Wednesday, May 25, 2022

With the U.S. Supreme Court reconsidering federal law on abortion, we would do well to consider the views of great Jewish thinkers who have addressed the topic. Among leading halachic scholars, Rav Moshe Feinstein and Rav Eliezer Waldenberg debate whether abortion consitutes murder (Iggerot Moshe Choshen Mishpat II:69; Tzitz Eliezer XIV:100). Rav Joseph B. Soloveitchik (“The Emergence of Ethical Man,” p. 28) and Rav Yaakov Kamenetsky (quoted in Bimchitzat Rabbeinu, p. 133), each in their own way, refer to abortion as murder, as well. I would like here to explore the attitude of a scholar who takes the other approach but sees important public policy implications to even this more lenient view. Rav Jonathan Sacks, like Rav Immanuel Jakobovits, his predecessor as chief rabbi, follows the view that abortion is forbidden but does not constitute murder. However, his conclusions that emerge from this view land far from the notion that abortion is permissible.

Rabbi Sacks’ main discussion of abortion appears in his “Covenant & Conversation on Exodus” (pp. 167-172). Rabbi Sacks focuses on the importance of tradition and interpretation. The Sages (Sanhedrin 79a) interpret the word “ason” regarding a pregnant woman who is struck (Ex. 21:23) as referring to damage, a fatal accident. From this interpretation, it emerges that a fetus does not have the legal status of a person and therefore causing a woman to miscarry is not a capital offense.

In contrast, Philo of Alexandria, under the influence of the Greek translation of the Torah, interprets “ason” as referring to the fetus’ form. If the fetus is not yet formed, then causing a woman to miscarry is not a capital offense. If the fetus is formed, then abortion is murder.

Rabbis Sacks briefly traces these two interpretations through history. Jews traditionally followed the Talmud while Christians adopted Philo’s understanding. The result is that Judaism generally does not consider abortion to be murder while Christianity (or at least Catholicism) considers it to be murder once the fetus is formed, however that is defined. This distinction is important not only in terms of the nature of the offense of abortion but also regarding how we determine our values. Judaism takes its values from the Oral Torah, the rabbinic tradition recorded in Talmud and Midrash, and transmitted throughout the generations by its leading lights. Within Rabbi Sacks’ historical construct, Judaism sees abortion as prohibited but not as murder.

Rabbi Sacks continues by comparing the two approaches whose history he traces to other views. He writes (p. 171): “This is not to say that Jewish and Catholic views on abortion are completely different. In practice, they are quite close, especially when compared to the cultures of ancient Greece and Rome, or the secular West today, where abortion is widespread and not seen as a moral evil at all. Judaism permits abortion only to save the life of the mother or to protect her from life-threatening illness. A fetus might not be a person in Jewish law, but it is a potential person, and must therefore be protected. However, the theoretical difference is real. In Judaism, abortion is not murder. In Catholicism, it is.”

In his approach to abortion, Rabbi Sacks follows in the steps of his predecessor as chief rabbi of Great Britain, Rabbi Dr. Immanuel Jakobovits. Rav Jakobovits, the founder of the modern field of Jewish ethics, says that while abortion may not technically be murder, it constitutes the destruction of “germinating human life” (“The Timely and the Timeless,” pp. 348-361). Rav Jakobovits advocates for a policy that severely limits access to abortion and addresses other public policy concerns.

Like Rabbi Jakobovits, Rabbi Sacks considers abortion to be something less than murder (at least for Jews subject to the Mosaic covenant, about whom he is speaking). However, he distinguishes sharply between this view and contemporary Western culture. Generally speaking, Judaism considers abortion to be a moral evil, even if sometimes it must be the lesser evil chosen. As a general rule, Rabbi Sacks did not advocate for specific policies. However, despite emphasizing the important conceptual difference between the Jewish and Catholic views on abortion, Rabbi Sacks states that “in practice, they are quite close.” This is especially so when contrasting these views to that of contemporary Western culture, which sees no moral problem with terminating a potential life.

Rabbi Gil Student is editor of www.TorahMusings.com.

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