Rabbanit Adena Berkowitz
Jewish Law on Abortion

Rabbanit Adena Berkowitz | Jewish Law on Abortion | 06.29.22

- So welcome back, everybody. Hi, hi to everyone and a very, very warm welcome to Rabbanit, Dr. Adena Berkowitz. So thank you, Adena, for joining us. You’re an old friend, and we just feel it’s such an honour to have you with us on Lockdown University. And before I hand over to you, I’m just going to do just a short introduction. So Dr. Adena Berkowitz is a Scholar in Residence at Kol HaNeshamah, New York City, an organisation dedicated to re-energizing the spiritual lives of both affiliated and not yet affiliated Jews, and senior educator at the Manhattan Jewish Experience. With her background in law, Jewish studies and psychotherapy, Adena is the author of the best selling “The Jewish Journey Haggadah”, now in its second printing, and co-editor of “Shaarei Simcha: Gates of Joy”, a mini prayer book and the first liturgical work written by Orthodox women in the modern era. A practising therapist. She lives in New York with her husband, Rabbi Zev Brenner and her children. Today we are very, very fortunate to have Adena with us, and she will just be discussing Jewish law on abortion. So thank you Lauren, as always, and a very warm welcome Adena. So I’m now going to hand over to you, thank you.

• Thank you, thank you Wendy, for that very generous introduction, and thank you, really, it’s an honour, a big honour for me to be here. It’s such an amazing institution that came out of something that was sadness, but I’m very glad that now that hopefully most of the worst of the pandemic is behind us. That this is one really, jewel, that can continue. So. For really putting together something that has so many participants and such a wonderful cross-section of lecturers. So I have to say, they sometimes say in life, “Timing is everything.” And it really is quite amazing that it just turned out that I was asked to speak on abortion and in Jewish law, and of course it’s coming in the heels of last Friday’s reversal of Roe v Wade by the Supreme Court. We all kind of knew what was, it seemed like it was coming because of the leak. But the question is really, what I would, say in the public sphere and even among a lot of Jews, no matter what their background’s, is how do the sources, how do the rabbis, how does the tradition look at abortion and what does it mean that we live in a wider multicultural world? Is Judaism, would we say, is it pro-life? Is it pro-choice? Where do we come down on it? So I’ll save some of the answers for the end.

But I want to sort of begin, is just so that people understand a little bit about what led up to Roe v Wade and in essence what happened last Friday. And that is that we have to go back to the early part of the 20th century. While abortion was dealt with in the criminal statutes, whether it was a crime, whether a doctor could be prosecuted, whether a woman could be arrested for having an abortion, the wider question that came up in the early part of the 20th century was, “What kind of control do we have over our own bodies?” And this is very significant when looking at sort of the overall picture of where sort of abortion falls, in terms of medical decision making within our tradition, in particular, things that really specifically affect our bodies in a specific way, and more generally, how it affects our life, our health, our mental wellbeing, and just quality of life in general. So what happened was in 1914 was actually in New York, it was a case that ended up being decided by Justice Benjamin Cardozo, at this time he was the chief judge of the New York Court of Appeals. I always like to find, when I come across cases of his, because I went to Cardozo Law School, and obviously he was Jewish and it was a big kavod that he was on the court. And what’s interesting was the case that came before him was a case called Schloendorff v Society of New York Hospital.

Now, I think New York Hospital today might be Columbia Presbyterian, you know, someone else could Google it and tell me if I’m right about that. But at that time, the reason why it’s significant was that Society of New York Hospital was actually a faith-based hospital. And that was significant because what happened was, is that Mr. Schloendorff was having very bad stomach pains, went to see a doctor. Now this is 1914, most people view that if you were going to be sent to a hospital, it meant that it was very severe and there was a high likelihood you would die. Generally, people felt if they were going to a hospital, it was not to get better, but it was marking the end of your life, given sort of what the technology was then. And the doctor said, “Look, you know, the only way that we know what to do, is we have to like open you up and see what it is.” So she said, “Okay, you can do that, but don’t take anything out, don’t touch it, et cetera, you know, then wake me up.” So, you know, they did have some form of anaesthesia, and he puts her under anaesthesia, and sure enough he finds that she had some kind of stomach condition, he removes it, specifically, in violation of what she told him.

She wakes up and she ends up getting very sick. I think she has gangrene, she maybe loses a limb. She sues the hospital, and the case went all the way up to the New York Court of Appeals. And what Justice Cardozo said was, “Every human being of adult years and sound mind has a right to determine what shall be done with his body. And a surgeon who performs an operation without his patient’s consent, commits an assault for which he is liable and damaged.” In this particular case, it was interesting ‘cause they found for her that she couldn’t collect anything, because the hospital was immune from sued, because it was a faith-based hospital, and there was immunity for that type of hospital. Her lawyer made a mistake, he should have sued the doctor, but it would be many years until we would see a rash of, you know, of malpractice against doctors becoming widespread. So we have that as what we call a common law, right? Now, that’s important essentially of the right to decide what to be done with your body. There’s nothing so far that’s been pulled out vis-a-vis the Constitution. And what we begin to see towards the middle of the 1960s, towards the end of the 1960s, is that philosophers, in the Kennedy Institute of Bioethics, it’s founded to look at ethical issues that come up in medical treatment and decision making. And there were four, sort of principles, that they developed at the Kennedy Institute that they set the pillars for moral life, particular vis-a-vis healthcare treatment.

