, , , , ,

I delivered this speech to two Jewish groups in my community, and am posting it on my blog in honor of Reproductive Rights Shabbat. The speech relies heavily on the outstanding materials provided by the National Council of Jewish Women. Parts of the speech are taken word-for-word from the NCJW materials, with gratitude for their support.

Thank you for inviting me to talk to you about reproductive freedom.

I use that phrase on purpose, because the issue is much more than simply whether a woman can have an abortion, when she can have it, why she can have it, and where it is legal and where it is not.

Reproductive freedom has to do with a woman’s control of her own body and of her own reproductive choices. This includes when she chooses to have children, as well as whether she will have them.

I want to pause and note that there are those who do not identify as women who can become pregnant, including trans people. I will be using the word “woman” today but please understand that I mean anyone who can become pregnant.

Saying “I’m pro-abortion” or I’m “anti-abortion” oversimplifies a complicated issue. Saying I’m pro-abortion could imply that I support using abortion as a form of birth control for a person who’d rather have a series of abortions than use conventional birth control.

Saying I’m anti-abortion could imply that I would deny an abortion to a woman with an ectopic pregnancy, a pregnancy that has a zero percent chance of going to term, but a very high chance of rendering her infertile or even killing her.

Before I discuss Jewish law and values regarding reproductive freedom, we also need to acknowledge that different religions believe that human life begins at different stages of development. Science can explain developmental timelines, but philosophic and religious viewpoints largely determine what exactly defines life or person-hood.

What is undeniable, but is being challenged by fundamentalist Christians, is that the First Amendment of the US Constitution guarantees that no one religion should be enshrined in law or dictate public policy on any issue. The amendment begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Christians believe that life and therefore personhood begins at conception. Jewish law does not agree. In fact, the fetus is not considered a separate entity from the parent’s body until the onset of labor and childbirth; traditionally, not until the “head has emerged” during the birthing process and the child takes a breath.

This is linked to the creation of the first human in Genesis, when God creates Adam by first taking dirt from the ground and then breathing life into it. Adam did not become human until his first breath.

To be honest, the Talmud is completely wrong about the early nature of a fetus. It states that the fetus is “mere fluid” or “a drop of water” until 40 days of gestation. Afterwards it is merely considered a fetus, not a person. The “unborn” are not people and do not have individual rights.

As the fetus grows in the woman’s womb it is considered in Judaism as a physical part of her body. In fact, it is sometimes referred to as a rodef, a pursuer, because it  drains the woman’s own resources, leaving her more susceptible to disease, illness, and even death.

For a Christian ethos to dictate American laws regarding reproductive freedom is simply wrong in a nation that espouses freedom of religion. But the fact remains that civil law as it stands now in most states contravenes Jewish law and limits the free expression of Judaism when it comes to reproductive rights.

We do not believe that people of other religious backgrounds must adhere to Jewish law. We neither expect nor request that. In return, we expect that other religions do not use civil law to impose their beliefs on us.

Judaism prioritizes existing life over potential life, and affirms that protecting existing life is paramount at all stages of pregnancy. Since a fetus is not considered a person under Jewish law, it therefore does not have the same rights as a person who is living and functioning in the world.

The interests and needs of the pregnant person always come before those of the fetus. And it is important to note that this includes her psychological as well as physical needs.

Not surprisingly then, Jewish sources explicitly state that abortion is not only permitted but is required should the pregnancy endanger the life or health of the pregnant person. As I noted a moment ago, “health” encompasses psychological health as well as physical health.

I’ll say it again, because it bears repeating: Jewish law not only permits abortion but also requires it when the life and well-being of the pregnant person is at risk. This is reproductive freedom. And this freedom is not new – these laws come from the Talmud, an extensive compilation of texts that is nearly 2,000 years old.

In the real world, what does this mean? Some examples:

A married woman who lives with an abusive husband and has three children under the age of five is fully entitled under Jewish law to an abortion if she finds herself pregnant again. The number of children to whom she has given birth is irrelevant – five, ten, or none, the answer remains the same. The type of abuse is irrelevant – physical, verbal, or psychological, the answer remains the same.

An 18 year old woman who is on her way to her freshman year of college and discovers that she is pregnant, is fully entitled under Jewish law to an abortion.

A woman who has had trouble conceiving can choose to undergo in vitro fertilization. Please note that I am going to grossly oversimplify a complicated situation here. Sometimes several fertilized eggs attach to the uterus, and it is occasionally necessary to remove some in order to avoid high multiple births, which we know are inherently dangerous to the parent.

Clearly, this person has gone to great lengths and expense to become pregnant, but she and her doctors know that high multiple births are extremely high risk. The procedure can be considered an abortion, to which she is fully entitled under Jewish law.

An incident that recently went viral is the story of a 30-something-year-old woman who went to a doctor to have her tubes tied, a form of permanent birth control not dissimilar to a man having a vasectomy. The  physician refused, saying it’s possible that she might fall in love and get married someday, and her husband might want children.

She rightfully complained that “a fictitious man now has control over my body.” Reproductive freedom determines that she is fully entitled to the procedure under Jewish law.

A ten-year-old child who is raped can, and recently did, become pregnant. Although it is possible for her to become pregnant, it is virtually impossible for her to carry a child. Her child’s body is simply not up to the task. An abortion was necessary to save her life, both physically and psychologically, and is encouraged under Jewish law.

The bottom line is that Judaism considers abortion a form of health care. Jewish law teaches that providing appropriate and adequate health care is an integral part of the commandment regarding saving the life of a human being. To save a human life, one can break virtually any Jewish law. A fetus acquires that status only after it is born. Until then, it is the woman’s life that takes precedence.

It is remarkable to me that despite an often patriarchal view of women, in a religion where a father or husband has the right to contravene a woman’s vows, Judaism asserts that pregnant people are moral agents. They have the capacity, right, and responsibility to make their own decisions about their sexuality, reproduction, and family planning without political or external interference. I pray that this once again becomes the law of the land.

Thank you.

Relevant Jewish Texts:

Genesis 2:7: “Then God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.”

Babylonian Talmud Yevamot 69b: “[According to Rabbi Yehuda HaNasi]: If she is found pregnant, until the fortieth day it is mere fluid.”

Babylonian Talmud Gittin 23b: “What is the reason for Rabbi Yehuda HaNasi’s position [in a previous conversation]? He holds that a fetus is considered as its mother’s thigh [that is, as a part of the pregnant person’s body.]”

Babylonian Talmud Sanhedrin 72b: “Rav Ḥisda raised an objection to Rav Huna from a baraita: If a woman was giving birth and her life was being endangered by the fetus, the life of the fetus may be sacrificed in order to save the mother. But once his head has emerged during the birthing process, he may not be harmed in order to save the mother, because one life may not be pushed aside to save another life…The fetus is a pursuer who is endangering his mother’s life.”

Rashi, Rabbi Shlomo Yitzhaki, 11th century French commentator, on Sanhedrin 72b: “With a women that is experiencing difficulty giving birth and is in [mortal] danger. And it is taught in the first section [of this teaching], the midwife extends her hand and cuts it up and extracts [the pieces]; as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.”

Rabbi Jacob Emden, a leading German Orthodox rabbi, circa 1750: “The questioner asks about an adulterous married woman who is pregnant, and this is a good question. It appears to me appropriate to permit her [to abort]. And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge, even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain.”