Oasis Songs: Musings from Rav D
Friday, May 17, 2019 / 12 Iyyar 5779
The schedule for this Sunday’s Tiny House build is changed. Building will go from 10am-1 pm, then resume from 2:30-5 pm. We need volunteers! This change is necessitated by the funeral for Jacob Kryszek, which will begin at 1:30 pm at the synagogue. Jake was a Holocaust survivor who went on to have a successful life in business. He was a pillar of the community who will be sorely missed. Our condolences go out to his family.
Summary: Rabbi Kosak argues forcefully against Alabama’s new law that criminalizes abortion and shows how the law is an unintentional end run against Judaism and our first amendment protections. He also includes a statement against this law issued by the Conservative Movement’s Rabbinical Assembly.
When Freedom of Religion is Under Attack
This past week, our nation watched as the Alabama senate passed, and its governor ratified, a highly restrictive law that effectively criminalizes abortion. Regardless of whether one is in favor of abortion or believes such procedures should be banned, the decision ought to stun anyone who cares about the rule of law.
I have little legal patience for either the pro-life or pro-choice arguments as they are often popularly portrayed and have no intention of rehashing those tired arguments. Instead, I want to spell out the dangers of Alabama’s law from a Jewish halakhic perspective and demonstrate how this law encroaches on religious freedom, opens legal avenues that can endanger life by restricting necessary medical research and is inherently antisemitic.
First, this Alabama law effectively favors one religion over another. Certain segments of Christianity are vehemently opposed to abortion and believe that human life begins at conception. Judaism holds a substantially different understanding. As far back as the Talmud, our Sages demonstrated significant knowledge of fetal development. The Jewish understanding, derived from a verse in Exodus (21:22-23), is that fetuses are not people.
Therefore, while our tradition holds the sanctity of life in highest regard, and additionally sets a serious bar to the frivolous use of abortion, it remains permissible when the mother’s physical or emotional well-being are endangered.
Important Jewish legal decisors, such as the ultra-Orthodox scholar, Eliezer Waldenberg (1915-2006, in his compendium the Tzitz Eliezer), have an expansive view of what constitutes such emotional well-being. Thus, highly influential Jewish legalists have argued that financial stresses and even family planning considerations may be a sufficient cause to permit abortion.
Anyone who cares about freedom of religion and our first amendment rights ought to be deeply disturbed by how this law runs roughshod over the constitution. Even if they hold that abortion is a moral sin.
Second, it is very dangerous for the Court to view an embryo as a person and to extend it protections and rights. In 2011, the European Court of Justice did just that in Brüstle vs. Greenpeace. The end result of that decision was a ban on stem-cell research in Europe. By 2016, the European courts understood their legal overreach and have begun to walk back that decision. Meanwhile, Israel, because of the Jewish understanding of personhood (the fetus is refesh or mere organic matter), is a leader in stem-cell research. It is precisely because of the high value that Judaism places on human life that it permits stem-cell research. The Jewish outlook thus actually opens research avenues that sanctify life by advancing medical science and the healing arts. Because Alabama’s law is an equivalent overreach to Brüstle vs. Greenpeace, it can only minimally be considered to be “pro-life.” Rather, it privileges a Christian conception of personhood over a state’s obligations to protect the lives and health of real persons.
Third, as my friend and legal expert Rabbi Avinoam Sharon argues, “the state has no legitimate interest in the protection of embryos and fetuses, and so telling a Jewish woman that she cannot do something that she believes is permitted by Jewish law in regard to her body because what she wants to do offends Christian law or sensibilities is antisemitic.” In fact, he argues, Alabama’s law and those similar to it effectively reach a conclusion that Judaism is immoral and that rabbis who permit abortion are guilty of infanticide.
For all these reasons, even people who believe that abortion is immoral ought to be deeply disturbed by Alabama’s decision. One’s own moral considerations can certainly lead one to choose to have or refrain from having an abortion. But to extend a legal definition of personhood to a fetus goes against our very Constitution, and is thus an inherently illegal maneuver. Given the current composition of the Supreme Court, it is unclear what the fate of this new law might be. That is deeply troubling.
As a consequence of some of the concerns I have elaborated on, the Rabbinical Assembly issued the following statement:
Wednesday May 15, 2019
The Rabbinical Assembly, the international association for Conservative/Masorti rabbis, issued the following statement tonight on Alabama’s new abortion law:
The Rabbinical Assembly is deeply troubled by the enacting of today’s abortion law in Alabama and believes it should and will be struck down by federal courts.
Reproductive freedom is again under assault in our nation, beginning today in Alabama, where the state has effectively banned abortions at every stage of pregnancy and criminalized the procedure for doctors.
It is further under attack in other states’ so-called Personhood Acts and Life at Conception Acts, including in Georgia, South Carolina, Kentucky, Mississippi and Ohio.
This position is based on our members’ understanding of relevant biblical and rabbinic sources as well as teshuvot – modern rabbinic responsa. 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, but rather with birth as indicated by Exodus 21:22-23.
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.”
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 women of their Constitutional right to religious freedom.
The Rabbinical Assembly supports full access for all women to the entire spectrum of reproductive healthcare and opposes all efforts by government, private entities, or individuals to limit such access or to require unnecessary procedures. We also oppose so-called “personhood” legislation on the federal and state levels that would confer legal rights under the law to a fetus or an embryo.
The RA has consistently supported these reproductive freedoms for nearly 50 years.
However, recent legislative efforts in the United States on both the federal and state levels pose new threats to reproductive freedom, beginning today in Alabama. Other threats include so-called “heartbeat” bills in Georgia, Kentucky, Mississippi, South Carolina and Ohio.
The Rabbinical Assembly emphatically opposes all such laws and legislative or executive moves.
Shabbat Table Talk
- Can you think of laws you disagree with but still support because the repercussions are far worse?
- Can you think of laws you oppose intellectually or morally, but support politically because they have good legal standing and protect other (more) important values?
- In a pluralistic society, when and how must you relinquish your moral beliefs to allow others their moral beliefs?
If you’d like to continue this discussion, follow this link to CNS’s Facebook page to share your own perspectives on the topics raised in this week’s Oasis Songs. Comments will be moderated as necessary.