They said, “Number one is respect for person’s autonomy, which is, you acknowledge a person’s right to make choices, to hold views and to take actions based on personal values and beliefs. Justice to treat others equitably, distribute benefits, burdens fairly, non malfeasance, do no harm, obligation not to inflict harm intentionally.” In medical ethics, the physician’s guiding maxim, which I think many of us know, is first do no harm. And the last is beneficence. “Do good, provide benefits to persons and contribute to their welfare, refers to an action done for the benefit of others.” So this idea of autonomy and self-determination coupled with Justice Cardozo’s words became part of this common law right that we have of medical decision making. We are the ones that can make that decision. It led to the idea of informed consent. You can’t operate on someone unless they sign off on it because otherwise it’s a form of battery. So that’s kind of in general. Now what happened when we see the cases in the United States that worked its way through the 1960s where the court in Griswold versus Connecticut said that there was a right to privacy, a very intimate decisions.

That case was about contraception. And then when we got to Roe v Wade, so many of us probably are familiar with it, especially because so much attention has focused on it during the past week, what the court did was they established a right of personal privacy, that they said constitutionally was protected by the due process clause that includes the right of a woman’s determine whether or not to bear a child. They used a viability standard of trimesters to decide when the state could come in and regulate it because the state has an interest in protecting potential life. What happened almost 20 years later, in a following Supreme Court case, was that the Planned Parenthood versus Casey case, they overturned the Roe trimester framework and they actually replaced it, with a viability analysis in which they said viability can be earlier than the third trimester. And they said, “Any regulation pre viability that imposes a substantial obstacle preventing a woman from obtaining a legal abortion is an undue burden that violates her constitutional right to abortion.”

So what happened last Friday was that the Supreme Court found that there actually, they said the justices that voted for that, the six to three, there’s nothing in the Constitution, they said, that talks about abortion. There’s no constitutional right to abortion. This is really something that has to be decided by states. So we’re going to send it back that there’s no federal protection, but every state enabled to do that. And it’s really something for people to take up with the legislature and that it’s not something that is inherent in the constitution. So that’s sort of where it stands. We’ve seen then in many states, already, around the country where they’ve enacted more restrictive conditions for abortion, ranging from the original Mississippi case, was that you could only get an abortion up to 15 weeks, and only after that if the life or health of the mother was threatened, if the the foetus had terrible anomalies, terrible disabilities, therefore that that could be permission. And in other jurisdictions it’s either no abortion at all, six weeks, heartbeat, et cetera. So the question is, “What does Jewish traditions say about this?” So it’s really interesting because we only find, actually in one source, in the Torah, in the Hebrew Bible, that references abortion, there’s only one reference, and it’s not really about abortion, it’s really about a miscarriage.

But it says it’s from the book of Shemot, Exodus, in chapter 21, in verse 22, it says, “When two men are fighting and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according, as the woman’s husband may exact from him, the payment to be based on a reckoning. But if other damage ensues, i.e., it means if the woman dies, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, et cetera. So what the rabbis extrapolate from this, which is very interesting, is that it would seem then that the loss of a foetus is not a capital crime, because if it was a capital crime, then the person who inflicted would be liable for capital punishment. But rather it’s a matter of a tort, it’s damages. The woman miscarried a foetus, the her husband is entitled to some form of damages based on the person who caused the miscarriage. Now that’s very interesting, the Torah doesn’t tell us. Also, we don’t have any indication here, how far along is this woman? Is this just at the beginning of her pregnancy? Suppose it’s already in her eighth month. We don’t learn that from this source, in the Torah. So we have that as one reference. It’s really a reference.

When we get into rabbinic literature, it becomes more substantive. If we take a look, this is on, I think this is, let me just see if you have the source sheets there, three, four, six, I think it’s page seven, that we have a number of sources. The source is from the Mishna, the Mishna is part of the Talmud. It’s the oral tradition that was written down of the rabbinic discussion. And the Gemara that we’ll see quote a little bit, is actually the back and forth. So the Mishna kind of gives sort of the basic like tenant, and the Gemara will be the rabbi’s commenting on it. So in the Mishna, in Oholot it says, "A woman who was having trouble giving birth, they cut up the foetus insider and they take it out. This is very graphic, so forgive me for the graphic, but it’s from the Mishna, they take it at limb by limb because her life comes before its life. If most of it had come out already, they don’t touch it, because we don’t push off one life for another.” So here we begin to see then something very interesting in this Mishna, and that is that it’s talking about a woman who is having difficulty giving birth. And they say, “What are we supposed to do? Who’s life are we supposed to save?”

