by Annette Daum

The Jewish Stake in Abortion Rights

An unholy alliance of conservative religious and political forces, the New Right, has embarked on a campaign to get the government off people’s backs—and under our beds.

Particularly dangerous is the increasingly powerful campaign to outlaw abortion.

The anti-choice crusade is being waged by a new alliance of Catholics, some traditionally anti-Catholic Fundamentalist Protestants and ultra-conservative political forces, some with anti-Semitic views.

The Catholic hierarchy has adopted a pastoral plan calling for the establishment of a “pro-life” committee in every parish for grass-roots lobbying. The National Right-to-Life Committee (NRLC), an umbrella group which describes itself as ecumenical, is “undeniably and overwhelmingly Catholic,” according to women’s health journalist Deirdre English in Mother Jones. The NRLC and other Catholic groups are aligned with the so-called Moral Majority which, while also describing itself as ecumenical, is basically Fundamentalist Protestant in orientation, as is the Christian Action Council. Some Christian fundamentalists and ultra-conservative secular political forces, such as the National Conservative Political Action Committee (PAC) have interlocking memberships (see chart).

Some of these secular right-wing groups are well known for their anti-Semitic views. Phyllis Schlafly, head of Eagle Forum, an anti-ERA, anti-reproductive rights organization, was chief speaker at a Liberty Lobby conference in 1965, according to the Anti-Defamation League pamphlet The Radical Right. The ADL regards the Liberty Lobby as the leading source of anti-Semitism in the United States today. Founded in the late 1950′s by Willis Carto, its current head, the Liberty Lobby publishes periodicals and prepares radio programs spreading anti-Semitic canards. It is behind the Institute for Historical Research of Torrance, California, whose line is that the Holocaust is a myth.

The National Jewish Post and Opinion listed in 1974 two other anti-Semitic organizations opposed to freedom of choice: the National States’ Rights Party and the American National Socialist (Nazi) Party. The NJP-0 article quoted this from Thunderbolt (the official publication of the National States’ Rights Party): “The Jews are using Women’s Lib [sic], abortion, birth control and other schemes to destroy family life among white Christians.”

The 1974 NJP-0 piece also quoted a Planned Parenthood executive as saying: “Abortion is an issue to recruit people (like Orthodox Jews and Catholics), who are sincerely opposed to abortion on moral or religious grounds” and that these people are being exploited by right-wing extremist groups.

The battle over abortion is being used to rally support for the New Right, to build a movement that can be mobilized for even broader political battles in the near future. The battle against abortion is only the first step in an attempt by the New Right to reshape the American political system in its authoritarian image. The rest of its agenda is contained in an omnibus bill misleadingly named the Family Protection Act. It is anti-choice, anti-ERA, anti-civil rights for minorities and homosexuals, anti-labor and anti-sex education. Its provisions favor voluntary prayer in public schools, ban textbooks which modify the traditional roles of women, protect state statutes on spouse and child abuse from Federal influence and prohibit legal-service funds from being used for divorce litigation.

The year 1983 is the target date for passage of the “Human Life Amendment.” Several versions of such an amendment are already under consideration. All declare a fetus to be a person from the moment of fertilization, with a “paramount” right-to-life which “must be superior to any other right guaranteed by the Constitution” and “cannot be balanced off against other rights.” If the HLA passes, every pregnancy would have to be carried to term. (Only one version contains a clause permitting abortion “to prevent the death” of the woman, while at the same time stipulating that “every reasonable effort be made to preserve the life and health of the unborn child.”)

The American Civil Liberties Union stated that “by establishing this new, absolute right, the HLA would subordinate and thereby weaken our remaining Constitutional rights …. It would subordinate women’s bodies, health, work, even lives to fetal survival . . . give the ‘unborn’ more rights than the ‘born’ and “establish a primarily religious belief—that a fertilized egg is a human being from the moment of fertilization—and impose that belief on all, including those who do not share it.”

Such legislation grants rights to a fertilized egg that are superior to those of the woman carrying that egg.

