Rabbi Sacks and the Rabbinical Assembly

on the Recent U.S. Supreme Court Decision Overturning Roe v. Wade

Rabbi Sacks: Three Reasons Why I Worry about the U.S. Supreme Court Decision

(delivered on Friday, July 1, 2022)

From the time the news reports broke about an impending U.S. Supreme Court decision that would overthrow Roe v. Wade, we have been in charged discussions around it. I have been focused on how Jewish tradition has approached the status of a fetus. Indeed, I devoted a class to teaching the prominent sources that have impacted Jewish ideas on abortion.

To summarize, Jewish law is much more nuanced on abortion than either the Catholic position or Roe v. Wade. The Catholic view classifies a fertilized embryo as a full human being, but that idea mistakes the potential for the actual. To this point, we have ample evidence that somewhere between 75-80%of fertilized eggs in women’s bodies miscarry, most in the first month of pregnancy, often before the woman knows that she is pregnant.

The Talmud, based on Exodus 21:22-25 and, one would think, on the miscarriages that the Rabbis witnessed, classifies the developing embryo as maya d’alma, “simply liquid” during the first forty days of pregnancy. For the Talmud, the fetus does not yet even attain the status of fetus during this time. After 40 days and until the birth, the fetus is considered k’ubar imo, “like the thigh of its mother.” That is, the fetus is a part of the mother and has no independent status. It is only when the head or, in a breech birth, the major part of the fetus’ body emerges, that the fetus becomes a nefesh, a full human being.

Thus, due to Judaism’s reverence for life, the mother’s health and life have been prioritized over a fetus’s by virtually all Jewish legal authorities in all places in all ages. Consequently, feticide is not the same as homicide in Jewish law. Since the fetus is not a nefesh, a human being, feticide is not murder.

At the same time, the embryo and, later, the fetus is a developing human being, and we Jews do have a duty to procreate, an obligation that is especially important to remember in this post-Holocaust era when Jews are facing a major demographic crisis. So we hope that Jews as a whole are equally sensitive to this need.

So what does Judaism teach? It teaches that abortion is required, and not merely permissible, when the life or physical or mental health of the woman is at stake and is permitted, when there is an elevated risk to the woman over that of normal pregnancy or when the fetus will suffer from a lethal or devastating disease. There are other scenarios for which some Jewish authorities have permitted abortion. This is a lot of terrain in which abortions are permissible or required. Nonetheless Jewish law could or would, by-and-large, prohibit abortion when done for other reasons.

Thus we see that Jewish law is far more permissive than the Catholic Church and somewhat less permissive than Roe v. Wade is.

And, all of that stated, Jewish law works on a case-by-case basis. That is, Judaism’s laws are more descriptive of what has taken place and sometime help establish parameters and guidance for Jewish legal thinking in the present, but are not meant as predictive for all cases, or for all scenarios. Each woman’s reality and experience help to propel the decision of the local mara d’atra, the local authority.

But Jewish law, though, however interpreted in any specific case, should not be the basis of American law, and neither should any other religion’s dictates or teachings.

Thomas Jefferson asserted that when Americans overwhelmingly agree on a moral issue, the state may enforce that moral stance as law. We think here of murder, theft, rape, duties to pay taxes, and education. All hold up values to which the vast majority of Americans agree.

Jefferson added that when Americans disagree about a moral issue, the government should leave to each citizen to determine what is proper. Clearly, abortion brings up religious ideas to which their is no broad agreement. Americans, in poll after poll overwhelmingly supportive when a woman’s life is in danger. Yet in other areas of abortion, Americans are less supportive or even quite divided.

The latest Supreme Court decision enables states to prohibit abortion altogether or substantially restrict it. I am not a scholar of American legal jurisprudence. The decision was certainly reached legally and is now valid. I cannot evaluate it on its legal merits. But the new decision does violate Jefferson’s wise balance of how people of multiple faiths and those of no faith can live together amicably and productively. As such, I worry that one effect of the ruling will be to diminish American unity, as the “live and let live approach” will no longer be the case here.

