Rabbinic scholars are troubled by Kentucky’s new ultrasound law, which the U.S. Supreme Court allowed to take effect this past December without a hearing. (photo provided)
Kentucky’s new ultrasound law, which forces physicians at the state’s last abortion clinic to subject their patients to their ultrasound images and the sounds of fetal heartbeats – even if the patient objects – is troubling to some Jewish scholars.
Rabbinic authorities interviewed by Community, many of whom have written extensively on abortion, used words like “troubling,” “problematic,” even “cruelty” to describe the law.
The ACLU challenged the law on First Amendment grounds, but the U.S. Sixth Circuit Court of Appeals upheld it last April. By December, the Supreme Court, without comment, announced it would not review the lower court’s decision, allowing the law to take effect.
Judaism takes a nuanced approach to abortion, treating it more as a need than a right. Rabbis do disagree on some of the reasons to perform the procedure.
But they agree that the mother’s condition and input are vital. Only when the fetus emerges from the womb and becomes a nefesh (soul), is its life weighted equally to the mother’s, according to Jewish law.
Rabbi Mark Washofsky, the Solomon B. Freehof Professor of Jewish Law and Practice at Hebrew Union College-Jewish Institute of Religion in Cincinnati, said the justification, or “warrant,” for an abortion must be “maternally indicated.”
The reasons for the procedure, Washovsky said, involve the life and health of the mother (not the fetus).
“If bringing a pregnancy to term would involve significant risk to the mother’s life or health, including her mental, psychological and emotional well-being, she has valid grounds to make the decision for abortion,” he said.
Rabbi Jason Weiner, an Orthodox rabbi, chaplain at Cedars Sinai Hospital in Los Angeles and author of the book Jewish Guide to Practical Medical Decision-Making (Urim Press), said he has “mixed emotions” about abortion. Still, he said there are instances when Orthodox Jews will want access to the procedure.
“From that perspective, we can be aligned with certain aspects of the pro-choice perspective,” he said, “because there are times when Jewish law allows us to choose.”
Weiner called blanket rules such as those in the Kentucky act “troubling in Jewish law.” While abortion should be chosen on a case-by-case basis and not used as birth control, he said the law still has an “element of cruelty to it.”
“There is a significant moral decision to be made by the woman,” Weiner said. “It’s so hard for many women to make this decision, even when it’s allowed by Jewish law.”
Rabbi Danny Schiff, an expert on Jewish law and ethics and the author of the book, Abortion in Judaism (Cambridge University Press), called the ultrasound law “very problematic.”
A fetus is “unendingly precious” in Jewish law, Schiff said, and though it is not equivalent to the mother’s life, “if you don’t have a sufficiently weighty reason [to have an abortion], it is a form of life that is to be respected.”
The ultrasound law is part of a raft of state laws around the country making it harder for a woman to choose abortion and for abortion clinics to stay open.
Last year, following passage of Alabama’s law, The Rabbinical Assembly (RA), which represents the Conservative rabbinate, released a statement supporting “full access for all women to the entire spectrum of reproductive healthcare” and opposing “all efforts by government, private entities or individuals to limit such access or to require unnecessary procedures.”
The RA also came out against “personhood” legislation, which would confer legal rights to a fetus or an embryo.
Abortion is not a choice a woman should make in a vacuum. Rabbi Elliot Dorf, distinguished professor of philosophy at American Jewish University in Los Angeles, said Judaism gives great credence to a physician’s opinion on what is best for the patient.
“The Jewish tradition for at least the last 2,000 years has had a virtual love affair with medicine, and it defers to doctors as to what’s in the best interest of patients,” said Dorf, who also chairs the RA’s Committee on Jewish Law and Standards.
He quoted a midrash about Rabbi Yehuda HaNasi, the codifier of the Talmud, who consulted a physician about an eye disease he had. The doctor proposed three possible treatments, only the last of which did HaNasi accept.
“It’s not just the patient doing whatever he or she wants,” Dorf said. “It’s very much a discussion between doctor and patient.”
Some reasons for an abortion are not open for debate.
“If her (the mother’s) life would be endangered by the fetus’s birth, then the abortion is mandated by traditional Jewish law,” Washofsky said. “In other cases, where abortion is warranted, she is entitled, but not required, to make the decision for abortion.”
Dorf agreed, though he also said, “If a woman or couple do not want to have a child, that is a good reason to use birth control; it is not a reason in and of itself to abort.”
(The morning after pill, he added, does not constitute abortion because it prevents fertilization.)
Washofsky called laws like Kentucky’s that restrict or impede a woman’s right to choose an abortion “a violation of religious freedom.”
“They deny to a woman the right to make a decision that Jewish law grants them,” he said.
Schiff lamented the growth in anti-abortion laws, saying they widen a cultural rift in America.
“The abortion debate is highly polarized; there is a real lack of a middle ground,” he said. Judaism “has always tried to have a robust discussion about the ethical appropriateness of an abortion.”
That discussion becomes harder to have, he continued, as the abortion debate strays deeper into legislating the practice.
“The placement of the abortion debate within a legal framework has made it difficult for us have a reasonable conversation about it,” Schiff said.
He added that the old Jewish adage – the law of the land is the law – “only goes so far if the law isn’t ethical and reasonable.