Since the New Right does not yet have enough votes to pass a Constitutional amendment on abortion, it is now concentrating its efforts on the passage of a Human Life Statute, which defines “personhood” as beginning at conception, and inserts that definition into the Federal Code. This would make fetuses “persons” under the Due Process clause of the Fourteenth Amendment and would, in effect, prohibit the use of government funds for abortion. This Statute is designed to enable states to pass legislation prohibiting all abortions for all women under all circumstances even to save the life of the woman.

Passing the Human Life Statute would be a particularly dangerous precedent, as it enables legislators to overturn a Supreme Court decision (in this case, the 1973 decision legalizing abortion) without going through the Constitutional Amendment process, which requires a two-thirds vote of both Houses of Congress and ratification by three-quarters of the states. The Statute requires only a simple majority vote of both Houses of Congress to pass into law. In April 1981, 12 Constitutional experts and six former U.S. Attorneys-General (conservatives, liberal, Republicans and Democrats) made formal statements expressing concern at “this attempt to exercise unconstitutional power” in redefining the term “person.”

In May 1981, an attempt was made by Senator John East (R-NC) to railroad this Statute through the Subcommittee on Separation of Powers, which he chairs, in two days of hearings at which only medical testimony was permitted. Seven of the eight physicians who testified agreed with the intent of the legislation. Only Dr. Leon E. Rosenberg, chair of the Department of Human Genetics of Yale University School of Medicine, and former President of the American Society of Human Genetics, stated:

“Some people argue that life begins at conception, others that life begins when brain function appears, or when the heart beats, or when a recognizable human form exists, or when a fetus can survive outside the uterus or when natural birth occurs . . . the question of when human life begins is not a scientific matter…”. The National Academy of Science, meeting in April 1981, overwhelmingly supported his argument.

Significantly, the committee did not hear the painful stories of women who were denied safe, legal abortions before the 1973 Supreme Court decision. Writes Deirdre English, “Few who have listened to a group of women discuss their experiences with contraceptive failure, with sexual ignorance, with forced sex, with economic insecurity and emotional abandonment, all the things that lead to unwanted pregnancies, can remain unmoved by a woman’s need to be able to make this decision.”

Another version of the Human Life Statute specifically allows any individual to institute state and federal court proceedings on behalf of the fetus, should there be “reasonable grounds” to believe that anyone may be endangering its life. This virtually permits a witch-hunt into the most private aspects of the lives of women, doctors and clergy.

Contrary to the impression created by anti-choice forces, this legislation does not simply turn the clock back to before 1973, when abortion was treated as a minor felony (see box). Declaring the fetus to be a legal person grants rights to a fetus that never existed before. It represents a radical departure from precedents in US Constitutional and statutory law.

Under such anti-choice legislation, abortion would be a federal offense while murder is still a state offense. (What if a woman smokes, drinks, or must take medication that unintentionally harms the fetus? Will every miscarriage have to be investigated? The women would face homicide charges; any rabbi, doctor, psychologist or social worker who counsels her would be reported as an accessory to such a crime.) Proposed legislation would also have the effect of making use of the IUD and some birth control pills illegal.

Hard-core anti-choice groups do not intend to stop with the elimination of safe, legal abortion for all women. Their ultimate goal is to put an end to family planning and genetic screening as well. Legislation was passed in 1981 in the Utah State Senate banning amniocentesis (a test which can determine if a fetus has one of several genetic disorders including Downs’ Syndrome and Tay-Sachs disease). Fortunately, the decision was subsequently reversed by the same body, but this is undoubtedly the fight of the future.

Another strategy is being used simultaneously—pressuring the states to call upon Congress to convene a Constitutional Convention. Twenty of the necessary 34 states have called for a Constitutional Convention on abortion. There is no guarantee that such a convention could be limited to only one subject. If the drive is successful, the entire Constitution could be up for grabs.

To prevent this from happening, Congressional legislators are considering a “States’ Rights Amendment” on abortion. The most popular form reads: “Nothing in this constitution shall bar any State or territory or the District of Columbia . . . from allowing, regulating or prohibiting the practice of abortion.” This would mean going
back to before 1973 and permitting states to deny or restrict abortions, to impose any conditions or no conditions. The battle for reproductive freedom would have to be fought all over again in every state.

