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Op-Ed: Roe As A Jewish Issue, by Rabbi Marla J. Feldman, Director of the Commission on Social Action of Reform Judaism
There has been a great deal of discussion these days within the Jewish community about the nomination of Judge John Roberts to the Supreme Court, and its impact on matters of concern to the American Jewish community. We are acutely aware that this single appointment has the potential to unravel decades of progress in our social justice agenda.

Published in The Jewish Week
August 5, 2005


There has been a great deal of discussion these days within the Jewish community about the nomination of Judge John Roberts to the Supreme Court, and its impact on matters of concern to the American Jewish community. We are acutely aware that this single appointment has the potential to unravel decades of progress in our social justice agenda. 

The continuing viability of Roe v. Wade is uppermost in many of our minds. At stake is not only a woman’s right to terminate an unwanted pregnancy, but also the fundamental rights of privacy and religious freedom. 

Some have argued that reproductive rights are not a “Jewish” issue. This is just plain wrong. On the simplest level, all women — including every Jewish woman — in America will be affected by a change in the court that results in limiting the right of women to make such deeply private decisions based on their own faith and values. Embodied both in Jewish law and Jewish values is the notion that women are created in the image of God, entitled and empowered to make moral decisions. 

From the biblical period through the rabbinic period, in codes and in responsa, from ancient days until today, rabbis and scholars have wrestled with the question of when life begins and the ethics of abortion. The Jewish community has thousands of years of halachic scholarship to add to this modern debate. 

Although there are different interpretations of halacha, certain principles are normative. First, abortion is not banned even according to the strictest halachic interpretations. In fact, there are circumstances in which a threat to a woman’s life not only permits, but requires, an abortion (M. Ohalot 7.6). Second, the fetus is not considered to be a person (nefesh), invested with the totality of human rights and obligations, until it is born. Within 40 days of conception, a fetus is considered “mere fluid” (Yeb. 69b; Nid. 3.7, 30b). While vested with some status after that point, a fetus is considered a part of the mother’s body, comparable to a limb. 

Many of these principles derive from a passage in Exodus in which two fighters accidentally hit a pregnant woman, causing a miscarriage. The punishment for this injury is a fine, payable to the husband for the economic loss he suffers. (Ex. 21.22ff). Clearly, the rabbis did not consider a fetus to be a “person” or the punishment would have been for murder. 

This is not to suggest that Judaism takes these matters lightly. In fact, these questions continue to be debated by scholars and rabbis. Yet the overwhelming consensus of American Jewry supports the rights of women to make such personal decisions according to the dictates of their own faith and beliefs. If Roe v. Wade is overturned, Jewish women would be forced to violate halacha in cases where abortion is required. As a minority community, we cherish the freedoms this country grants us to make such difficult, life-altering decisions based on our personal religious beliefs. 

When the state substitutes its moral judgment for that of an adult woman, the slippery slope is frighteningly steep. We have already seen attacks on access to contraception and reproductive health education — ironically, many of the same groups that oppose abortion would limit the means to prevent unwanted pregnancies in the first place. 

We need to be clear about what is at stake in the effort to rollback the privacy rights outlined in Roe v. Wade: This is not just about abortion. This is about a woman’s right to make a private and fundamentally religious decision in consultation with her family and her medical advisors and in keeping with her own faith. It is also about citizens with one religious viewpoint trying to impose their views on others. It is as much about the Terry Schiavo fiasco and stem cell research as it is about reproductive rights. It is fundamentally about the constitutional right of privacy and the freedom of religion. Indeed, there is much at stake. 

Those who would have us turn back the clock on reproductive rights have forgotten our own history. Roe v. Wade was not decided in a vacuum. Before 1973, thousands of women died every year from unsafe, illegal abortions. These were poor women who did not have access to private clinics or the means to travel to other countries. They were young girls afraid to confront angry parents. They were women trapped in abusive relationships who saw no hope for their future. They were our mothers, our sisters, our daughters. I pray they will not have died in vain. 

The beauty of the Jewish legal tradition is that it builds upon our past as it adapts to the world around us. The same is true of the American judicial system. Let us hope our Supreme Court justices, new and old, will have the conviction to move us forward, not backward.  

 



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