Rabbinic Reflections: Religious freedom

With the recent announcement that Justice Kennedy is resigning from the Supreme Court, much of the media has rightly focused on Roe v Wade. What strikes me in the coverage is the place given to religion. If religion is mentioned at all, it is thrown in as a monolithic characteristic of either President Trump’s base or the Republican base. In my experience, religions, their clergy, and their parishioners are far from monolithic.

In an attempt to broaden the conversation, I will walk the fine line of teaching the Jewish perspective on abortion without taking it to its political conclusion. Likewise, let me be careful to say that what I mean by “the Jewish perspective” is the Jewish tradition’s legal response to the question of abortion. Individual Jews make personal decisions, often but not always based on this perspective. The Jewish perspective as a legal matter goes beyond law into questions about the beginning of life, ensoulment, and the sanctity of life.

Let us start at the beginning. Jewish law does not consider the fetus to be a life separate from its mother. Judaism only gives the status of personhood at birth, specifically when the head of the baby crowns during childbirth (Mishnah Ohalot 7:6), though some read the text to mean any major part of the baby. In contrast to the belief that life begins at conception, the Talmud records that prior to 40 days the fetus is considered “mere water” (Babylonian Talmud, Tractate Yevamot69b). Judaism recognizes the fetus’s potential for life; it just considers the fetus to be part of the mother, based largely on Exodus 21:22-23.

The Jewish perspective splits slightly on abortion from this defining consideration. Just because the fetus is not a life does not immediately mean that abortion should be permissible. That Mishnah(a codicil of Jewish law recorded in the year 200 CE) in Ohalot permits (forgive the image) removing the fetus limb by limb to save the mother’s life even during childbirth. The mother’s life is considered a known quantity and takes precedence. More conservative Jews throughout history have held that abortion should only be permitted if the mother’s life is in mortal danger. More liberal Jews throughout history have held that the life of the mother includes her mental health and well-being, some more broadly than others.

The overarching religious principle here is that the mother’s life is sacred. Her body and her mind are paramount, even over the potential life that the fetus represents. All of the above says nothing about the baby’s soul. Some Jewish sources place the immortal soul in the womb for education from early on in pregnancy; others distinguish between that version of the soul and the divine breath that gives soul to a person. Regardless of which kind of soul, all agree that the soul does not die if the fetus is aborted.

The soul is a great place to conclude this teaching. Too often, we speak at people rather than with them. What might we learn from each other about different traditions if we spoke with each other? Where might we find agreement or disagreement in some areas of policy and appreciation for where the other is coming from? Mostly, I wonder how speaking religiously might give soul to what otherwise sounds like shouting.

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About Rabbi Jeremy Winaker

Rabbi Jeremy Winaker is the head of school at the Albert Einstein Academy in Wilmington. Prior to that he was the senior Jewish educator at the Kristol Hillel Center at the University of Delaware for four years and he served as the rabbi for Bet Torah in Mt. Kisco, N.Y. and Adas Israel in Washington, D.C. He’s also one of several rabbis taking part in a radio show, The Rabbi Speaks, on WDEL. Rabbi Winaker lives in Delaware with his wife and three children.



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