The impact of anti-choice legislation on Jewish women would be devastating. One out of every 30 Jews of European ancestry carries genes that could produce a child with Tay-Sachs disease. There is no known treatment or cure. Such a child appears normal at first, then becomes blind, deaf, develops a host of neurological symptoms and gradually becomes incapable of functioning, until death comes, usually by the age of five. If both parents carry the Tay-Sachs gene, each pregnancy could produce a Tay-Sachs fetus.

Amniocentisis can detect this disease in the fetus in the second trimester of pregnancy, providing the couple with information on which to base a decision to continue or terminate the pregnancy. The anti-choice legislation would outlaw such abortions, possibly even such tests.

Most of this proposed legislation runs directly contrary to the letter and spirit of Jewish law. While abortion is considered a serious moral question in halachah (Jewish law), it is not regarded as murder. According to halachah, the fetus is potential life only, and its claims are secondary to those of the woman. Halachah regards a fetus as having no independent life of its own. Just as a person may sacrifice a part of herself, such as an arm or a leg, to be cured of a disease, she may sacrifice this part of herself under varying circumstances, depending on interpretation of Jewish law.

While there is a wide divergence of opinion concerning the circumstances that would justify such a decision, halachic authorities are in general agreement that concern for the life and health of the woman takes precedence over concern for the potential life of the fetus. Even the most restrictive opinion, advanced by Rabbi J. David Bleich of the Rabbinical Council of America, regards “the compelling reason of preservation of maternal life” as justification for abortion, albeit the only justification. Most rabbinical opinion for the past 2000 years has been far more liberal, both in the interpretation of “compelling reason” and of “preservation of maternal life.” For example:

[If] a woman is having difficulty in giving birth, it is permitted to cut up the child inside her womb and take it out limb by limb because her life takes precedence. However if the greater part of the child has come out, it must not be touched, because one life must not be taken to save another. (Mishnah Ohalot 7:6)

Rabbi David Feldman wrote, in the definitive 1968 work Birth Control in Jewish Law, that “therapeutic abortion to save the woman’s life up to the moment of birth or even after that when death to both her and the child is the alternative, is mandated by the Mishnah . . . .” Rabbi Moshe Zweig of Antwerp (d. 1965) wrote that therapeutic abortion is required rather than permitted when the woman’s life is in danger, even when the woman would choose to sacrifice her life for the fetus.

Feldman quotes a 1913 responsum (rabbinical opinion) which applies the law of pikuach nefesh (setting aside the whole Torah to save a life) to the abortion issue in cases of danger to a woman’s psychological health:
Mental health risk has been definitely equated to physical health risk. This woman who is in danger of losing her mental health unless the pregnancy is interrupted, therefore would accordingly qualify.

Former Israeli Chief Rabbi Issar Unterman included extreme mental anguish among the “life-threatening situations” in which abortion is permitted. “Suicidal tendencies are a threat to [the woman's] life and, as such, also constitute adequate warrant” as do attacks of hysteria because “a person so afflicted can do physical harm to self or others.”

As for abortion in non-health-threatening situations, Feldman writes: “The principle that ‘a mother’s pain comes first’ is the most pervasive of all factors in the consideration of the abortion question.”

Feldman cites a responsum by Rabbi Moshe Sofer of Pressburg (d. 1839) on a related issue with implications to the abortion question. Sofer was asked by a woman if she could render herself sterile because her child-bearing had been unusually painful. His answer was that even if her husband refused permission, “she should go ahead … for she is not so beholden to him that she must undergo unusual pain for his sake. True, she does have a duty to bring forth children, but . . . no woman is required to build the world destroying herself.”

The Code of Maimonides says:
If a [pregnant woman]… has a desire to eat [certain] foods because of the sickness that comes from her craving, she may eat what she wants. Her husband may not [try to] stop her saying, “if she eats too much or eats wrong food, she might miscarry”; for her physical pain is to be considered first.
Zweig (cited in Feldman) said this quote proves that the woman’s pain is to be considered ahead of the potential life of the child itself.