So what we learned from this Misha is that the woman’s life and wellbeing comes first because the foetus inside of her is referred to A, as a foetus, and therefore her life comes first. But what do we learn from this particular source, which is very interesting, and that is, is that once in a sense, the head of the baby, now a baby begins to emerge. They don’t touch it because they say in Jewish tradition what we learned, you can’t substitute one life for another. So once it’s head, it’s kind of comes out, then it’s already taken off of a different meaning. So how is that helping us? Well, we’re beginning to see, “Okay, so does that mean that a foetus in utero has no standing? Is it just cells? Is it just, it might be developing, but it has no status.” So what’s very interesting about that is that we begin to see a difference of opinion vis-a-vis Rashi, who was the famous biblical and Talmud commentator and Maimonides, a mediaeval commentator who was also a doctor and wrote a treatises on Jewish law. And what we see is that in the Talmud, in Sundhedrin, right? It’s talking about robberies, it’s talking about people’s homes getting broken in. And there’s a concept in Jewish law that if somebody breaks into your house, they are a pursuer, they’re a rodef, they’re coming after you. Once they break into your house, according to Jewish law.

You can get up and you can use deadly bodily force to stop them. So they’re talking about this and all of a sudden we see a discussion, “Well, what about if a woman is having a difficulty with her pregnancy? What exactly is the status of saving, is it saving the foetus or do we save the mother?” And what Rashi says is the following, it says, “In the case of a pregnant woman who was in mortal danger during childbirth.” He quotes the Mishna, “You can dismemberment the foetus for as long as it has not emerged to the world.” And this is what Rashi says, “It says love nefesh pikuach. It is not a nefesh.” Now, it doesn’t say, and we have to kind of differentiate, potentially, between a nefesh and a neshama. A nefesh, it seems like a neshama, perhaps really is more of a soul. A nefesh is more of a living person. So he says, “It hasn’t come out in the world, it’s not a nefesh and it’s permitted to kill it and save its mother. But if its head has emerged, one may not touch it or kill it.” Just what we saw in Oholot, the Mishna, “Because you don’t set aside one nefesh for another.” You don’t set aside one life for another. So along comes Rambam, along comes Maimonides, and here’s what he says to explain this.

He says, “It’s a negative commandment that one should not protect the life of a rodef.” Of a pursuer. In other words, in many, by the way, in many jurisdictions in the United States, there are different ideas about when you can use deadly force. Even if somebody comes into your house, they break into your house, you’re sitting eating cereal, somebody breaks in, you have a gun with you, can you shoot to kill or do you point the gun and say, “Stop.”? Do you have to give a warning? Suppose you come into your home and you see someone has broken into your house and they’re sitting at the table eating cereal. Can you pull your gun and kill them? Do you have to give a warning? Et cetera. In Jewish law, the idea is of somebody who is in imminent danger of bodily harm. That would seem to be what a rodef, somebody coming after you, somebody pursuing you. So he says, “You don’t have to protect the life of a rodef.” And then here’s where they make the leap. He says, “For this reason, the sages ruled that in the case of a pregnant woman in a dangerous labour, it is permissible to dismember the foetus in the womb, whether with a drug or you do it by your hand, right? Because why? Because Rambam, Maimonides says, "Because it’s like a rodef pursuing her to kill her.” However, once his head has emerged, one may not touch him.“ Right?

Same thing, you don’t set aside one nefesh for another. So what’s so interesting about this is that Rashi doesn’t give a reason. He just says a foetus in utero. And we’re not exactly given a timeframe even here it sounds like it might be pretty developed, but we don’t know. Rashi just say it’s not a person. He doesn’t give a reason. But what does Rambam do? Rambam, Maimonides gives a reason why you can do it, because he says, "See the foetus in utero is what is akin to a pursuer, ko-rodef. Now that he doesn’t say the foetus is a rodef, he doesn’t say that the foetus, the ubar, is a rodef. He says the foetus is ko-rodef. Now what’s the importance of using the word akin? Because it would seem then that what Rambam is introducing is that an idea that you need some kind of justification for ending the potentiality of this foetus. And what we see elsewhere in rabbinic literature is a rabbinic attempt to try to define when exactly do we know when life begins. So for example, we learn in the Talmud where it says in Yevamot, it says, "During the first 40 days, a foetus is considered maya b'alma, it’s only mere fluid. So that’s very early on. There’s no personhood that has been attached to it. And elsewhere we have the idea that a foetus is considered ubar yerekh imo. That a foetus, it’s like akin to being like, literally, the thigh of the mother, that it is connected to the woman.

Now therefore, what makes this very important, where the rabbis are trying to figure out in contemporary times, grounds for abortion. The first question that pops up is, "Well, is the foetus a person? And if you determine that the foetus is a person, then can you ever quote unquote terminate it? How has this come up?” So again, what we see is, I would say a little bit of of a different approach to trying to figure out decision than we see in what courts in the United States have dealt with. What the Supreme Court said in Roe. And even what we see in the Dobbs decision. Because according to Jewish tradition, when it comes to areas concerning our body, this is something very important that I don’t think a lot of people even kind of process. The traditional idea is that we don’t own our bodies. We don’t have ownership over our bodies. In fact, I heard once from someone, I always say I should have paid more attention in sixth grade when we were doing Dikduk and sources of lots of Hebrew language words, that what is the word in Hebrew for ownership? A ba'al is someone who is an owner. is someone who buys something. But what is the word to own something? To have ownership over something?