The decision also strikes a major blow to the idea of individual liberty that is one important source of American identity and pride. After all, if women cannot make their own decisions, in conjunction with their families, medical team, and spiritual support network (including their clergy person), there will be less liberty.

Finally, this decision will make it difficult, if not impossible, for some Jewish women to follow their Judaism, and it will do the same for women of other religious groups, where abortion would be required in some cases, including the health of the mother. It effectively establishes one religious moral view of the fetus–that of Catholicism–over other religious moral views. Thus this ruling seems to be in contravention of the First Amendment’s freedom of religion clause.

Let me add: This is not really about “a woman’s right to choose,” although to modern Jews that is deeply important. Rather, it’s about our collective responsibility to care for the physical, emotional, and spiritual health of the mother.

So while this new ruling stands, we must rally to do all that we can to ensure something to which all Americans should agree: that women’s lives matter. We do that in any number of ways, but clearly assuring that women who live in states with restrictive laws around abortion can access the health care that they need, including a full range of reproductive services.

Conservative Movement’s Rabbinical Assembly’s Statement on the

Recent U.S. Supreme Court Decision

For over five decades, the Rabbinical Assembly has strongly and repeatedly affirmed the halakhic necessity of access to abortion based on our members’ understanding of relevant biblical and rabbinic sources and teshuvot – rabbinic responses – and fiercely opposed efforts that would limit access to abortion or stifle reproductive freedoms in the U.S. In response to legislative efforts that threatened reproductive freedom in 2021, the Rabbinical Assembly (RA), the international association for Conservative/Masorti rabbis, passed a Resolution on Right to Legal and Accessible Abortion in the United States. Following the U.S. Supreme Court decision to overturn its previous landmark cases, Roe v. Wade and Planned Parenthood v. Casey, effectively nullifying the Constitutional right to abortion for millions of Americans, the RA issued the following statement:

The RA is outraged by the decision of the U.S. Supreme Court to end the Constitutional right to abortion and deny access to lifesaving medical procedures for millions of individuals in the U.S., in what will be regarded as one of the most extreme instances of governmental overreach in our lifetime.

Many Americans now face a dire crisis. Many more face uncertainty. This is a dangerous time for all people who are capable of becoming pregnant, especially those in categories who have poorer maternal outcomes, and particularly BIPOC (Black, Indigenous, People of Color) people or those of lower socioeconomic backgrounds. For individuals living in rural areas or in states that will jump to further restrict abortion, this decision is truly life-threatening. For American Jews and those of other faiths, this decision is a restriction on our religious freedom. For people who fall into the intersections of all or most of the above, our personhood has been rejected by the highest court in our nation.

The Committee on Jewish Law and Standards of the Rabbinical Assembly has repeatedly affirmed the right of a pregnant person to choose an abortion in cases where ‘continuation of a pregnancy might cause severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective.’ This position is based on our members’ understanding of relevant biblical and rabbinic sources, which compel us to cherish the sanctity of life, including the potential of life during pregnancy, and does not indicate that personhood and human rights begin with conception, but rather with birth as indicated by Exodus 21:22-23.

Based on our understanding of Jewish tradition and religious freedom, The RA supports the right to full access for all those who need abortions to the entire spectrum of reproductive healthcare and opposes all efforts by governmental, private entities, or individuals to limit or dismantle such access. Denying individuals access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices and medications, and abortions, among others, on religious grounds, deprives those who need medical care of their Constitutional right to religious freedom. Imposing civil and criminal consequences for clergy assisting their constituents as guided by halakhah deprives our members of a fundamental element of clerical practice incompatible with Jewish values.

There will continue to be legislative battles in the United States on both the federal and state levels that pose existential threats to reproductive freedom, especially so-called ‘heartbeat’ bills, which violate the foundational principle of separation of church and state. The Rabbinical Assembly emphatically opposes all such laws and Legislative or Executive moves and instead calls on members of Congress to decisively codify Roe v. Wade into law to enshrine the right to health, freedom, and dignity for all Americans.