(Image source: Julia Gergely for the Jewish Telegraphic Agency)

In the wake of the Dobbs decision and the abortion bans that subsequently went into effect in over 20 states, individual Jews, rabbis, and Jewish advocacy groups filed lawsuits in Indiana, Florida, Mississippi, and Kentucky objecting to the abortion restrictions. In these lawsuits, the plaintiffs claimed that the state’s abortion bans violated the religious freedom of Jews and others. To make the case that Judaism supports abortion, the plaintiffs often invoked Jewish law, or “halakha,” in their claims. For example, the Kentucky lawsuit reads, “While a fetus is deserving of some level of respect under halakha, the birth giver takes precedence. Jews have never believed that life begins at conception.” The Indiana plaintiffs agreed and added that Jewish law permits abortion until birth. The affidavit filed in Florida by Rabbi Barry Silver cites numerous Biblical sources as well as the “great icon of Orthodox Judaism Maimonides” who held that a woman had a “religious duty” to “abort her fetus up until the time of birth if the fetus threatens her physical or emotional health or wellbeing.” Silver claims that this is “an established precept of traditional Jewish law…and has become part of the shared cultural, ethical fabric of the Jewish community and all branches of Judaism today.”

I fully support any attempt to challenge these abortion bans. In fact, I wrote an amicus brief in support of the Indiana plaintiffs. Yet, I have reservations about the way these cases describe Jewish support for abortion by referencing ancient legal texts. In the context of the United States, where the legal system and the courts are increasingly adjudicating the contours of religious freedom, and both the text and intent of these abortion bans belie a conservative Christian point of view, it is understandable that Jewish activists invoke the language and discourse of Jewish law as a counterpoint. Biblical and Rabbinic citations are a marker of official or legitimate Jewishness in a multi-faith public sphere that often relies on religious texts to mark similarities and differences among traditions. Texts are also recognized as ancient, timeless sources of authority. Such texts can be appealing sources for activists in the context of legal briefs and policy statements, bolstering their authentically Jewish stances.

Yet, I maintain that there are a host of problems with the Jewish legal and rabbinic approach that Jewish reproductive justice activists are using.

First, this approach does not accurately depict Jewish views on reproduction. 79% of Jews in America believe abortion should be legal in all or most cases. This means that the vast majority of Jews believe people can and should make their own moral decisions about abortion, without limits.

The Jewish legal approach to reproduction does not support reproductive agency, or an individual’s ability to make their own decisions about reproduction. A foundational premise of the traditional rabbinic system is that an individual’s choices and actions are limited by the parameters of Jewish law. To support reproductive freedom, however, requires the belief that an individual is in the best position to make decisions about their own reproductive lives.

Second, most American Jews do not believe that observing Jewish law is an essential part of their Jewish identity. Therefore, a Jewish legal approach to reproduction does not represent the views of American Jews.

If Jewish activists are going to continue to advocate for reproductive justice on religious freedom grounds, I suggest that we develop a moral and legal framework for reproduction built on the trust that individuals can make reproductive decisions based on their own values, commitments, and self-determination.

The Problems with Using the Rabbinic Approach in Abortion Advocacy

The rabbinic legal approach to pro-choice Jewish advocacy doesn’t only show up in court cases. National advocacy groups like the National Council of Jewish Women (NCJW) also appear to rely on Jewish law and rabbinic literature to claim that Judaism has a permissive attitude toward abortion. For example, in source sheets the NCJW has circulated for Jews wishing to learn about Jewish views on abortion, they provide a Biblical source (Exodus 21: 22-25), three sources from the Talmud (Yevamot 69b, Gittin 23b, and Mishnah Ohalot 7:6), and statements from two Orthodox rabbis to show that “Abortion is not only permitted in Jewish law, but it is required when the life of the pregnant person is in danger.”

