12/22/2014 06:23 pm ET Updated Feb 21, 2015

The Torah Is Pro-Life and Pro-Choice

This brief essay is bound to make no one happy. It is not meant to. Nor is it meant to place judgment on anyone's leaning regarding a very volatile political issue in American society. Rather, I'd like to take the effort to launch a serious conversation about abortion rights in America. Rarely does the Torah merely affirm one side of a contemporary partisan issue. While there may be a dominant leaning, there are centuries of diverse Jewish positions that need to be considered within the Jewish judicial and values systems.

In the case of abortion, Jewish law leans toward the modern pro-choice position, but also holds many powerful arguments for pro-life as well (I have used the terms that each side uses for itself, for fair balance).

The conversation begins in the Bible: If one kills a fetus, they are not charged with murder. Rather, it is a mere financial crime (Exodus 21). Such a ruling infers that a fetus is not a life per se, but a potential life; yet just because a fetus is not granted the same dignity as a living child does not indicate that the fetus is lacking weighty significance. In the first forty days since conception, the fetus is considered by the sages to merely be water, and as "the thigh of its mother" (Yevamot 69b; Bava Kama 78b). After forty days however, the fetus is ascribed as a fully potential life whereupon that potential life becomes a full life upon birth. After birth, of course, there is a full status change. "A child one day old... inherits and transmits; he who kills him is guilty of murder, and he counts to his father, to his mother and to all his relatives as a fully grown person" (Niddah 4:3). Halachic authorities have declared that many abortions are forbidden by Jewish law, while disagreeing on stage of pregnancy. The value of potential life is so cherished that even the spilling of semen is forbidden. A fetus is viewed as a holy gift, a precious potential for life. Some Jewish law authorities even view a fetus as life although not a full life of equal value to a born human.

Due to the distinct delineation of potential vs. full life, there are various Jewish approaches as to when an abortion can be permitted and at what stage during pregnancy. This approach to not view a fetus as a complete human being was affirmed in the controversial (that term is almost an understatement) decision of Roe v. Wade (1973). Justice Harry Blackmun, writing the majority opinion, wrote: "In short, the unborn have never been recognized in the law as persons in the whole sense" (Section IX).

Many Americans would be surprised to know when and why most women have abortions. In America today, of the 1.2 million abortions performed annually, around 88 percent are conducted prior to 12 weeks, around 10 percent between 13 to 20 weeks, and under 2 percent are after 21 weeks. These latter cases are often the result of logistical problems, usually delays in finding a reputable facility or in raising funds to pay for the procedure. There are varying reasons as to why a woman would seek an abortion.

According to 2013 data:

• In half of all cases, the failure of contraception to avoid pregnancy is the reason for the abortion
• Financial inability to afford having a child
• Serious birth/medical defects (detected in the second trimester, weeks 13-26) or health threat to the mother if pregnancy occurs
• To terminate a pregnancy caused by acts of incest or rape

I believe that if the pro-life movement sincerely wished to reduce abortions, indeed end them altogether, it should concentrate on promoting stronger education on birth control methodology, or at a minimum strive for more of a social safety net for the poor. What we have seen, sadly, is the proliferation of attempts to abolish abortion through so-called "personhood" state ballot initiatives that declare a fetus a person from the day of inception, making all abortion, and some birth control methods, a crime, regardless of incest, rape, or the welfare of the mother. All have so far been defeated, such as in Colorado (for the third time during the 2014 midterm cycle) and South Dakota as well. However, Tennessee passed a virtual personhood referendum, granting its legislature unlimited abilities to restrict or abolish abortion. Thus, it is expected that Tennessee will soon join other southern states (Texas, Virginia, Alabama, Louisiana and Mississippi) that have passed laws specifically designed to shut down every abortion/birth control clinic.

