December 11, 2019

Open Debate: Is N.Y.’s Abortion Law Halachic?

Editor’s Note: New York state recently enacted one of the nation’s strongest protections for abortion rights, which legally ensures the right to abortion in the state if Roe v. Wade were overturned. Its Reproductive Health Act (RHA), signed into law by Gov. Andrew Cuomo on Jan. 22, replaced a 1970 state abortion law that was passed three years before Roe v. Wade legalized abortion nationwide. The act codifies many abortion rights laid out in Roe and other court rulings, including a provision allowing abortion until the end of the pregnancy if the woman’s life or health is in danger, or if the fetus is not viable. The previous law, which was in conflict with Roe and other subsequent abortion rulings, permitted abortions after 24 weeks of pregnancy only if a woman’s life was at risk. The new law also authorizes physician assistants to perform some abortions and moves the section of state law dealing with abortion from the penal code to health statutes. Nine other states including California, Washington and Oregon also have put protections for abortion rights in their state statutes, giving them a legal backstop should Roe be overturned.

The enactment of the New York law has drawn pointed protests from two large Orthodox Jewish religious organizations: the Rabbinical Council of America (RCA), a group for centrist Orthodox rabbis; and Agudath Israel of America, which represents Charedi Orthodox Jews. The groups, along with the Catholic Church and the Southern Baptist Convention, released statements condemning the action.

Other Orthodox clergy have offered opposing positions, saying the New York law is consistent with Jewish law.

To allow both sides to present their views, the Journal is publishing the RCA’s statement, an argument opposing the RCA’s position, and a rebuttal from an RCA official. 

RCA Statement Opposing New York’s Reproductive Health Act

The Rabbinical Council of America, the leading membership organization of Orthodox rabbis in North America, strongly opposes parts of The Reproductive Health Act, New York state’s recently adopted legislation on abortion.

The New York law permits abortion when “the patient is within 24 weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.” In addition, the new law moves the section of state law dealing with abortion from the penal code to health statutes.

Jewish law opposes abortion, except in cases of danger to the mother. Most authorities consider feticide an act of murder; others deem it an act akin to the murder of potential life. There are Jewish legal scholars who permit, in extenuating circumstances, the abortion of compromised fetuses.

The RCA maintains that “abortion on demand,” even before 24 weeks from the commencement of pregnancy, is forbidden. There is no sanction to permit the abortion of a healthy fetus when the mother’s life is not endangered. The RCA supports that part of the law that permits abortion, even at a late stage, when the mother’s life is at risk.

Rabbi Aaron Lichtenstein, of blessed memory, a leading expert in Jewish law and mentor to many of rabbis of the RCA, wrote, “from the perspective of the fetus and those concerned with its welfare, liberality in this direction comes at the expense of humanity…” (“Abortion: A Halachic Perspective,” Tradition, 25(4), Summer 1991).

Rabbi Elazar Muskin, president of the RCA, said, “Jewish law is based on the theological presumption that a human being does not possess total ownership of his or her body. Our bodies belong to God; we are His stewards. Therefore, decisions about abortion must be made with due consideration of theological and moral principles.”

Rabbi Daniel Korobkin, first vice president of the RCA, said, “The removal of any restriction from abortion access and the redefining of the word ‘homicide’ to exclude abortion, indicate a further erosion of the moral values of our society, where killing babies is no longer construed as immoral in any way, even when the fetus has a measure of personhood, actual or potential.”

Rabbi Mark Dratch, executive vice president of the RCA, added, “We are very concerned about the potential physical, emotional, personal and financial implications that abortion restrictions may have on the mother, the family and the child. We maintain that it is the duty of the family, as well as that of society, to enable those impacted to live lives of dignity, and we must prioritize ways to find means of support.” 

Response From Maharat Ruth Friedman and Rabbi Shmuel Herzfeld

When a new state law removes an impediment to appropriate application of halachah (Jewish law), that ordinarily should be a cause for celebration. Why, then, are some rabbinic leaders so up in arms over the passage this week of New York state’s Reproductive Health Act (RHA)? 

There is, in fact, nothing really new in the RHA relative to the law it replaces, except insofar as it newly permits abortions after 24 weeks of conception in certain, limited situations that have long been permitted under Jewish law, but which previously were prohibited under American (New York state) law. It also takes abortions out of the ambit of criminal homicide and makes them a matter of women’s health, instead. In other words, the new law more closely conforms American law to Jewish law than the old law did. That is something that we should be happy about.