Since the middle of the 20^th century, rabbinic authorities and Jewish advocacy groups in the United States have drawn on a small selection of sources to proffer what they believe to be the Jewish position on abortion. Their theory posits two main claims about abortion. First, the status of a fetus is not equivalent to the status of a person, particularly the status of the person gestating the fetus. This conclusion is first derived from a reading of a passage in the book of Exodus (21:22-23). In this passage, two men are fighting with each other, and in the course of their fight they strike a pregnant woman who is a bystander to the brawl. A miscarriage results. According to Jewish readings of this passage (it has been read differently by Christians because of different translations), the punishment for miscarriage is a fine that the person who struck the pregnant woman must pay to her husband. If the pregnant woman dies, however, then the person who struck her is liable for the death penalty.

(Image source: AVSHALOM SASSONI/FLASH90)

Despite its prominence in contemporary discussions about abortion, this text is not about abortion at all. In fact, many rabbinic writings about the fetus were not about abortion originally. Although there is evidence that abortions were procured in late antiquity, the rabbis of the Mishnah, whose teachings were compiled around 200 CE, were not primarily concerned with abortion. Instead, they were concerned with figuring out when the fetus becomes a person (ensouled) and in making distinctions between enslaved and free pregnant bodies, among other curiosities about the fetus. Yet, this text in Exodus and the rabbinic texts that followed informed the acceptability of abortion. Rabbinic texts that explicitly mention the permissibility of abortion consider it to be permissible until birth. The medieval French commentator, Rashi, writes that the fetus does not become a person until its head exits the birth canal.

The second conclusion about abortion that is often derived from rabbinic texts is that there must be a reason, or a justification, for abortion. In the 12^th century, a writing by Maimonides, the famous physician, philosopher, and scholar of Jewish law, limited the permissibility of abortion. In his Mishneh Torah, he saw the fetus as a person, permitting abortion only if the continuation of the pregnancy threatened a mother’s life. Over the centuries that followed, some rabbis have read this narrowly, permitting abortion if the mother’s life is at risk, while others read it more generously, permitting abortion if the pregnancy was the result of an adulterous affair. In the late 20^th century, as medical advances allowed for the diagnosis of fetal anomalies, many rabbis also permitted abortion when there was a concern for fetal health.  Just one rabbi that we know of permitted abortion if a pregnant woman was concerned about her ability to care for existing children. Conclusions differed based on the particularities of a woman’s situation, the rabbi’s geographic location, and the rabbinical group’s desire to court Christian favor. Yet, what they have all shared is an agreement that an abortion can only be permitted if there is a reason—a reason that rabbis, not the pregnant person, deem to be good enough.

There are at least three problems with using these sources to defend a religious right to abortion. The first is that ancient rabbinic texts do not value reproductive agency—the very principle that liberal Jewish pro-choice advocates seek to promote. As I have argued elsewhere, these rabbinic sources promote a justification approach to abortion. The rabbis who made these rulings, as well as those who have written more recent rulings that draw on these sources, determined the circumstances under which women were permitted to terminate their pregnancies. These opinions start from the assumption that abortion is wrong but can be permitted when religious authorities – but not individual women – deem it justified. We have also seen a similar justification framework in the U.S since at least the 19^th century. Today, this approach is ubiquitous. It starts from the assumption that abortion is morally wrong but can be permitted—that is, justified—in certain circumstances like rape and incest. Abortion bans with exceptions are legal enactments of the justification approach. Jewish advocates of abortion rights need a clear, supportive statement of reproductive agency. They aren’t getting that from the texts they are citing.

The second problem with the textual approach to pro-choice Jewish advocacy is that almost all of the plaintiffs affiliate with one of the branches of liberal Judaism, meaning that they are not Orthodox. Just 9% of American Jews identity with Orthodox Judaism, yet activists advocating for reproductive justice are limiting Judaism to the sources and patriarchal authority structure of Orthodoxy. Liberal branches of Judaism (Conservative, Reform, and Reconstructionist, for example) have defined themselves in varying relationships to Jewish law. All uphold the importance of change and adaptation, responding to how the world changes over time. Approaching the moral permissibility of abortion from the perspective of Jewish law is a violation of the unique philosophies and theologies of each of these liberal religious movements. By centering Jewish law, liberal Jews are attempting to fit their own vibrant, principled, and equally Jewish commitments into the framework of Orthodox authority. This is particularly problematic because activists run the risk of obscuring the varied beliefs and practices held by the majority of American Jews.

