March 26, 2019

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

Editor’s Note: In the Feb. 8 Journal, New York State’s new abortion law, which legally ensures the right to abortion if Roe v. Wade were overturned, was debated by Rabbi N. Daniel Korobkin, first vice president of the Rabbinical Council of America (RCA), and Maharat Ruth Friedman and Rabbi Shmuel Herzfeld, both of Ohev Sholom — The National Synagogue in Washington, D.C. Korobkin and the RCA oppose the new law, known as the Reproductive Health Act, while Friedman and Herzfeld support it. At issue is whether the new law is halachic. Their debate continues:


Response From Maharat Ruth Friedman and Rabbi Shmuel Herzfeld

The public discourse regarding abortion is highly polarizing and tends to drive people into identifying themselves as being on one side or the other. The halachic approach is so valuable precisely for that reason. 

In contrast to the public debate on abortion, which is loud and cantankerous and full of extreme slogans, the personal dilemmas faced by the women (and men) who are confronted with terribly tragic situations are very private, personal and heartbreaking. It is in this context, in our role as congregational clergy, that some Jews who are deeply committed to halachah and ethics have turned to us for guidance. When we talk with such individuals, we painstakingly consider the full scope of the question before giving any guidance because we understand that whatever decision is made will have lifelong consequences for both the mother and father. 

Terms that were used by Rabbi Korobkin such as “homicide” and “infanticide” are incendiary and extreme. For people dealing with terrible and emotionally disastrous situations, hearing such terminology from an eminent rabbi and a rabbinic organization is brutally painful. Worse, these words also are inaccurate and don’t reflect the nuance of how the Torah views the termination of a pregnancy.

Virtually none of the halachic decisors throughout the centuries have ever considered an abortion to be tantamount to homicide. According to one major medieval source, abortion is actually not even prohibited (see Tosafot to Niddah 44a s.v. ihu). The many later commentators who understood Tosafot as saying that there is no prohibition against abortion are some of the greatest minds in Jewish history. They include (but are not limited to) Maharatz Chajes, Melechet Shlomo, Yakhil Shlomo, Torat Chesed, Beit Shlomo, Tzitz Eliezer, R’ Chaim Ozer Grodzinski (see Shut Achiezer 3, 65:14), Rosh (as quoted by the Shita Mekubetzet, Erkhin, 7a) and Ran (Chiddushei haRan, Chullin 57a). 

Whether abortion actually is permitted by Jewish law, the overwhelming opinion of medieval authorities is that abortion is not homicide. See, for example, the opinions of Behag, Ramban, Meiri and Ramah. 

Although the great 20th-century decisor, Rabbi Moshe Feinstein, does take a strict approach to abortion (Iggerot Moshe, Choshen Mishpat 2:69), his ruling is based on an unusual interpretation of Maimonides that abortion is murder (Retzichah V’Shmirat HaGuf 1:9).  However, before Rabbi Feinstein, most commentators did not interpret Maimonides that way and understood that Maimonides does not equate abortion with homicide. See, for example, Sema to C.M. 425:8; Nodeh b’Yehuda in Mahadurah Tinyanah C.M 59; Shut Geoney Batra’i Teshuvah 45, Rabbi Akiva Eiger in his notes on the Mishna in Oholot, Shut Achiezer Chelek 3 72:3, and the Beit Shlomo, Torat Chessed, and Levushei Mordechai).
Rabbi Korobkin states, “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.”

“If someone is truly facing this horrifying situation and would like to know what our tradition and Torah say about this highly nuanced topic, we encourage them to seek out guidance from their spiritual mentors.”

This is also simply not accurate. Halachah has a wide and nuanced perspective on this topic that is not reflected in Rabbi Korobkin’s rhetoric. 

Why does Rabbi Korobkin call it “homicide” when great rabbis like Rabbi Eliezer Waldenberg (Tzitz Eliezer 13:102; 14:101) and Rabbi Yaakov Emden allow abortion in extenuating circumstances, even when the life of the mother is not explicitly in danger (Sheelat Yaavetz, 43)?

The issue of whether to abort a fetus is extraordinarily delicate and shouldn’t be litigated in newspaper articles. If someone is truly facing this horrifying situation and would like to know what our tradition and Torah say about this highly nuanced topic, we encourage them to seek out guidance from their spiritual mentors and then, whatever they decide, find the embrace of their spiritual community to hold them during the years ahead.

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. 


Response From Rabbi Daniel Korobkin
I address this response to you both personally, out of respect and friendship. Please don’t take any of what I say, therefore, as a personal offense.