It’s not 'cause that means the buy, there is, as far as I know, there is no word. I can stand to be corrected, but there’s no word exactly for ownership. And that becomes very interesting, because when we look at the idea of our bodies and ownership, our bodies were taught we don’t know. We’ve been created, men and women, in the image of God, tzelem elohim, and our bodies in essence are on loan to us. Sort of the imagery that is invoked is the idea that we’re not owners of the condo, we’re not owners of the co-op, we’re merely renters. And we all know those years, whether some people still might be renting or when you did rent, you have to pay security. And when you return the apartment in good working order, what happens? You get your security back. So for us, this idea is we have to then treat our bodies with a certain level of reverence because, particularly, we don’t own it. Now what makes that so important is then what happens regarding medical decision making. Now, by the way, that is a question that comes up in general, in Jewish medical ethics, beyond just the abortion one, because it’s not just about the beginnings of life, it’s about the end of life. We can do another lecture on that. I’m not going to go into big detail about that now.

But the question is, “Do we have the right to refuse treatment? Do we have the right?” This has also come up, “To donate organs?” Think about that. If we don’t own our bodies, do we have the right to donate organs? And you would be surprised that the answer, not uniformly, come on, two Jews, three opinions, the very few things we agree on, I always say, “The only thing we all agree on is we all love good Jewish food.” That’s one thing everybody agrees on. But what’s very interesting is that where we find rabbinic dispensation of when and how you can actually donate your organs, even if you don’t have ownership over your body, even if you don’t have ownership over your limbs and parts of your body. But here in this particular casing, what becomes then the guiding principle when connected to abortion? And from what we begin to see is that the rabbinic concern is really, first and foremost, with the mother. While at the same time recognising the fact that after a certain point, a foetus develops more of the potentiality of life, and therefore to terminate it requires, we have to approach this with a great deal of reverence. And it also means that if we’re going to terminate a pregnancy, there has to be a very, very strong reason for doing so. So that already then takes it us in a different direction than from what we might ordinarily think about in terms of health, sometimes we might define pro-choice.

Although by having that choice, a woman can discuss it with her authority, with her rabbi, with her doctor, to basically figure out what are the risks to her and her life and wellbeing. Now what’s interesting is the Torah and the Talmud, and just rabbinic literature and what we see, for the most part, have only spoken about the risks to a mother’s life and by extension, her health, because the rabbis were also concerned that she might not die, but it might be that if this pregnancy goes through, she might never be able to have another child again. So is that a reason for having to terminate the foetus? But what’s fascinating is that it’s really only around the 17th century where we see the question of, “Does risks to a woman’s mental health come into play when making a determination like this?” And there was a famous case, that someone came to Rabbi Jacob Emden, who was a big authority. And this woman told him the following, which was that, she was married, she had children and she had an affair. And the man she had an affair with, she got pregnant and here she was pregnant. She’s still married to her husband.

If a woman does not have Jewish divorce and is carrying someone else’s child, that child will be considered a mamzer. We don’t have in Jewish law the same idea of illegitimacy that you find in the secular. It’s not about not being married. On the contrary, it has to do with, if you’re married and you have an extramarital affair and the woman finds herself pregnant, that child born will be a mamzer. And mamzer can only marry another mamzer. And people have said, “Why such a terrible penalty? Why blame an is an innocent child?” And one of the answers that’s given is they wanted to have extreme deterrent because of what the penalty was. In this case, the woman came to Rabbi Emden and said, “I’m losing my mind. I’m going to be a pariah. I feel like I’m going to kill myself. I can’t go home. I can’t face my husband, I can’t face my community, I can’t face my children. I can’t go forward with this pregnancy.” Rabbi Emden looked at it and what he determined was, he said, “Because of .” Because of such great need of the risk to her mental health, he then allowed for the abortion.

So we have here then a very interesting idea that then becomes further developed, in modern times, where once foetal, they were able to detect some terrible, I remember as a very small child, my parents had a friend, a couple, who had not one but two Tay-Sachs children. You wouldn’t wish this on your worst enemy. Child’s born, looks healthy and then dies of very gruesome death, it’s horrible, 'til they lived to maybe a year old. It was horrible. So people were going to the rabbis, when they were beginning to have technology, they could diagnose it, as I said, “It turns out I’m carrying a Tay-Sachs child.” But today they do genetic testing in a lot of orthodox communities, they try to make sure that two carriers of certain genetic diseases don’t marry each other. In some cases, sometimes they’re able to do, if if it turns out they’re already married, certain kind of of in vitro, so that they would not then allow women to carry a potential foetus that is identified as carrying Tay-Sachs. So today, thank God, Tay-Sachs has been very, very rare. But there are other disabilities and in fact the Tzitz Eliezer, Rabbi Eliezer Waldenberg, he was major halachic authority. In the 1960s, he was approached by woman who said, “I’m carrying a Down syndrome child.”

Now we’re going back, you know, 55 years ago. It’s different than today in terms of therapies and interventions and all types of things, but in those days, a lot of people to carry a Down syndrome. There was no hope, they would institutionalise the kids, in some cases they were really severely mentally damaged. And the pain, that sorrow for the woman was so great that that’s why she was seeking an abortion. Rabbi Eliezer Waldenberg at that time had allowed an abortion as late as the sixth month. And of course the other questions, “What about, if god forbid, someone was raped? What about cases of incest?” So there you see it isn’t a risk for mother’s life, but rather it’s a risk to her mental health. And the rabbis, by and large have been very liberal about that. In more recent times with the popularity of fertility drugs, today it’s I believe a bit better. But we know, we’ve seen, what happens if a woman is taking fertility drugs, and she’s carrying eight foetuses? The question is whether you can do foetal reduction? Can you reduce down the number of foetuses she is carrying?