Feldman cites Tosafot (later Talmudic interpretation) as saying “shame is the greatest pain.” He quotes from a mishnah dealing with the requirement of abortion in a situation where a pregnant woman would suffer shame otherwise. The case is that of a pregnant woman sentenced to death for a capital crime. According to Jewish law, execution must immediately follow conviction to spare the criminal the suffering of waiting. The Mishnah, in Arachim 1:4, therefore stated the execution of a pregnant woman is not to be postponed until after she gives birth. The Gemara quotes Rabbi Samuel as adding that an abortion should be induced so that the execution does not cause “the extrusion of the fetus,” which would disgrace the woman. Chief Rabbi Ben Zion Uziel (d. 1954) commented on this as follows:
It is clear that abortion is not permitted without reason. But for a reason, even if it is a slim reason, such as to prevent her disgrace, then we have precedent and authority to permit it.

Feldman cites the 18th-century authority, Rabbi Jacob Emden, who offered many reasons why a fetus conceived in adultery may be aborted, the most significant of which was “the great pain” the pregnancy causes the woman. Rabbi Yosef Hayyim ben Eliyahu wrote that “there is room to permit [an abortion] when disgrace is involved, which can be called ‘a matter of great need’.”

Feldman considers the pain of a woman who is pregnant with a child who may be defective a reason to permit an abortion:

If a possibility or probability exists that a child may be born defective . . . and an abortion were sought on grounds that [this] possibility is causing severe anguish to the mother, permission would be granted. The fetus is unknown, future, potential, part of “the secrets of God.” The mother is known, present, alive and asking for compassion.

He quotes Sir Immanuel Jakobovits, the Chief Rabbi of Great Britain, as saying that “a fear that the continuation of the pregnancy would have debilitating effects (psychologically or otherwise) on the mother would, justify abortion.” (However, permission for an abortion would not be granted by most authorities on grounds of pity for the child whose life would be less than normal, said Feldman. He cited only one arbiter, Rabbi Eliezer Waldenberg, who permitted abortion to prevent birth of a defective fetus on grounds that no legal bar exists, especially in the early stages [Responsa Tzitz Eliezer, Vol. 9, 1967].)

The rabbis also took into consideration the situation of the woman’s family. Rabbi Yitzhak Oelbaum was asked whether a woman whose milk was affected by her pregnancy and whose infant could not tolerate formula could have an abortion. He replied that it would be justified to protect the health of the living child.

Although Jewish communal involvement in the abortion issue predates the 1973 Supreme Court decision, abortion has not been high on the agenda of the organized Jewish community. Lobbying efforts and the distribution of information and program material has been left largely in the hands of the women’s organizations.

Organizations such as the American Jewish Congress, the (Reform) Union of American Hebrew Congregations and the (Conservative) United Synagogue provided testimony before the New York and New Jersey Legislatures advocating repeal of laws prohibiting abortion.

In 1979, the American Jewish Congress filed a friend-of-the-court brief in opposition to an Illinois statute requiring unmarried women under 18 to obtain parental or court permission for abortions, on the grounds that the statute violates the First Amendment by “legislatively preferring some religions over others and by denying women free exercise of their own religious beliefs regarding abortion.” Rabbi Henry Siegman, Executive Director of the A.J. Congress, testifying before the Senate Subcommittee on Separation of Powers in June, stated that “the proper role of government in a free society is to allow the different religious traditions to inculcate their own beliefs with respect to the appropriateness of abortion, and to leave that final decision to the woman, answering to God and conscience.” The A.J. Congress sponsored a Teach-in on Abortion in March 1981 (see Kol Ishah).

Jewish organizations were among the signers of a friend-of-the-court brief to the U.S. Supreme Court urging a rehearing of the 1980 Harris v. McRae case, in which the Court decided that it is not unconstitutional for states to severely restrict Medicaid funding of abortion (the re-hearing was denied). Included among the signers were the American Jewish Congress, B’nai B’rith Women, National Council of Jewish Women, National Federation of Temple Sisterhoods, United Synagogue of America, Women’s League for Conservative Judaism and the UAHC.