We agree fully on your concluding paragraph: “When faced with this very difficult issue, don’t use quotes from the media to inform your decision. Speak to your doctor and your rabbi. Each case is unique and because, as we all agree, the halachah is nuanced and involves voluminous debate and multiple opinions, you cannot infer anything from a public policy statement or discussions in the media to address your unique situation.”

That said, you have conflated three areas of rabbinic discourse: (1) halachah in theory, (2) public policy statements, and (3) personal counseling to an individual facing a real abortion. Each type of discourse must be treated differently, but by conflating them you have only added to the confusion on this very delicate issue. So allow me, for a moment, to pull them apart.

Your brief treatment of the halachic discourse on abortion is lacking. You have arrived at the dubious conclusion that Rabbi Feinstein and the majority of other 20th-century poskim simply pulled out of thin air the idea that abortion — specifically late-term abortion — is homicide. Were we to continue this halachic discussion, I’m afraid we would lose most of our audience; and so, instead of tossing around rabbis’ names and opinions (such as: Igrot Moshe 2:69; Nishmat Avraham C.M., 425:1:15; Achiezer 3:65:14; Meshekh Hokhmah Ex. 35:2; Yachel Yisrael 65, et al), I suggest we resume this halachic discussion in the beit midrash (study hall) over a stack of sefarim (books), which is where this discussion belongs.

Suffice it say for the present, you have once again cherry-picked and highlighted those opinions that align with your worldview that abortion is not a form of homicide, and have downplayed those that disagree with that worldview. Using halachic texts to bolster your pre-existent opinion is not the way of psak (rendering legal decisions). A posek’s role is to remove themselves and their emotions from the equation and to exercise resolute jurisprudence. Had you done so, you would have fairly surmised from the voluminous halachic literature that there are a variety of opinions — many of them quite nuanced — as to what extent abortion is or isn’t a form of homicide. You would have also acknowledged that the correct methodology in psak is to view the earlier sources through a lens of latter-day poskim. Citing medieval sources and giving them prominence over latter-day poskim makes as much sense as writing a legal brief on a complex point of business law by citing only sources before the 20th century. Finally, you would have concluded, contrary to your assertion, that the majority of 20th-century poskim deem late-term abortion as a form of homicide.

“A fetus’ life is different from a born person’s life, and it occupies a unique halachic status. But as you acknowledge, statements made in the media are perforce oversimplifications.

Those who label abortion as homicide recognize the limitations of that designation. A fetus’ life is different from a born person’s life, and it occupies a unique halachic status. But as you acknowledge, statements made in the media are perforce oversimplifications. Why did we come out so strongly in opposition to the New York law? Because between 500,000 and 1 million abortions are performed in the United States every year. Worldwide, more than 50 million abortions are performed annually (as per the Guttmacher Institute and Centers for Disease Control and Prevention). The vast majority of these abortions are not necessitated by dangers to the mothers’ lives or the viability of the fetuses. For this level of sheer discarded fetal tissue and bloodshed, it is not hyperbole to invoke the biblical verse, “The blood of your brother is screaming to Me from the soil!” The pervasive cultural more of today is that personal autonomy reigns supreme — no one can tell me what I can or cannot do with my body, and that is why abortion is so commonplace. 

The purpose of public policy statements is not to pasken halachah. It is rather to put forth a worldview especially when it is not the accepted norm within society. The RCA and other religious organizations do that regularly when we perceive that society has taken a turn that we believe is worthy of challenge. We fear that more permissive abortion laws in New York for late-term abortion will result in more abortions, and we feel duty-bound to speak up. If we were living in a draconian society 500 years ago where all abortions were illegal and women were unnecessarily dying because they didn’t have access to abortions, I’m sure our statement would look quite different. But we’re living in today’s world, and today we seek to stop what we consider wholesale bloodshed.

Finally, by conflating a quote made as part of a public policy statement with how we would counsel individuals faced with the painful prospect of abortion, you are insinuating that my colleagues and I are insensitive to the plight of a woman who would come to us for advice. 

That is neither fair nor right.

You don’t know me, nor do you know the countless rabbinic colleagues who have spent years of their lives trying to alleviate the pain of their congregants. The women who come to us for discreet counsel on abortion — in addition to the agunot and abused wives — do so because of their confidence that we have their best interests at heart and that we try our utmost to empathetically take into account all the extenuating circumstances that would allow for a psak that on the one hand is faithful to halachah, but on the other hand would help make that person whole again.

It’s not necessary to tar colleagues with  a broad brush. I hope we can continue this debate in the intimacy of a talmudic hall that will honor the incredible complexity of one of life’s most sensitive subjects.

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