Free Exercise

As the country waited for word this week from the Supreme Court on its decision regarding a law in Texas that bans abortions performed before 6 weeks of pregnancy, a woman wrote on Twitter that the new law violated her rights as a Jewish woman. Some non-Jews replied with curious questions. How could she make such a statement? Others answered that Judaism allows abortion because the tradition does not consider the fetus to be part of the mother and not a living being.

In fact, the Torah itself plainly supports this perspective. Exodus 21:22-23 states:

When men fight, 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 reckoning. But if other damage ensues, the penalty shall be life for life.

The verses do not deal with abortion but a case where a woman is pushed and miscarries by accident. According to the Torah, the man who pushed her and caused the miscarriage does not receive the death penalty for murder but rather a fine for damages.

From this text, Judaism derives the principle that a fetus is not a full person, which doesn’t mean that all sources and rabbis throughout the centuries have permitted abortion. Some have opposed it, but virtually no rabbinic authority subscribes to the Christian belief that life begins at conception. In fact, many important decisors have permitted abortion when the life of the mother is in danger and even in cases when her physical or mental health is at risk.

The abortion issue is often presented as conflict of religious and secular values. People of faith are pro-life while the unreligious are pro-choice. But what if we reframed the debate as one of religious freedom? Jewish women, faithful to their tradition, should have the right to an abortion if their tradition allows it.

Of course, abortion opponents would respond that just because a religion permits a practice does not necessarily mean that the law should allow it. An example might be American Indian religious traditions that use psychotropic drugs as part of their rituals. In the past, these drugs were banned, but Congress and the courts have now recognized that these drugs are a central part of a religious tradition and are now legal if taken as part of the Native American Church.

Again, anti-abortion groups would argue that there is a difference between drug use and what they consider murder. For them, it is inconceivable that the government could sanction what they call the killing of children no matter the reason. On the other hand, under the ban recently imposed by Texas, Jewish women feel that they are not able to freely exercise their religion. Would they win in a court case? I am not enough of a legal expert to say, but as a supporter of abortion rights and a rabbi, I would like someone to try. If anti-abortion groups can get creative with the law, why can’t pro-choice groups do the same?

The new Texas law not only ensures that it is virtually impossible for women to have an abortion, it deputizes citizens to enforce the law by encouraging $10,000 bounties if they win their court cases. No matter what position one takes on abortion, the idea that the government would outsource its enforcement power to ordinary citizens is not only insane, but cruel as well. What kind of society does that create, where people are given an incentive to take their neighbors to court over an issue where they themselves are not the injured party? No matter our beliefs, a truly thriving society is not one where we see each stranger as a potential litigant but as a potential friend.

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