And the way the rabbis looked at that, was the fact that you couldn’t decide, “Okay, I only want boys, I only want girls.” They said you could reduce it down because of the mental stress for the woman that if she didn’t, she could lose all of them. Again, the difference also about this is, this is very early on, so a lot of it sort of falls into that area of what we spoke about where it says that at the first 40 days a foetus is considered maya b'alma, it’s considered mere fluid, mere water. It obviously gets more complicated further down the pipe, because we find other sources in the Talmud that for example, talks about, What happens if a pregnant woman is injured on Shabbat, and she maybe has already died? They say, “Can we try to save the foetus?” Well, if it’s not a person then are we being violating the rules of Shabbat? Are we being Machala Shabbat? And they say, “No, because let’s try to save this foetus slash child, even though it’s not fully a person, so that it will have many more Shabbatot, will have many more Shabbats to observe. So we see then within the rabbinic discourse, this idea of the potentiality of the foetus and therefore that really comes into play.

I would say overall, if we had to kind of identify sort of the attitude here, it would be, "Is Judaism pro-life, is Judaism pro-choice?” I like to think of it within the spectrum, of that Judaism is pro-woman, because the woman lives in the here and now. She has the priority, her life comes first. However, at the same time we don’t find sort of a value dismissal of just saying, “Well, the foetus is not a life, who cares?” The examples that we find that Rashi’s talking about, that Rambam’s talking about, seems to be kind of, much more developed. Where they say, “You see, if the foetus is already like, it’s like we’re already in labour, what do we decide to save?” Now, point of fact, what we find, you could even find it in orthodox hospitals in Israel, they’re always going to try to save the woman. There’s no question about that. But I think what it touches on is a complicated picture that Judaism, and I don’t like just saying Judaism, you know, 'cause some might say, “Well, there are different Judaisms.” Or, “There are different approaches to it.” And in fact there are, because we can find some rabbi who say, “You see, the problem with abortion is that it’s almost like fetuscide.” Which is almost akin a homicide. But there again we find that word akin, but what are they concerned about?

They’re sort of concerned about the moral fabric of the country, whatever country you’re in. And I’ll get to Israel in a minute because I think it’s an interesting model. What’s going on actually right now as we speak? And that is that when we look at the rabbinic attitude towards abortion for non-Jews, we find something a little bit different there. They are concerned sort of about the level of morality among non-Jews, let me also be very clear about this, we’re talking about people who were pagans, you know, it’s not part of like a multicultural, you know, Judeo-Christian, Muslim, Hindu, variety of religions that we find in the United States, and everybody respects each other. So they were concerned about sanctioning abortion because they felt that it violated the Sheva Mitzvot B'nei Noach, the seven Noahide Laws. But they ended up basically saying, “We can’t have more of a stringency for non-Jews than we have for Jews.”

However, in the modern era it was very interesting, because the Rabbi Chevere, of blessed memory, he was very focused on, kind of sharing the idea of the Noahide Laws among non-Jews. And therefore he had concerns about just abortion in the United States, not so much even for Jews, but for non-Jews because of this question. So we find even today a different attitudes. One of though, the interesting things that happened in Israel, is in Israel of all places, where you don’t have a separation of church and state, and often you have such incredible disputes going on, in Israel, a person can go to a private doctor, if they decide they want to have an abortion, kind of no questions asked, but in hospitals, and remember, this is paid for, it’s part of Kupot Holim, this is paid for as part of your services, your healthcare services if a woman wants an abortion, they would appear before a committee of a doctor or social worker, psychiatrist, maybe in some cases a rabbi is there, and in 99% of the cases, they would say it was okay.

Now in Israel you have two organisations. One is called Efrat, not the community founded by Rabbi Riskin in Gush Etzion, but it’s a different, has nothing to do with, one is called different Efrat, the other called Just One Life. What they do, I know I’m familiar with Just One Life, is that they’ve been given permission to approach women who’ve decided and been given permission to have an abortion for monetary reasons. “My husband’s out of work, I already have three children and there’s no way we can afford it. If we go through with this pregnancy, I don’t know how I’m going to put food on the table.” And Just One Life approaches them and if the woman agrees, they offer prenatal care that they take care of, they offer care and diapers and baby formula and food for the first year, and now they’re even offering social services beyond. From what I understand, just one life does not approach women who are having abortions because of genetic testing was done. They don’t approach women on that. But this is kind of an interesting model and from what I read, Israel either abolished that you have to seek permission during the first trimester or now maybe they only do it on Zoom because of sort of from the pandemic. I was trying to find out. But it’s an interesting model, where Israel doesn’t have a constitution. Israel has a very delicate balancing act of the rights of secular people, the rights of religious people, how do you write laws?