But instead, some rabbinic leaders have decried the new law. Especially troubling are the statements by the RCA’s first vice president, Rabbi Daniel Korobkin, who sees the new law as representing an “erosion of the moral values of our society.” According to Korobkin, “removal of any restriction from abortion access” is tantamount to “killing babies.” This position essentially adopts the extremist view that a fetus should be considered a human being from the moment of conception — a notion that has long been rejected by even the most ardently right-leaning Orthodox Jewish rabbinic leaders.

Agudath Israel of America argued to the Supreme Court in the 1989 case of Webster v. Reproductive Health Services that a state’s legislative finding — that a fetus is a human being from the moment of conception — should be struck down as an unconstitutional establishment of religion, because such a finding “could jeopardize the right to abortion in situations where halachah would demand it.” The Agudath’s Rabbi Chaim David Zwiebel has further noted that “sometimes the only way to ensure that our halachic rights are legally protected is to extend such protection beyond the precise parameters of halachah. That is one of the realities of the imperfect world we inhabit as we await the arrival of Mashi’ah.” The RCA further proclaimed in 1990 that “neither the position of ‘pro-life’ nor the position of ‘pro-choice’ is acceptable to halacha,” and accordingly, endorsement of any legislative measures that impede application of halachah — on either side of the political divide — should be precluded. 

“Families wrestling with a question of abortion in extenuating circumstances are often facing a gut-wrenching decision that they will carry with them every day of their lives.

Traditional Jewish sources are thus clear that in the abortion context we should err on the side of imposing fewer impediments to halachic decision making, not more of them. There is no question that the old New York abortion law impeded application of halachah more than the new law does, and we should therefore be thankful that the new law was enacted. There is simply no reason to use enactment of a new law that is helpful to halachah as an occasion to support conservative political interests that ultimately do not align with Jewish law, and which, in fact, contradict it. That is not only unhelpful, it is halachically unlawful and contravenes clear halachic precedent.

There is considerable irony in the undue criticism of the new abortion law by rabbinic authorities during this very week of Parashat Mishpatim. It is in the very first aliyah of this week’s parsha (Shemot 21:22) that the Torah discusses abortion of a fetus, which occurs by accident as collateral damage from a fight between two individuals. The Torah teaches that the person who causes the abortion incurs liability in the form of money damages. Thus, the Torah is telling us that however tragic an event an abortion may be, it does not incur the death penalty, since, as the Malbim points out, “hamitchayev b’mitah patur mitashlumin” — someone who is liable for the death penalty is exempt from money damages.

The fact is, even the most stringent rabbinic positions on abortion do not adopt the “human being begins at conception” view of the sanctity of life. Traditional Judaism considers this view to be overly simplistic and insufficiently nuanced to accommodate the complex realities of family and community life, as they manifest themselves in different particular instances throughout the generations. Draconian, bright-line rules on abortion simply do not comport with an halachic world view, and make proper application of halachah more difficult.

The notion of abortion “on-demand” is antithetical to halachah. Traditional Jewish sources emphatically prohibit recourse to abortion except in exceptional circumstances. But traditional Jewish law also clearly diverges from traditional Christian dogma, considering it unnecessary and unhelpful to define life’s beginning at conception, or to equate abortion with homicide, in order to discourage recourse to abortion in most situations, while still allowing for its judicious use when halachah demands it. 

Ultimately, our experience as clergy has shown us that families wrestling with a question of abortion in extenuating circumstances are often facing a gut-wrenching decision that they will carry with them every day of their lives. This situation requires nuance and compassion. By referring to people who decide to abort (often after consulting with great Orthodox rabbis) in harsh and coarse language that is unsupported by halachah, these rabbis have unnecessarily inflicted further pain upon these families. 

The disparaging remarks by the RCA and the Agudath this week over passage of the RHA support extremist positions that contradict halachah. They abdicate responsibility for defining the proper parameters of debate over abortion in American society, and threaten the proper exercise of rabbinic authority over some of the most important moral and ethical questions of our time. 

To the families that are wrestling with these difficult questions: Please know that there are many great rabbis in the world across the spectrum of Orthodoxy who reject this harsh approach to the issue.

Rabbi Shmuel Herzfeld has been the rabbi of Ohev Sholom — The National Synagogue in Washington, D.C., since 2004. 

Maharat Ruth Friedman, also one of Ohev Sholom’s clergy, was a member of the inaugural class of Yeshivat Maharat, the first institution to ordain Orthodox women as spiritual leaders and halachic authorities. 

