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Resolution on Reproductive Freedom in the United States

Background

Over the past four decades the Rabbinical Assembly has consistently supported reproductive freedom.  This support is firmly based on our members’ understanding of relevant biblical and rabbinic sources as well as teshuvot – modern rabbinic responses.

In Exodus 21:22-23 we read:  “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined... But if other damage ensues, the penalty shall be life for life…,” which determines that only the woman is a nefesh, living person, but not the fetus.

This understanding of the status of a fetus is supported by Leviticus 24:17: “If anyone kills any human being, he shall be put to death.”  (Leviticus 24:17)  In the Mekhilta d’Rabbi Shimon bar Yohai (21:12), the midrash teaches that a fetus is not a living person:  “The Torah says [one who strikes] a man (Exodus 21:12), meaning a viable human being, to exclude the fetus.”

Furthermore, Mishnah Ohalot 7:6 also teaches: “If a woman is having difficulty in giving birth [and her life is in danger], one cuts up the fetus within her womb and extracts it limb by limb, because her life takes precedence over that of the fetus. But if the greater part was already born, one may not touch it, for one may not set aside one person’s life for that of another,” which is understood to mean that a woman whose life is endangered by a pregnancy is permitted to end the pregnancy.

Likewise, there is the understanding that grave psychological distress is a legitimate reason to end a pregnancy.  Thus we find in the teshuvah of R. Eliezer Waldenberg, Responsa Tzitz Eliezer, part 13, No. 102:  “One should permit…abortion as soon as it becomes evident without doubt from the test that, indeed, such a baby (Tay-Sachs baby) shall be born, even until the seventh month of her pregnancy…If, indeed, we may permit an abortion according to the Halakhah because of ‘great need’ and because of pain and suffering, it seems that this is the classic case for such permission.  And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological.  Indeed, psychological suffering is in many ways much greater than the suffering of the flesh.”

However, recent legislative efforts in the United States on both the federal and state levels pose new threats to reproductive freedom.  These threats include 1) the personhood movement which defines life as beginning at conception, 2) legislative efforts to require ultrasounds prior to abortion, and 3) fetal-homicide laws. 

Specific examples of these include: the  “Life at Conception Act” (H.R. 374 / S. 91), which was introduced on Jan 20, 2011 and subsequently referred to committee, “a bill to implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and unborn (or preborn) human person.”

The Oklahoma State Senate passed SB 1433: Personhood Act, in February 2012, a bill establishing that “[t]he life of each human being begins at conception” and that “[t]he laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this state;” and the Virginia House of Delegates passed HB1 in February 2012, a bill which states “The life of each human being begins at conception,” and is nearly identical to Oklahoma’s SB 1433.

In addition the Commonwealth of Virginia adopted HB 462 in March 2012, which not only requires that every pregnant female (except a victim of rape or incest) undergo ultrasound imaging prior to an abortion but that the medical professional performing the ultrasound must obtain certification from the woman as to whether the woman availed herself of the opportunity to see the ultrasound image or hear the fetal heartbeat.  Finally a copy of the ultrasound and the written certification shall be maintained in the woman’s medical records at the facility where the abortion is to be performed;

Finally Alabama Code § 13A-6-1 (2006) defines “person,” for the purpose of criminal homicide or assaults, to include “an unborn child in utero at any stage of development, regardless of viability.”

Resolution

Whereas the Rabbinical Assembly has passed numerous resolutions, most recently in 2005 and 2007, in support of reproductive freedom, providing access to information concerning reproductive choice, and limiting the impact of legislation such as the “Unborn Victims of Violence Act”;

Whereas reproductive freedom is currently under assault via state and federal legislation such as the Personhood Act in Oklahoma and Virginia, the Life at Conception Act of the U.S. Congress and the creation of legal obstacles which violate a woman’s privacy through the requirement of ultrasound/trans-vaginal ultrasound prior to abortion;

Whereas states are basing criminal punishments on the premise that a fetus is a full human being;

Whereas Jewish tradition cherishes the sanctity of life, including the potential of life which a pregnant woman carries within her, but does not believe that personhood and human rights begin with conception, rather with birth as indicated by Exodus 21:22-23 and Leviticus 24:17;

Whereas the Committee on Jewish Law and Standards of the Rabbinical Assembly has affirmed the right of a woman to choose an abortion in cases where “continuation of a pregnancy might cause the mother severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective”; and

Whereas access to information, education, and services on voluntary planning prevents unplanned pregnancies, thereby preventing abortions, but denying a woman and her family full access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices, and abortions, among others, on religious grounds, deprives these women of their Constitutional right to religious freedom (e.g. the ability to fulfill the commandment to be fruitful and multiply may be jeopardized by the criminalization of certain fertility treatments due to personhood laws).

Therefore, be it resolved that the Rabbinical Assembly urge its members to support full access for all women to the entire spectrum of reproductive healthcare;

Be it further resolved that the Rabbinical Assembly urge its members to oppose all efforts by governmental, private entities or individuals to limit such access or to require unnecessary procedures; and

Be it further resolved that the Rabbinical Assembly urge its members to oppose “personhood” legislation on the federal and state levels that would confer legal rights under the law to a fetus or an embryo.

Be it further resolved that the Rabbinical Assembly urge the President, Congress, and State legislatures to support full access for all women to the entire spectrum of reproductive healthcare; to oppose all efforts by governmental, private entities or individuals to limit such access or to require unnecessary procedures; and to oppose “personhood” legislation on the federal and state levels that would confer legal rights under the law to a fetus or an embryo.

Passed by the Rabbinical Assembly Plenum, May, 2012