By way of contrast, consider the liberal Jewish response when President Trump issued an executive order that banned entry to travelers from several Muslim-majority countries, including refugees from Syria. Just a day after the order was signed in January 2017, Jews attended mass protests at airports all over the U.S. They spoke about their Jewish values motivating them to oppose the travel ban. They invoked their own history as refugees, finding safe haven in the U.S. The Hebrew Immigrant Aid Society (HIAS), a Jewish immigrant advocacy group for over a century, brought a lawsuit against the Trump administration challenging the refugee ban. These activists were not referencing Jewish law about immigration, but rather a shared history and values that motivated them to advocate for others’ rights. This approach is more reflective of the general beliefs of American Jews, for whom 72% say leading an ethical and moral life is important, and 59% say that working for justice and equality in society is essential to being Jewish.

(Image source: Anna Moneymaker for Getty Images)

Perhaps the most important reason why the current Jewish reproductive justice approach is flawed is that Jewish law does not determine Jews’ reproductive decisions in the way that some of this advocacy might suggest. When we broaden our view beyond a narrow focus on abortion, a much more complex picture of the relationship between texts, rabbinical authority, and reproductive views emerges. In my research on Jewish reproductive practices and ethics, I have repeatedly found that Jews—of all denominations (and no denomination)—do not rely solely, if at all, on rabbinic law for their reproductive decisions. If they do turn to rabbis, they turn to their chosen rabbinic authorities with whom they have a relationship for guidance and support.

Moreover, I have found that women and others who can become pregnant make decisions about reproduction within the contexts of their lives. Choosing if, when, and with whom to have a child is one of the most consequential decisions in an individual’s life. When Jews are deciding whether to get pregnant and whether to continue a pregnancy, they are not thinking about it as an abstract moral question to be answered by Jewish texts. Instead, they are thinking about how a pregnancy will affect their health, their work, their goals. They are debating whether a child will impede their ability to take care of their current children, or complete their education.

When I spoke to Haredi (ultra-Orthodox Jewish) women in Jerusalem as research for my first book on reproductive ethics, they told me again and again that their rabbi’s opinion (itself a distillation of Jewish law) is irrelevant. Instead, these women—mothers to 5, 6, 7 children and more—felt that they had the authority to make reproductive decisions based on the fact that they were the ones who were pregnant. Although they would never use this phrase, their decision-making processes represent a version of “my body, my choice.” They claimed this religious authority over their bodies within a dense web of familial and religious relationships.  The Haredi women I spoke to held a deep sense of connection and obligation to their existing children, their extended family, their community, and yes, to themselves, all the people under their care. These obligations motivated their decisions.

Likewise, American Jewish women have been making decisions about abortions without turning to a rabbinic authority. In research I launched this summer, I began collecting abortion stories with several co-investigators from Jews who terminated pregnancies in the United States. The data is preliminary, but surveys and interviews from over 100 participants reveal that the vast majority of participants did not consult with a rabbi or any other religious figure before having an abortion. Some did and found rabbis supportive of their decisions. Some found community that helped them after terminating wanted pregnancies, usually because of medical reasons.

But the majority of our participants had an abortion because it wasn’t the right time for a child. This is also consistent with national research on why U.S. women have abortions. Many of those in our study were using contraception when they conceived and were grateful for the opportunity to terminate because it meant that they could continue on the trajectory they set for themselves. Women have shared that their families and their communities expected them to finish school, get a job, get married, and, when ready, have children. While many believe Judaism encourages reproduction, Jewish pronatalism exists alongside other reproductive values. Taken together, these are the Jewish values that support their abortions.

Within a justification framework that relies on centuries-old texts, these reasons are often not considered acceptable. In order to “approve” of these abortions, rabbinic law has to be stretched and adapted so much that any authority gained from referencing those texts is lost when Orthodox Jewish groups reject them as “abortion on demand.”

