Dear Friends:
In my message two days ago I discussed the likely prospect of the Supreme Court rescinding its 1973 Roe v. Wade ruling which guaranteed the right to abortion prior to fetal viability everywhere in the United States. I explored the Jewish halachic attitude to abortion and showed that:
There is no basis in Judaism for the claim that the fetus is a full human being from the moment of conception; full personhood begins at birth.
Judaism not only permits but requires abortion in cases where carrying the fetus to term poses a serious risk to the physical or mental health of the mother.
In essence, then, laws which ban abortion and make no exception for the health including the mental health of the mother essentially force Jews to follow Catholic and Evangelical teachings rather than those of Judaism. The threat that abortion bans pose to the rights of Jews in this country cannot be overstated. (While many of the passed or proposed abortion bans in red states do make exceptions for the physical health of the mother, in failing to make exceptions for pregnancy caused by rape or incest they do not take into account the mental health of the mother and would thus prevent Jews from fulfiiing their Jewish religious obligations.}
The Orthodox community in this country over the last few decades has increasingly sided with the Catholic hierarchy and conservative evangelicals in opposing same-sex marriage and other expansions of LGBT rights and in supporting the right wing and religious parties in Israel. Orthodox Jewish voting patterns in this country are vastly different than those of the rest of the Jewish community. Yet in the wake of the leak of Justice Alito’s draft opinion, the Orthodox Union issued a statement which noted that “Jewish law prioritizes the life of the pregnant mother over the life of the fetus such that where the pregnancy critically endangers the physical health or mental health of the mother, an abortion may be authorized, if not mandated, by Halacha and should be available to all women irrespective of their economic status. Legislation and court rulings-federally or in any state-that absolutely ban abortion without regard for the health of the mother would literally limit our ability to live our lives in accordance with our responsibility to preserve life.”
The intersection of law and religions in this country is complicated. During Prohibition, there were exceptions which provided “sacramental wine permits” to Catholic churches and synagogues for the use of wine during religious rituals. In 1990 in Employment Division v. Smith the Supreme Court ruled 6-3 that the State of Oregon was within its rights to fire two Native American employees who used peyote as part of a religious rite.But in 1992 a unanimous Supreme Court (including Justice Thomas who is the only Justice still on the court from back then) ruled that the City of Hialeah, FL, violated the First Amendment rights of an Afro-Caribbean Santeria congregation by banning animal sacrifice. It held that the city could regulate it but not ban it entirely.
I do not anticipate that laws which ban abortion would have exceptions that allow pregnant Jews to obtain abortions which would be mandated by halacha. If the Supreme Court does indeed overrule Roe, states which ban abortion will violate Jewish religious rights no less than if they banned circumcision or kosher slaughter or obligated everyone to eat pork or work on Saturday.
As a reminder, The Jewish Federation of Greater Washington has established a Ukraine Emergency Fund to meet emergency humanitarian needs. You can find out more and donate here.
As always, if I can do anything for you or you need to talk, please contact me at rabbi@kehilatshalom.org or 301-977-0768 rather than through the synagogue office. Although I am working primarily from home, I am happy to meet you at the synagogue by appointment.
Shabbat Shalom,
Rabbi Charles L. Arian