Rebuttal From Rabbi Korobkin

Maharat Friedman and Rabbi Herzfeld are owed our thanks for highlighting the issue of New York’s new Reproductive Health Act and its impact on the Jewish community. Any woman facing the excruciating prospect of abortion goes through untold agony and deserves our sensitivity and compassion. Discussing this issue within our community, however, while painful for those who have gone through or are undergoing this experience, is necessary so that Judaism and its precepts can inform the decisions we make for ourselves and those unborn. 

That said, the authors’ arguments that the new New York act is more in line with halachah are wholly inaccurate. Their entire statement is riddled with inaccuracies, but I will highlight two for the sake of clarity and brevity. 

“Our objective was not to inflict additional pain, but to address the high degree of infanticide that is occurring in today’s society.”

Firstly, the authors have inferred from the RCA’s recent statement, and especially my quoted snippet, that because we have identified abortion as an act of homicide in certain instances, this means that we define life as beginning with conception. We said no such thing. The new law creates greater leniencies in late-term abortion, and it is precisely this issue that has created so much consternation in the Orthodox rabbinic community. Nowhere in our statement did we intimate that life begins at conception, and this has nothing to do with late-term abortion.

What is clear halachically, is that all Orthodox poskim (halachic decisors) forbid abortion unless there is some degree of danger to the mother’s life. A very large number (we hesitate to say “most” because in a world where every rabbi has an equal vote that word is largely moot) of 20th- century poskim have also ruled that once the fetus is viable (that is, capable of living outside the womb), aborting the fetus is tantamount to homicide. These poskim include: Rabbi Moshe Feinstein, Rabbi Aharon Lichtenstein and Rabbi Shlomo Zalman Aurbach. 

This does not mean that halachah absolutely forbids late-term abortion. It does mean, however, that for a very large body of poskim, one would have to justify an act of killing a fetus in order to perform a late-term abortion. Such justification can indeed be made when the mother’s life is in danger. The new act, however, is overly liberal in making allowances for the sake of the mother’s “health,” and also gives excessive latitude to who may make such a determination. The new act also decriminalizes late-term abortion, and in so doing gives a nod to those health care providers who wish to push the abortion envelope, even when the mother’s life is not in danger.

Secondly, the authors have arrived at the conclusion, based in part on a portion of a statement made by Agudath Israel in 1989, that when it comes to abortion, rabbis should err on the side of more permissive legislation that would “impose fewer impediments to halachic decision making.” Instead of cherry-picking one line of a lengthy statement from Agudath Israel, the authors should honestly admit that in that very same statement from 1989, Agudath Israel advocated for completely overturning Roe v. Wade. The Agudath restated this in its recent statement condemning the new [New York] act. While the RCA statement did not go that far, my point is that it’s a gross distortion to suggest that more liberal abortion legislation is in line with rabbinic thinking. 

Let’s be honest. Late-term abortion makes up just over 1 percent of all abortions in the U.S., and in many of those instances, the abortion is halachically justified. What is at stake is not the preservation of halachah, but rather the propagation of the notion that a woman’s body is her own, and that aborting a fetus is a simple matter of her choice. The new [New York] act supports this worldview, especially with its decriminalization of late-term abortion. This will undoubtedly result in more abortions performed every year. That’s the real tragedy. 

This new act further assuages the conscience and diminishes the moral dilemma of a pregnant woman who is agonizing over the very painful decision of whether or not to abort her fetus. Our statement was meant to push back on the worldview that motivates this act, in the hope that pregnant women in our communities will realize that there is another view and another way. 

Finally, a word about how we rabbis and our “coarse” and “harsh” language have inflicted undue pain on women faced with the very difficult issue of abortion. Any Orthodox woman faced with the difficult choice of aborting her fetus is undoubtedly tormented, with or without our statement. Our objective was not to inflict additional pain, but to address the high degree of infanticide that is occurring in today’s society. 

The authors are right to empathize with a pregnant woman’s feelings. But doing so without taking into account the life of the fetus — regardless of the often-complex halachic arguments to quantify that life — is, in our view, an even greater act of cruelty and callousness. I would rather risk causing emotional distress to an adult who can make her own decisions regardless of what I suggest, than to increase the risk of terminating a defenseless fetus, who, although possessing a functioning brain, a beating heart, and moving arms and legs, cannot advocate for himself or herself. 

Rabbi N. Daniel Korobkin is senior rabbi of Beth Avraham Yoseph of Toronto Congregation and first vice president of the Rabbinical Council of America.