So this is an interesting method and it’s paid for, as I said, through Kupot Holim. I found this just as a model fascinating because in the Monday’s “Wall Street Journal”, there was an article that said, “On abortion, John Roberts stands alone.” And he wrote a concurrence. He didn’t join in officially exactly as part of the, he was opposed to the reversal Roe v Wade, and he was looking for some kind of middle ground. And his middle ground, if you find this article, which is very interesting, was that he was saying, “Well, you know, maybe can we go along with, 15 weeks is sort of the cutoff, that up until then, no questions asked. And after that, then it would have to be the life or health of the mother, or some kind of severe developmental disabilities.” But again, trying to find then that after that point, which is about the time traditionally in American law and the British common law also quickening when the baby, you begin to feel it kicking. And we seem to convey sort of more of this idea of personhood. He’s tried to kind of have like a middle ground. And what was interesting was that his middle ground was completely and totally rejected by everybody.

The people in support of maintaining Roe v Wade, they weren’t interested in it. And the people who were interested in repealing Roe v Wade, they weren’t interested. And I thought about it, because I said, in some ways it represents a little bit of what we see. It’s not exactly, but what we see in Jewish tradition of trying to get grapple with what we might see as as the competition here. But by and large, if we have to kind of have a sound bite, I would say, as I said, I don’t feel that our tradition is pro-choice. I don’t feel that our tradition is pro-life. I feel that it is pro-woman with a recognition of reverence and some type of extenuating circumstances that is going to allow somebody to terminate potential life. Now again, the question then becomes, which has become a question in the United States, is that in New York, if an Orthodox Jewish woman needs to have an abortion for any of these reasons, she can get it. But what happens if she’s in Texas or it’s not allowed, or somewhere else, et cetera. But they don’t have an exception, one of these exceptions.

So from a religious freedom perspective, that would seem to be an infringement on our religious rights. And what’s happened is that committees are developing to try to raise funds, for both Jewish and non-Jewish women, who need abortion for these reasons. Now, I would just say something to think about is that I think one of the things that has been fueling, even though it happens very, very rarely, but again, it impacts on that idea of is there a coarsening, is there a lack of reverence or just the sanctity of life? Because the four principles that form a commonly held pillars for moral life that were developed at the Kennedy Institute for Bioethics that I read from the beginning. The one thing missing from that is any idea of the sanctity of life and that affects arguments. Does the state have an interest to come in to protect someone from committing suicide, even if they’re in terrible pain? Does the state have a right to come in and to protect potential life, even if the person, it’s not a person, it’s a mother, it’s a woman, has other interests, and whether her interests trump the state’s interest in trying to protect potential life. What we see in Halacha, is that by and large, that it just always goes with that the woman’s life, her health and wellbeing always comes first.

But since the rabbis recognise we all were once blobs of cells, we were once all foetuses, it’s a recognition that the reason for having terminating that future child, that developing foetus soon to be a baby, has to be very high. And one of the things that I mentioned that, you know, perhaps many people found very upsetting, was that in certain states, including New York, where they revised the penal code to free doctors from facing any kind of murder charges, apparently it was in the penal code here is, an abortion gone bad, where instead of the foetus being aborted it’s born. And what fueled a lot of conversation was the idea of like, “Well, if this is like an abortion gone bad, what do you do when that child is born?” And when a number of people said, “Well, you just sort of leave it there, you put a blanket over it.” I think that was where people kind of had to take a step back and say, “Wait a second, should we have any limitations here? Now we’re talking about a baby that’s born, even if it was really not wanted or it was from a mistake, et cetera, we’re not going to, we’re not going to treat it.”

So I think that shook up a lot of people, and fueled some of the question about what Roe versus Wade was based on, what the Casey case looked at. And while a little bit we see in the current case, which is that Sandra Day O'Connor, the first woman on the Supreme Court, in 1992 said, “Roe versus Wade is on a collision course with itself.” She said it, “Because of the fact of changing technology, that if you’re saying the state has an interest of protecting potential life.” What is it? It’s the ability to live outside the womb, and then Casey said, “Well, that means that viability is now happening earlier.” And in fact, I know some people, it was amazing, they went into early labour, gave birth at 26 weeks, Baruch Hashem, have beautiful daughter, a beautiful son, et cetera. So the technology changed and along came Casey and said, “Well, we’re going to use an undue burden standard. We’re going to say that if it imposes these restrictions, undue burden on the woman, then they’re not constitutional.”

Which would certainly be the case of forcing someone who their life can be at risk, their health can be at risk, their mental health can be at risk, but would it mean that it’s an undue burden if they have an economic burden, et cetera? And that’s I think that is something sad, in America that we don’t have a support system that we should have for people who decide to go ahead with not having an abortion. Where certainly it’s allowed, there isn’t enough of that kind of support system to help families and to help women. From the Jewish end of it we see, because we have a reverence for life, just to kind of sum up and then I’ll take some questions, is that the woman’s life and health comes first, no question about it, but this idea of recognising the potentiality of the foetus very much weighs on the rabbis and very much ways in terms of decision making, and certainly ways I think on the minds of anybody who was seeking this out, this is something that one does willy-nilly and therefore the stakes are very high.

So I’m going to stop there and if Lauren just wants to help me with some of the questions, I’m happy to see what they are, any of the comments.

• [Lauren] Absolutely. So one of the questions, I believe at the beginning of your talk, it references that, “Why does the husband get damages instead of the woman who suffered the miscarriage?”