Playing According to Someone Else’s Rules

Another problem American Jewish abortion advocates face is that they are attempting to defend their claims of religious freedom against conservative Christians who deny their religious identity. Becket, a legal advocacy group that claims to be defending the “free exercise of all faiths” raised numerous questions about the religious sincerity of Jewish plaintiffs in the Indiana case. In an Amicus brief in support of the state’s abortion ban, Becket takes issue with the biblical and rabbinic sources and the way the plaintiffs read them. Additionally, they claim that the plaintiffs’ appeal to the concept of religious freedom is to “serve as a ‘cloak’ for their non-religious objections” to the law.

Becket’s brief reflects the conflation of “religion” with conservative forms of Christianity and the assumption that opposition to abortion is a religious universal. They refuse to accept that a religious belief in support of abortion is sincere. According to them, the only beliefs that are supportive of abortion are secular.

Becket’s objections are rooted in the history of religious opposition to abortion. In the 1980s, the Christian Right defined the basic terms of this debate. Although progressive religious groups have historically supported abortion in one way or another, the Christian Right convinced Americans that religion was opposed to abortion. The result was a complete dichotomizing of the religious and secular in the national narrative. The anti-abortion perspective was seen as wholly religious, while the pro-choice position was seen to derive from secular principles. This dichotomy continues to be reified not just by the Christian Right but also by pro-choice groups that distance themselves from religion. Liberal religious groups claiming to be supportive of abortion simply have no place in this narrative.

And yet, liberal religious groups continue to claim that they support abortion not despite their religious beliefs but because of them. Religious plaintiffs, Jewish and others, have been trying—for decades—to make a religious freedom claim to abortion, and the attempts have always failed. Now, though, some legal experts are optimistic about lawsuits that request religious exemptions from abortion bans, even though those exemptions might only apply to members of named religious groups. Their optimism derives from recent religious freedom claims that have guaranteed religious exemptions to Covid-19 restrictions, cake baking for gay couples, and website making for gay weddings. However, these religious exemptions all came from conservative Christian groups. None derived from self-proclaimed liberal religious groups.

It is important to note that in all the cases for religious liberty that have been accommodated by the courts, conservative Christians have not taken a doctrinal or religious law approach to their claims regarding religion. In fact, reliance on formal doctrine is unnecessary for a plaintiff to make a religious freedom claim. For example, Coach Joseph Kennedy, the assistant football coach who insists on praying with students on a public football field, did not reference scripture or any other religious authority in his appeal to the Supreme Court. Instead, Kennedy claimed that he made a covenant with God that involved prayer after every football game. He was believed to have sincerely held religious beliefs without any reference to particular texts or complicated legal reasoning from centuries ago.

The Jewish legal approach we see in the religious freedom cases against abortion bans is in some ways a more conservative than those taken by conservative Christians who have been granted freedom of religion exemptions. And even when they do take a more conservative approach, liberal Jewish groups are still finding that their claims about Judaism are being denied as religious claims.

Legal scholar David Schraub refers to questions about the authenticity of liberal Jewish claims as a kind of antisemitic supersessionism. In a review article for the NYU Law Review, he writes, “The core of supersessionism, whether in theological guise or not, is the ability of non-Jews to possess, as against actual Jews, a superior entitlement to declare what Jewishness is.” When Jewish ideas challenge anti-abortion Christian beliefs, Becket and conservative Christians strike them down as not truly Jewish. The result is that the only Jewish values they see as legitimate are those that cohere with Christian principles. In fact, the only religion seen as legitimate is conservative Christianity. Schraub writes that conservative Christians in America have presented themselves as “guardians of the Jewish people in the fight against antisemitism” while also questioning the religious veracity of liberal Jewish claims. This has led to alliances between conservative Christianity and Orthodox Judaism, an alliance which empowers Becket and others to deny liberal Jewish groups the right to make a religious freedom claim.

Liberal Jewish Reproductive Justice Activism

While Schraub is doubtful about the ability of liberal religious groups to win in a court system that has clearly expressed preference for conservative Christianity, he maintains that where these cases succeed is in presenting to the public a view of religion that is liberal. Schraub writes, “The general liberalism of the American Jewish community offers an image of a religious community whose spiritual commitments are predominantly progressive in character and whose religious practice is most liable to be threatened by conservative policy initiatives.” In fact, liberal Jewish communities in the United States have demonstrated their support of reproductive health, rights, and justice for over a century.