The Commission on Social Action of Reform Judaism has developed a set of guidelines on abortion rights and lobbying techniques from a Jewish perspective. The Reform movement, as far back as 1968, pioneered in a Course on Human Sexuality, with a unit on abortion. Rabbi Alexander Schindler, UAHC president, attacked the analogy between abortion and the Holocaust, voiced by some anti-choice advocates. For example, Terence Cardinal Cooke said: “. . . People favoring abortions . . . open up the gates—as Hitler did—to making the decision who shall live and who shall die.” Schindler called such analogies a “perversion of the truth,” demanding to know if those who stumbled out of the box-cars at Auschwitz were free to turn to the right or the left; and if those who entered the showers could choose oxygen instead of Zyklon B.

Both the (Reform) Central Conference of American Rabbis and the (Conservative) Rabbinical Assembly have passed resolutions supporting freedom of choice as did the movements’ lay members. About 300 rabbis (Conservative and Reform) joined with other clergy to pledge “to ask our organizations to consider abortion rights an issue of major concern,” and “to work vigorously to protect the option of legal abortion for all women … [and] make every effort to promote the pro-choice point of view.”

Rabbis on the other side of the issue include Abraham B. Hecht, president of the ultra-Orthodox Rabbinical Alliance of America. He recently issued a press release charging that Schindler’s remarks supporting abortion rights were contrary to Jewish law. Hecht quotes Schindler’s reference in a recent speech to “the bloated bellies of starving infants” whose parents are in anguish because they cannot feed them. Hecht commented: “How misleading can one become when he wishes to distort the truth? Have we ever seen or heard of’ starving infants with bloated bellies’ in these blessed United States? Are our women in these prosperous United States to buy this cheap sentimental description as an excuse for abortion?”

All national Jewish agencies belonging to the National Jewish Community Relations Advisory Council are on record as of 1979 as “opposed to attempts to enact.. . ordinances inconsistent with the 1973 Supreme Court ruling.” The only exceptions are the Union of Orthodox Jewish Congregations of America (UOJCA) and Hadassah.

The UOJCA dissented, saying: “from conception the fetus is considered a live person with the right of any other individual.” This statement, phrased in language similar to that employed by the Catholic hierarchy, tends to create the mistaken and misleading impression that abortion is never permissible under Jewish law. Recognizing that this statement could be misinterpreted, in 1980, the UOJCA changed the formulation of its dissent to read: “the UOJCA, in consideration of the hahchah, opposes any public policy permitting or encouraging abortion.”

If incorporated into American law, the UOJCA interpretation would deny Orthodox Jews (and everyone else) the right to abortion even to save the life of the woman. This means Orthodox Jews would be denied the freedom to observe Jewish law, which allows abortion under certain circumstances.

Hadassah, describing itself not as a women’s organization but rather an organization composed of women, said there was “no consensus on the issue among its members.” (At its 1981 National Convention, Hadassah passed a resolution entitled “Freedom of Choice.” The resolution supports the Constitutional “principle of individual freedom,” opposes any regulation diminishing it and “regards Freedom of Choice as a matter of privacy of the individual to be determined by each woman in accordance with her own … values.” Although the resolution is extremely vague in its wording, and does not mention reproductive rights at all, Hadassah’s executive Director, Aline Kaplan, told LILITH it was “clear to everyone present that it meant abortion rights”and she had noted this in the files. Kaplan said the resolution was probably worded so vaguely so as not to offend its Orthodox members. But, she added, the sentiment at the convention, even among the Orthodox women, was overwhelmingly pro-choice. Kaplan said that the next time the NJCRAC resolution on abortion comes up, Hadassah will “not abstain”—Ed.)

There is a split among the members of the Leadership Conference of Jewish Women’s Organizations. Those women’s groups that are more traditionally oriented—such as American Mizrachi Women, Emunah and the Women’s Branch of the Union of Orthodox Jewish Congregations of America—have taken no position. Those that have taken a stand, support freedom of choice on abortion: the Women’s Division of American Jewish Congress, B’nai B’rith Women, National Council of Jewish Women, National Federation of Temple Sisterhoods (Reform), Pioneer Women, Women’s American ORT, and Women’s League for Conservative Judaism.