• Right, so certainly what we know from biblical times is, women’s autonomy then is very different, in fact it’s one of the core ideas that in the Jewish marriage contract that the husband owes, there was financial support, he must give his wife, if they decide to divorce. That’s just the way it is. She’s part of the family unit. If he gets the damages, it means she’s going to share in it. So that would be the best way to explain it.

• [Lauren] Thank you. Here’s another question. “When in Jewish law is life considered to be a person then?”

• So that’s great question because as we see, it seems clear they say in the first 40 days, no. Early on, no. But it seems to be a standard developing personhood and therefore to, I would say to stop its potentiality to become a full person, there has to be a very strong reason that would concern the risks to the mother’s life, her health, wellbeing, including her mental health. So in Judaism, we don’t believe that life begins at conception. In fact, we have a very different view even about embryos. The question came up with, “What happens when embryos are created and they’re sitting in deep freeze and then someone decides not to use them. Can they just be discarded?” And you’d be surprised to find out the answer is, yes, because that will form life, but it is not a life at that point.

• [Lauren] Thank you. Along those lines, someone’s asking, “If the remains of an aborted or a miscarriage foetus, can they receive a Jewish funeral since it’s not a life.”

• Right, so that’s a great question, also, because any time, for example, any part of our bodies, blood, anything we saw this, never should happen, shouldn’t have anymore of like terrorism in Israel, you would see people coming from ZAKA, it’s like this emergency squad to pick up every piece of flesh to have it buried. Because that’s the point, we have reverence for our bodies. We don’t technically, it’s fascinating, because the laws of mourning do not apply, technically, if a child, maya b'alma, who dies in the first 30 days, doesn’t mean they’re not a person. That’s not what it means, it just means, I think the rabbis, because child mortality was so high, I think they felt they didn’t want to burden parents with continual mourning, because it was common sometimes for women to go through many pregnancies and not just have miscarriage, but just have many times children die, either at birth, stillbirths or during the first 30 days. So they said the child has to be buried. More and more today, what’s interesting, even in the orthodox world, people need a sense of closure, they need something. They they will have a burial, they will have a ceremony, they will do something, but technically, they don’t have to say Kaddish for a child that died in the first 30 days, but often they’ll name it, they’ll sometimes give a bris. So that again, that I think shows us reverence we have to take and we certainly see when it comes to, it was a burial, how significant what we can and can’t do about someone who’s about to die, someone who’s died, et cetera.

• [Lauren] Thank you. “So what will the effect of the decision of the Supreme Court be on Jewish permitted abortion?”

• So I think the problem for Jewish women, from a halachic point of view, if they live in a state that doesn’t give any exemption for these reasons of why you would have an abortion, they’re going to have to go elsewhere. That’s why people are trying to set up a fund. In general, people are trying to set up funds for women who are not giving reasons for it but want it now. Now one thing I didn’t deal with is also we don’t know, you know, the technology has changed for terminating pregnancy, it changed the great deal in the last 50 years, you now have an abortion pill, which the kind that takes place right away. So it seem that also fits in that first 40-days spectrum. So halachically it might be better, but it means that the question is whether our religious liberty would seem would be at risk if you live in a state that certainly doesn’t have any of the exemptions that from a halachic point of view would permit one to have an abortion. Now it’s a little bit of a subtle thing here, because again, the whole idea of saying, “My body, my choice.” As I began with, we don’t exactly own our bodies. The choice is being made on something different. I’ll tell you something interesting, I think, you know, many of you maybe have seen this, is that earlier this year I went with my husband, he went to cover CPAC, which is the Conservative Political Action Conference, very conservative organisation, small sea, and when we walked into like the main ballroom, and he was going to go interview, I saw people holding up signs that said, “My body, my choice.” And it’s kind of stopped me in my tracks, I said, “Gee, I wouldn’t think I would see here people who are pro-choice.” And then all of a sudden I said, “Oh, no, I now understand what this is. They’re not talking about, 'My body, my choice.’ Vis-a-vis abortion, they’re talking about my body, my choice vis-a-vis vaccines.” So it’s very interesting how sometimes these slogans can be shared by people in two very different contexts. But that idea of what we have is that in Judaism we have that choice that we can seek out rabbinic help if we, God forbid, have to make a decision like this, and what does Halachah say about it and what is the rabbi’s view about this and what we can do.

• [Lauren] Thank you. Someone is asking, “Why is it then okay to use technology to save an otherwise unviable foetus?”

• Say that again? Why is it?

• [Lauren] “Why is it okay to use technology to also save what would otherwise be considered an unviable foetus?”

• To save? I’m not sure I understand the question. Why can you save an unviable foetus?

• [Lauren] Yeah.

• You mean a foetus that doesn’t have the ability to live outside the womb, but we’re going to try to save it so the woman doesn’t have a miscarriage, is that right?

• [Lauren] I would assume so.