For example, in the early 20^th century Emma Goldman and other Jews were among the first activists to advocate for sexual and reproductive freedom. They were attuned to the concerns of immigrant women who knew that having fewer children would allow them to go to school and have careers, bring their families out of poverty, and build an American life. In 1948, Lena Levine, a Jewish obstetrician and gynecologist, founded the international Planned Parenthood Federation. In the 1960s, Heather Booth, a Jewish student at the University of Chicago, started the Abortion Counseling Service of Women’s Liberation (otherwise known as the Janes), an underground abortion service that assisted more than 11,000 women in ending their pregnancies prior to Roe v. Wade. More Jewish women were part of the Jane Collective during in the 1960s and 1970s. Several rabbis were part of the Clergy Consultation Service, a group of over 1,000 clergy across the U.S. who helped women get abortions before Roe.

More recently, Jews have updated rituals and adapted liturgy to mark their pregnancy terminations. Mayyim Hayyim, a mikvah (ritual bath) that serves Jews from a variety of backgrounds and affiliations, offers immersion ceremonies that mark life transitions. Two of those ceremonies are for people who have had an abortion. Ritual Well, an online database of new Jewish ceremonies and liturgy contains several more rituals, prayers, and poems about abortion.

One such ritual was created by Deborah Eisenbach-Budner, a Jewish educator and mother of three children who had an abortion at the age of 40. She says this blessing came to her: “Bless You, Rahamaima, Compassionate Nurturer of Life, who helps us choose life,” by which she means her own life. Like the rituals surrounding abortion, Eisenbach-Budner’s prayer is a contemporary adaptation of ancient sources. She does not use a traditional name for God. Instead, she refers to God with the word “Rahamaima.” This name combines the Hebrew word for womb (rehem), the word for compassion (rahamim), and the word for mother (ima). The words at the end of the prayer, come from a passage in Deuteronomy: “I have put before you today blessing and curse, life and death. Choose life” (Deuteronomy 30:19). Although “choose life” has been co-opted by the anti-abortion movement to refer to fetal life, Eisenbach-Budner and other Jewish women who have had abortions interpret this line to mean that women can choose their own lives. These Jewish groups and individuals have created a wealth of textual interpretations and liturgical sources that reflect liberal Jewish support for abortion.

Liberal Jewish support for abortion can also be seen in the stories shared by Jews who have had abortions. Jews who share their abortion experiences are part of a growing movement that encourages people to talk about their abortions. In these narratives—from those who are unaffiliated/secular Jews to those who are ultra-Orthodox—people reveal that they made the decision to terminate under all sorts of circumstances. Some were in college and did not want to have a baby yet. Others knew they never wanted children. Some terminated because of an abusive relationship or to take care of the children they already have. Others terminated after a fetal diagnosis. Some discussed it with their rabbi and others didn’t. Some are rabbis and constructed rituals and ceremonies for themselves and others to mark the Jewishness of their abortion.

In these narratives, we learn that Jews see abortions as part of their life story, and a morally right decision that they made based on their own priorities and abilities. These experiences, too, are proof of Jewish support for abortion.

The current fight for abortion rights is not just about the right to reproductive healthcare. The fight for abortion rights has also become a battle for liberal religions to be recognized as religions in the public square. Conservative religious beliefs about abortion continue to limit reproductive agency and to deny the moral good of abortion. Jewish advocates for reproductive justice in America have an opportunity to push back against these claims. But if they remain preoccupied with proving their religious authenticity in conservative terms, they’ll squander it. The way religious groups are advocating for abortion rights today will shape what gets to count as religion in America. In order to strongly support reproductive justice for all, and to uphold a pluralistic public square, liberal Jewish groups should draw on their own rich history of reproductive rights activism, ritual, liturgy, and community support for abortion.

Michal Raucher is Associate Professor of Jewish Studies at Rutgers, The State University of New Jersey. She is a scholar of the anthropology and ethics of reproduction, gender, and religious authority.