We seek a way to follow our tradition’s nuanced views on abortion in a multicultural society, where the principles of different religions must be respected, and those who are pregnant and those who provide healing must have the right to follow their own conscience and religious traditions without restricting the right of others to follow their conscience and religious traditions. Jewish tradition values life almost above all else and very much encourages having children. However, even when abortion was greatly restricted, if not completely forbidden, in the U.S. (and the Western world), rabbis generally upheld a lenient attitude toward abortion when the mother's life or physical or mental health were at stake. Under those circumstances, when it became possible to abort using medication, that became the preferable option because it is generally less dangerous than surgery for the woman at the time of the abortion and with regard to her future ability to procreate.
That said, Jewish law also permits abortion to be done surgically, when the stage of the pregnancy and the mother’s health, both physiological and psychological, require that. New medical technologies have developed that offer data about the fetus, and our rabbis permit abortion in cases where a child would be born so ill as not to survive long or would be severely and permanently disabled. Recently, certain abortion procedures have become the subject of political polemics. Nonetheless, keeping in mind the principles and guidelines of Jewish law, based on the Mishnah (Ohalot 7:6), we uphold the use of surgical abortion techniques even in the last stages of pregnancy ("late term intact dilation and extraction abortion") when that is necessary to preserve the mother’s life or health or her ability to give birth in the future.
The United States Supreme Court held in Roe (1973) and in Casey (1992) that states are permitted to impose restrictions on a woman's right to abort based on fetal viability outside the womb. Thanks to advances in neonatology, the time during pregnancy when fetal viability occurs has moved earlier, from the third trimester (the 29th week out of 40), as in Roe, to as few as 23 weeks. The earlier that a baby is born, however, the less likely that it will survive and the more likely that if it does survive, it will suffer from abnormalities, many of which cannot be corrected. No hard-and-fast prognosis applies, for even babies born at full term may suffer from abnormalities of various sorts, and only very severe illness would be taken into consideration by Jewish law. Furthermore, as Chief Justice Roberts is quoted as saying, if the issue in American law is no longer viability, because of its complications, but rather the ability of the woman to choose whether to have a child or not, how long during the pregnancy should that right apply? Neither viability nor a woman's right to choose is the basis of Jewish law on abortion, although they play a role only indirectly; what matters in Jewish law is the woman's life and health, both physical and mental.
Rabbi Elliot Dorff Rabbi Pamela Barmash
Co-chair, CJLS Co-chair, CJLS