September 14, 2021|ח' תשרי ה' אלפים תשפ"ב A (Hopefully) Nuanced Analysis of the New Texas Abortion Law
Print ArticleMuch has been written recently about whether and to what extent the new Texas abortion law is inconsistent with orthodox Judaism and whether orthodox Jewish leaders should decry this new legislation. The new Texas abortion law, officially called Senate Bill 8, bans abortions upon the detection of cardiac activity in embryos, which usually occurs after six weeks of gestation and it uses an enforcement mechanism involving civil lawsuits to creates liability for anyone who performs, “aids or abets” or intends to aid or abet such an abortion. The law makes an exception if continuing the pregnancy presents a danger to the life of the woman who gets the abortion or if it could lead to “substantial and irreversible impairment of a major bodily function.” Even though the United States Supreme Court has declined to issue a stay on this new law, it has not as of yet issued a ruling on the merits of this law.
Much has been written decrying this law as wholly inconsistent with the halachic approach to abortion. See here and here. And while there is room to make that claim, as is unfortunately often the case with such complex political and halachic issues, much nuance has been missing. In reality, no secular law on an issue as sensitive as abortion is likely to be wholly consistent with halacha and/or halachic values. In this case, there are aspects of that law that are in fact consistent with some halachic opinions, and others that are not. An intellectually honest assessment of this issue demands that we acknowledge both. So, here goes:
Conceptually, the law reflects values that are consistent with many aspects of the halachic position regarding abortion. First, according to many Poskim, the halachic prohibition on abortion does not begin or is not as severe at conception, but it begins or it is more severe at around six weeks, which is around the time that the embryo gets its own halachic status according to a number of statements in the Gemara. For example, a woman who miscarries only becomes ritually impure associated with birth if she miscarries at least forty-one days after conception. Additionally, the child of a woman after a miscarriage is only considered a firstborn if the miscarriage occurred within forty days after conception.
Second, the Texas law assumes that a woman does not have an absolute right to an abortion because it’s her body, but the only allowance of an abortion is to protect the physical health of the mother. While such a stance is more limiting than that espoused by some Poskim, it is actually in line with others. Rav Moshe Feinstein, for one, views abortion as murder, and expressed that abortion could therefore only be permitted when done to protect the mother’s life. Rav Eliezer Waldenberg saw the issue of abortion differently, and he carved out allowances for severe mental health considerations.
This then raises the question, what are we to do when a law could reasonably preclude someone who follows halacha from following the halachic guidance that they are given? Even though the Texas law carves out an allowance for an abortion when it presents a danger to the life of the woman getting the abortion or a substantial and irreversible impairment of a major bodily function, it does not seem to carve out an allowance for a severe mental health exception. It is not hard to imagine a situation where a women woman would be advised to have an abortion following the ruling of Rav Waldenberg, only to be prevented from doing so by the Texas law. Perhaps specifically in the case of abortion, we should oppose any law that would preclude someone who follows halacha from doing so.
Orthodox Rabbinic organizations have not voiced strong opposition to the Texas law but they did voice strong opposition to the New York State Reproductive Health Act in 2019. The reason seems to be that fundamentally, the New York law permits abortion as a woman’s right when the patient is within twenty-four weeks from conception and that notion is inconsistent with Torah values. On the other hand, the Texas abortion law reflects the Torah value that abortion is not a right but an allowance under extenuating circumstances and there is some disagreement as to the breadth of that exception between some Poskim and the Texas law.
An argument can be made that it is bad policy and against Torah values to support governmental involvement in matters relating to one’s personal religious practice that does not harm others. Perhaps that rationale may not apply here, either if you view the fetus as an “other” deserving our protection, or because there is a more compelling competing rationale, namely that secular laws help shape societal values, and there is a battle for the soul of America in regard to abortion, whether a woman has an inherent right to choose this option or whether it is fundamentally forbidden and only permitted in extenuating circumstances. The New York state law reflects the first perspective and the Texas state law reflects the second perspective.
I think that there is another factor at play here and I think that factor comes up time and again in halachic discussions. In any halachic issue, when dealing with halachic exceptions, there are Poskim who are more lenient and Poskim who are less lenient in practice. One such issue, though perhaps less grave than abortion, is the question of pregnant women fasting on Yom Kippur. The halacha is clear that we need not fast when there is a potentially life-threatening situation and how that is applied in practice may depend upon which doctor or which halachic authority we consult. I have heard some women remark that there are many Poskim who have held that under certain extenuating circumstances, pregnant women need not fast on Yom Kippur and they are upset that when they were pregnant, they were not told of this leniency.
My sense is that at times there is a perception in the orthodox community that there is a lot more room for leniency in halacha which many Rabbis aren’t disclosing. There is understandable concern that failure to disclose these leniencies often can compromise the health of the woman, whether it’s a pregnant woman fasting on Yom Kippur or whether it’s a woman not getting an abortion. At the same time, it is critically important to ensure that we don’t misrepresent leniencies in extenuating circumstances as fundamental rights. In an American culture that celebrates individual rights, in areas including abortion, we must clarify the Torah’s stance as not an automatic right, but as a prohibition which is allowed under extenuating circumstances where of course anyone who finds herself in extenuating circumstances should be encouraged to consult a halachic authority to take full advantage of leniencies that halacha may provide. Perhaps we should align with secular laws that ideologically reflect this formulation as long as we can generally ensure that we can live our lives according to our halachic values.