The National Council of Jewish Women (NCJW) Has long been a strong and active advocate of the pro-choice position. At its National Convention in Louisville, Kentucky this year, the NCJW adopted resolutions urging that “all women have access to abortion as a safe and legal medical procedure, with government funding provided where needed,” and that “every woman’s right to choose abortion [be protected] as an individual right . . . [eliminating] any obstacles that limit her reproductive freedom.”

The First Amendment explicitly states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . .” It was designed to prevent precisely the kind of religious warfare now being waged on the issue of abortion; to protect the religious liberty of all people in a pluralistic society.

All polls indicate that Jews strongly support the concept of freedom of choice. This is not necessarily based on theology, but on pragmatism. Having suffered as a people the consequences of living in repressive societies, having been denied for so long the right to live in religious freedom, most Jews are reluctant to interfere with the religious rights of others. Most Jews, no matter how they regard abortion personally, would not want to see Jewish law—or any other religious law—imposed on American society.

The basic issue at stake here is freedom. None of the pro-choice groups would force anyone to have an abortion or to perform an abortion. What is at stake is a woman’s legal right to freedom of choice regarding abortion, based on her own religious and moral conscience.

That right must be preserved.

Annette Daum is coordinator of the Department of Interreligious Affairs, Union of American Hebrew Congregations, and consultant to the Commission on Social Action of Reform Judaism. She also staffs two task forces on Equality for Women of the UAHC.

For the first time since the 1973 Supreme Court decision legalizing abortion, the US has an Administration that is anti-choice.

• On January 22, 1981, the eighth anniversary of the Supreme Court decision guaranteeing freedom of choice in abortion— three days after President Reagan took office—the President went out of his way to see an anti-choice delegation, the first such special-interest group he met with after taking office.

• Pleading a tight schedule, the President avoided a delegation from the Religious Coalition for Abortion Rights, a national umbrella organization composed of 27 different interfaith groups which hold varying views as to when abortion is morally justified. RCAR opposes government legislation which would deny freedom of choice based on personal religious principles and which would impose the particular religious doctrine of the group on all Americans.

Despite protests and additional requests, the RCAR has been unsuccessful in its attempt to meet with the President. Seven Jewish agencies—all members of the RCAR— joined in voicing their concern. They are National Council of Jewish Women, B’nai B’rith women, National Federation of Temple Sisterhoods, American Jewish Congress, Women’s League for Conservative Judaism, American Jewish Congress Women’s Division and the Union of American Hebrew Congregations.

• For the first time, an anti-choice rally, misnamed “March for Life,” held in January 1981, was addressed by a Cabinet-level officer, Secretary of Health and Human Services, Richard Schweiker.

• For the first time, the president of an anti-choice group, American Citizens Concerned for Life, Marjorie Mecklenberg, was designated to run the Office of Adolescent Pregnancy. Both Schweiker and Mecklenberg support a Human Life Amendment. Both are opposed to Medicaid funds for abortion, and to sex education and contraceptive information for pregnant teen-agers. Mecklenberg was quoted as saying, “Elected officials will be held accountable just as the Nuremberg Trials found individuals personally responsible for crimes committed against humanity.”

• For the first time, the nominee for Surgeon-General, Dr. C. Everett Koop, was reported by National NOW Times to have been a board member of two anti-choice groups—the National Right-To-Life Committee and Americans United for Life. He is also the narrator of a controversial anti-abortion film, “Whatever Happened to the Human Race?” The film is described by Options, a publication of RCAR, as contending that “a society which ‘devalues’ life by permitting women to choose abortion is on an irreversible path to… the Holocaust.” As Surgeon-General, Dr. Koop would be responsible, among other things, for collecting and interpreting data on aspects of public-health policy that directly affect women, as well as issuing an Abortion Surveillance Report.

• For the first time since the Supreme Court decision, control of key Congressional committee chairs is in the hands of anti-choice legislators: Sen. Strom Thurmond (R-SC) chairs the Senate Judiciary Committee; Orrin Hatch (R-UT) the Subcommittee on the Constitution, and John East (R-NC), the Subcommittee on Separation of Powers.