The recent Dobbs v. Jackson decision of the Supreme Court of the United States to overturn Roe v. Wade,[1] which ruled in 1973 that the United States Constitution confers the right to have an abortion, has raised quite a stir surrounding the legality and morality of abortion, including in the Jewish community. Some members of the Jewish community protested the Dobbs decision, claiming Judaism guarantees the right to an abortion.[2] Other Jewish groups praised the Dobbs decision, claiming Judaism is pro-life, and even wrote an amicus brief for the court.[3] This article will explain the reasons some Jewish people are pro-choice, and part two will examine the pro-life Jewish position and explain how to articulate a pro-life view in a Jewish way.

The Pro-Choice Jewish Position

According to a 2015 Pew Research Forum, 83 percent of American Jews polled said they believe abortion should be legal in “all/most cases,” with only 15 percent reporting it should be illegal in “all/most cases,” and 2 percent reporting that they do not know.[4] Many Jewish people today are secular, but those who espouse a pro-choice position based on religious reasons often cite Talmudic passages and Exodus 21:22–23 to argue the fetus is not a person and that Judaism permits abortion. Following the Dobbs decision, the Women’s Rabbinic Network released a statement saying, “We stand with generations of Jewish scholars who state clearly and unequivocally that abortion access is a Jewish value.”[5] Similarly, the CEO of the National Council of Jewish Women, Sheila Katz, declared, “This egregious decision is a direct violation of both our American values and our Jewish tradition.”[6] So now let us examine what Jewish tradition and values teach concerning abortion from the pro-choice perspective.

The Biblical and Talmudic Pro-Choice Arguments

Exodus 21:22–25 says, “When [two or more] parties fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life” (JPS).[7] Some pro-choice Jewish advocates cite this verse to argue the fetus is not a person according to the Jewish Scriptures and Jewish commentators, since the punishment for accidentally murdering a fetus merely results in a fine, while the punishment for killing the mother is a capital crime. Abraham ben Meir Ibn Ezra, one of the foremost Jewish commentators from the Middle Ages, commented the following on this passage:

But if other damage ensues to the woman, he shall be put to death. Since they were “fighting” (v. 22), he intended to do some evil to his fellow, which means that, even if he did not mean to kill the woman, if he does so he is killed. But this does not apply to her fetus, for it is not considered to be alive until it comes forth into the air of the world. He is merely fined for it.[8]

Other Jewish sages agree with Ibn Ezra that the fetus is not a person until birth. One of the main Rabbinic passages cited when discussing abortion is found in Mishnah Oholot 7:6 (ca. 200 CE). The passage reads:

If a woman is having trouble giving birth, they cut up the child in her womb and brings [sic] it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person’s life for that of another.[9]

Pro-choice Jewish advocates argue that since Jewish tradition does not view the fetus as a person, abortion is thus permissible. Fred Rosner, professor of medicine at Mount Sinai School of Medicine, commenting on the Jewish legal attitude toward abortion, wrote, “In Jewish law, an unborn fetus is not considered to be a person (Hebrew: nefesh, literally: soul) until it is born. The fetus is regarded as part of its mother’s body and not a separate being until it begins to egress from the womb during parturition. Until forty days after conception, the fertilized egg is considered ‘mere fluid.’”[10]

In conclusion, the pro-choice Jewish community—both secular and religious alike—believes abortion should be legal in “all/most” cases because they argue the unborn baby is not yet a person. The next article will examine the weaknesses of this view, articulate the pro-life Jewish position, show how the Jewish Scriptures uphold a pro-life ethic, explain how the Talmud only permits abortion in extreme cases concerning the mother’s health, and discuss the scientific evidence concerning the beginning of life.

by Jennifer Miles

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[1] Dobbs v. Jackson Women’s Health Organization, 945 F.3d 265 (2022).

[2] Joe Hernandez, “Some Jewish Groups Blast the End of Roe as a Violation of Their Religious Beliefs,” NPR, June 26, 2022, https://www.npr.org/2022/06/26/1107722531/some-jewish-groups-blast-the-end-of-roe-as-a-violation-of-their-religious-belief.

[3] Dobbs v. Jackson, brief amicus curiae of Jewish Pro-Life Foundation, et al., SupremeCourt.gov,  https://www.supremecourt.gov/DocketPDF/19/19-1392/184580/20210721170924501_41204%20pdf%20Parker.pdf.

[4] “Views about abortion,” Pew Research Center, accessed July 6, 2022, https://www.pewresearch.org/religion/religious-landscape-study/views-about-abortion/.

[5] “Abortion Care is Health Care. Forcing Someone to Carry a Pregnancy Violates Jewish Law and Constitutional Rights,” Women’s Rabbinic Network, June 24, 2022, https://womensrabbinicnetwork.org/.

[6] “National Council of Jewish Women Outraged Over Supreme Court Ruling Ending Right to Abortion,” National Council of Jewish Women, June 24, 2022, https://www.ncjw.org/news/national-council-of-jewish-women-outraged-over-supreme-court-ruling-ending-right-to-abortion/.

[7] Exodus 21:23, https://www.sefaria.org/Exodus.21.23?lang=en&aliyot=0.

[8] “Exodus 21:23” in Michael Carasik, Exodus: Introduction and Commentary (Philadelphia: Jewish Publication Society, 2005).

[9] Mishnah Oholot 7:6, https://www.sefaria.org/Mishnah_Oholot.7.6?lang=en.

[10] Fred Rosner, “Medical Ethics of Judaism,” in The Encyclopedia of Judaism, eds. Jacob Neusner, Alan J. Avery-Peck, and William Scott Green (Leiden; Boston; Köln: Brill, 2000), 859–861.