The most notable application of the "personhood" amendment to clinical regulation can be seen in attempts in a Texas law requiring providers at all abortion clinics to meet "ambulatory surgical center" standards (i.e. having admitting privileges at a local hospital, even if they are refused by the hospital), which in effect would close all but seven clinics in the state. Incredibly, a U.S. District Court upheld this in October 2014 (excepting the El Paso area), claiming that the law's obvious intent could not be considered, and that no "undue burden" had been shown outside of El Paso. In reply, the Center for Reproductive Rights stated that "... nearly one million Texas women will soon face a minimum of a 300-mile roundtrip to access their constitutional right to an abortion."

This decision, which is likely to appear in front of the Supreme Court, is yet another that ignores basic science. A peer-reviewed 2012 study on the comparative safety of childbirth versus abortion noted that the mortality rate for women giving birth (8.8 deaths per 100,000 live births) was 14 times greater for those having abortions (0.6 deaths per 100,000 abortions). Thus, Texas (recently scandalized for turning away a patient with obvious Ebola symptoms, who later died) is using health standards as a poor excuse for banning abortion.

The primary concern that Jewish law has with pro-life thinking is the way in which proponents often equate the value of the mother's life with the value of the fetus' life. The Catholic pro-life position that life starts at conception is foreign to Jewish thought. Jewish law is unequivocal that saving the mother's life trumps that of the fetus:

If a woman is in hard travail, one cuts up the child in her womb and brings it forth member by member, because her life comes before that of [the child]. But if the greater part has proceeded forth, one may not touch it, for one may not set aside one person's life for that of another (Ohalot 6:7).

On this source, the Talmud (Sanhendrin 72b) comments:

Rabbi Huna states: A minor who is pursuing another to kill him may be killed. Thus, he rules that a pursuer does not need warning [that he is committing a crime] and it makes no difference whether the person is an adult or a child. Rabbi Chisda asked Rabbi Huna: The fetus sticks out its head one does not touch it since one does not substitute one life for another. Why, is it not a pursuer? That case is different, since from heaven it is pursuing her.

Maimonides codifies this rule one way, and Rashi another. Maimonides, says:

It is a negative commandment not to have mercy on a pursuer. Thus, the Sages decreed that a fetus that is difficult to be born may be cut out of its mother's stomach, whether by poison or by hand, since it is like a pursuer of the mother to kill her. If the fetus sticks out its head, you may not touch it, since one cannot substitute one life for another, and this is the way of the world. (Laws of Murder and Preservation of Life, Chapter 1:9)

Maimonides teaches that a fetus is indeed a person and abortion is murder but that it is only permitted to save the life of the mother. Rashi (Sanhedrin 72b) completely disagreed. While commenting on the Talmud above, he explains the rule:

It sticks out its head. The Talmud is speaking about a woman who is having difficulty giving birth and is in danger. The beginning section recounts that the midwife should stick in her hand, cut and remove the fetus limb by limb, since all the time that the fetus has not entered the air of the world, it is not alive, and may be killed to save the life of the mother; but once its head is out, one cannot touch it to kill it. Since it is already born and one may not chose one life over another.

Most commentaries adopt Rashi's view and a minority accepts Maimonides. So, abortion to save the life of the mother is always permitted and the life of the mother is more precious that the life of the fetus. On the other hand, abortion for reasons less than the physical or mental health of the mother is not at all favored by the Jewish tradition and considered murder by Maimonides. If one were to view the debate according to Jewish law and values, the infinite dignity of the mother always exceeds the value of the fetus in extreme situations, and abortion for financial comfort is never considered proper. There is a larger gray area in between. Many women suffer during pregnancy (physically and emotionally) and Jewish law demands that rabbinic authorities must respond emphatically and compassionately (within the boundaries of Jewish law) to address individual cases of distress. This issue is extremely sensitive and case-specific. All struggling with a particular case should approach a Jewish legal authority to talk through their particular issue.

Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder & President of Uri L'Tzedek, the Founder and CEO of The Shamayim V'Aretz Institute and the author of seven books on Jewish ethics. Newsweek named Rav Shmuly one of the top 50 rabbis in America."