• Okay, because that of that quote that we have from the Talmud that says, “We’re going to do all we can to save this foetus. It might not be viable now, but hopefully it’ll be saved and it will one day be born and be someone’s daughter or son. So that we’re going to pull out all stops even on Shabbat.” You see, in the hopes of saving it. So that, because it’s a pro-woman view, it’s also a pro-natal view, but the priority will always come out on the woman because she is in the here and now. The examples that we see from Rashi and also from Rambam, we’re talking about, but like if you’re in the throes of labour, you can’t really say, “Okay, you know, can we save the woman and let this child, the head’s coming out, what do you do?” So they’re saying something that I don’t think, you know, in the main is followed, which is the doctors are going to try to save both, but with limited resources, if that’s the case or whoever has, you know, the greater chance of surviving, they’re still going to try to save a woman. We should never be in these situations. But it’s trying them to show what I see as a very incredible pro- woman approach. This particular issue, again, as I said, the recognising, the reverence of that you have to approach a foetus and it’s different. It’s different than just sort of a generalised view of how we define pro-choice in America, at least up until Roe v. Wade.

• [Lauren] Someone else is asking, “Has the initiative to resend Roe v Wade derived from Christian theology? Or where do you think that came from?”

• I think that’s a good question. I mean, it’s supposedly, if you read the decision, it’s under the rubric that the constitution says nothing about this. Many people have said Roe v Wade was poorly, it was more read like something a legislature would say, as opposed to a judge and a group of judges. And there even Ruth Bader Ginsburg was critical of it. She said she supported abortion, but she didn’t think it was a well laid out decision and they’re saying, “It’s on the constitution, so we’ll send it back for Local Review.” Now, I do think that a number of them probably do believe that life begins a conception. So therefore they could be, you know, from their faith point of view, they could be terribly disturbed by that and that could be there, you know, but they, I think, perhaps they’re seeing it in the constitutional terms, but they’re seeing it from a prism that, just to allow a state, you know, it’s one thing we could say, just let’s say at the most minimal standard. It’s one thing to say, “Okay, you can have an abortion with just no reason up until 15 weeks. But after that you have to, like come in with some kind of reason.” But to have in states where there’s no exception for the life or health of the mother, for rape or incest, then that would seem to imply that you then believe that life begins a conception, and therefore that would not be in a multicultural country. How do you have that? Because then that’s the problem. Our religious liberties then are being constricted.

• [Lauren] Thank you. “Do you envision lawsuits based on freedom of religion in states where there are currently no exceptions?”

• I saw, I don’t know if it was last week or two weeks ago, a synagogue filed a lawsuit. I don’t know if they could be deemed to have standing, but I’m wondering if that will come back to the Supreme Court of somehow case that said, “My religious liberties agreement infringe upon.” Now the composition of this courts takes religious liberties very seriously. So I’m wondering if down the road, I mean, they think, “Oh, we’re not going to have like a lot of trouble from this.” Could be a lot of people coming in and saying, “If you don’t have exceptions, it’s infringing on my right to freedom of religion in this country, and you are imposing a standard on everyone, it requires judicial review.” But I don’t predict, I’m not good at predicting these things, but it’s very, very troubling.

• [Lauren] Thank you, and I think if you have time, we’ll just do one more question. “Rabbis teach us, the foetus is taught the whole Torah before birth, but loses all that knowledge at birth. So does that not mean the foetus has some rights before abortion is a possibility? Or what does that imply?”

• Well, I think, you know, there are examples, I think it’s a difference between a nefesh and then neshama, because that’s what we see. This was by the way, very popular question, that some of the Romans would ask the rabbis, “Does it mean that a foetus in utero, if it’s not a life, does it have a neshama?” So it could be that that’s how they see it. And it’s obviously, it’s a very difficult balancing act, and the approach is different than just saying abortion on demand. That’s not something you’ll find within Jewish texts. It’s rather going back to what we’ve seen of the Rambam approach, of Maimonides approach, that a foetus is considered akin. He says, “Akin to a rodef.” Does that mean akin, i.e, akin to a person and therefore it has to be treated with a certain sense of reverence? But the idea that a foetus is taught all the Torah and then loses it, I think that sort of falls more on the neshama and the soulfulness versus the personhood.

• [Lauren] Thank you so much. Thank you for an excellent, excellent session. And I’m going to hand over to Wendy.

• Yeah, thank you. I’d just like to echo that. Thank you, Adena, really, it’s so interesting to listen to you speaking about the rabbis who, you know, based their premise on empathy and compassion versus the political experiencing which we’re seeing today. So I’m now going to hand over to Dennis, your old friend, just to say thank you on behalf of Lockdown University. Thank you.

• Adena, that was wonderful. Always wonderful. I’m a big fan of yours and I made sure that I was listening today. I think you’ve done such an amazing job of showing how complicated this issue, how complex it is and how many permutations there are. Every single case is different and needs a huge amount of sensitivity, including a discussion with the father or whoever’s involved with the child, as to what’s the best way to do this, and that clearly you’ve explained so well how both the mother and the child and the foetus are so important. So I think the whole idea here is that, we take time to discuss it with the rabbis, with the doctors and do what’s best for the mother and the foetus, but always to make sure that the mother’s life is not endangered. So thank you so much. It’s wonderful to see that.

• Thank you for having me. And great to see you. And Wendy.

• Thank you so much.

• All right.

• Thanks, Lauren, thanks Adena, thanks to all of you for joining us on Lockdown today. Enjoy the rest of your evening and your day. Bye-bye.