, rape, or a defect in the fetus. Ideally, abortion should occur before 40 days from conception when the fetus is considered mayim ba’alma (a sack of water[2]) or before three months.[3] However, for Tay Sachs, he permits abortion until seven months.[4] In support of his position, he cites Rashi, Sma, Tosfot,[5] Maharit,[6] Ben Ish Chai,[7] Chavat Yair, [8] and Rav Yaakov Emden.[9] He concludes by admonishing the Jewish people to approach abortion with the utmost gravity.
Rav Moshe Feinstein, the leading halakhic decisor of twentieth century diaspora, strongly disagreed with Rav Waldenburg, stating that abortion is retizcha unless the pregnancy endangers the mother’s life.[10],[11] He cites Rambam in support of his position, dismissing many of Rav Waldenburg’s supporting sources.[12]
Although halakha does not permit abortion on demand, it does allow it under specific circumstances. Rav Hershel Shachter recounts a story of a woman who married late and had difficulty conceiving. When she finally succeeded, she discovered that the fetus had Tay Sachs.[13] A doctor contacted Rav Shlomo Zalman Auerbach on her behalf to ask if she might abort. When Rav Auerbach prohibited it, the doctor asked him to reconsider. In a follow-up call, Rav Auerbach instructed him to contact “a famous posek in Jerusalem,” Rav Waldenburg, who would permit the abortion. This story illustrates that even when a posek felt he could not permit abortion, he recognized the heart-wrenching nature of this decision. In the aftermath of the Supreme Court decision, we must learn from the example of our poskim who disagreed on this issue but nevertheless held each other’s views, and society’s needs, in the highest regard.
[1] האשה שהיא מקשה לילד מחתכין את הולד במעיה ומוציאין אותו אברים אברים מפני שחייה קודמין לחייו. יצא רובו אין נוגעין בו שאין דוחין נפש מפני נפש. For a woman who is experiencing a difficult birth [i.e. where the mother’s life is in danger], one should dissect the child inside her and extract the pieces, for her life takes precedence over his. Once most of the child is out, we do not touch him, for one does not push aside one life for the sake of another.
[2] Yevamot 69b classifies a fetus less than 40 days old as mayim ba’alma (a sack of water), lacking the legal status of a person. Thus, Shulchan Aruch Yoreh Deah 194:2 rules that a woman who miscarries before 40 days does not have tumat yoledet. For this reason, some poskim permit destruction of a less than forty-day old, unused IVF embryo, while others prohibit it as constituting hashchatat zera (wasted seed)).
[3] Niddah 9b teaches that the fetus is not recognized before three months.
[4] Shabbat 335a suggests that a seven-month-old fetus is fully viable.
[5] In Niddah 44a, hu mayis b’reisha, Tosfot states twice that it is permitted to kill a fetus
[6] Maharit 9:97-99 states that the fetus is not a nefesh but merely the property of the husband.
[7] Rav Paalim Even Ha’Ezer 1: 4 determined that abortion may be allowed for adultery and to preserve the honor of the family, although he was reluctant to rule officially.
[8] Chavat Yair 31, who me’ikar hadin permits abortion but fears that an official ruling permitting it would lead to promiscuity.
[9] Yavetz 1:43 permitted abortion after adultery.
[10] Iggerot Moshe Choshen Mishpat 2:69.
[11] Some poskim (Beit Shlomo Choshen Mishpat 132, Tzur Yaakov 141, Tzofnat Paneach 1:59, Machazeh Avraham Yore Deah 2: 19, Yabiya Omer Even Ha’Ezer 1) permit abortion for life-threatening illnesses that are not directly related to pregnancy, such as heart disease, kidney disease, high blood pressure, and diabetes.
[12] He cites Tosfot Sanhedrin 59b leka mi’d’ta’am d’yisrael shari, which questions the principle that whatever is prohibited for the children of Noach is prohibited for Jews. Tosfot point to the example of abortion for which the children of Noach are chayav, but Jews are patur. Tosfot clarify that for Jews, feticide is patur but assur (forbidden). In addition, when the fetus endangers the mother’s life, Tosfot suggests that dismembering the fetus is a mitzva for the Jew and perhaps is also permitted for the non-Jew. Rav Feinstein points to Tosfot Niddah 44a, (see note 5), and so contradicts Tosfot Sanhedrin 59b. He concludes that Tosfot Niddah 44a must be a ta’ut sofer, a misprint. He rejects Maharit, concluding that the text is a forgery.
[13] https://music.amazon.com/podcasts/28f95af7-6495-416a-b084-eea493f3187e/episodes/b5303946-58c2-4458-a120-c3c92febaabf/halacha-headlines-5-14-22-shiur-%E2%80%93-370-%E2%80%93-roe-v-wade-%E2%80%93-what%E2%80%99s-the-torah%E2%80%99s-approach-it-might-be-a-lot-different-than-you-think?refMarker=null&returnFromLogin=1& minute 15:00.
