Abortion has returned to the front of the American culture wars in the wake of Brett Kavanaugh’s nomination to the U.S. Supreme Court, a move likely to erode federal protections for the procedure first established by Roe v. Wade and then reaffirmed in Planned Parenthood v. Casey.
As opposed to other social issues such as same-sex marriage and school choice, abortion has been a trickier issue to navigate for the Orthodox Jewish community, which tends to identify with socially conservative and pro-Israel Republican values but lines up in religious thought and practice somewhere between the "pro-choice" and "pro-life" camps.
That complexity caught conservative star pundit Ben Shapiro, an observant modern Orthodox Jew, by surprise.
His recent tweet that "virtually every major Jewish halakhist of the modern era has barred abortion except when the life of the mother is threatened," met pushback from thousands of responses, many from rabbis and Jewish academics citing both published halakhic decisions and responsa, as well as anecdotal testimony, demonstrating the opposite.
Broadly speaking, though, several prominent rabbis do equate abortion with (a somewhat lesser) form of homicide, the majority, while proscribing what may be described as abortion "on demand," tend to categorize it more as a form of personal injury or a negation of the charge to "be fruitful and multiply."
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Based on that distinction, a range of equally prominent rabbinic figures demonstrate in their rulings a sensitivity to situations where a pregnancy will adversely impact, short of threatening, the health or well-being of the mother, or where a child will be born with severe abnormalities, including but not limited to terminal genetic conditions like Tay-Sachs.
Even beyond these cases, the 18th century Rabbi Yaakov Emden permitted a married woman who had become pregnant through adultery to undergo an abortion to avoid the birth of a child that would bear the stigma of life as a mamzer (bastard).
And in a recent lecture, Yeshiva University’s Rabbi Hershel Schachter described a case in which he deliberated with colleagues the case of a teenager who would be expelled from her religious school and community, her life derailed, if her pregnancy become known.
Therefore, the sensibility of the Orthodox community may accurately be described as "pro-life," as abortion is assumed to be prohibited unless "permitted." At the same time, though, the actual mechanics of a woman making an intensely personal, fraught decision with the support and guidance of her family, doctor, and rabbinic mentor is closer to what the "pro-choice" community has long described as the ideal context for legal abortion.
In contrast, Shapiro’s position on abortion tracks much more closely with the extremist positions of several Christian denominations, especially Catholics and white evangelicals, that insist life begins at conception. Indeed, in several public interactions recorded on YouTube, Shapiro actually calls for doctors who perform abortions to be prosecuted for murder, and states that one cannot morally draw any line after conception.
Shapiro is one of the most prominent and influential Orthodox Jews in the American political media landscape (perhaps trailing only Ivanka Trump and Jared Kushner), but seems to be genuinely unaware of the centuries-long, nuanced, and substantive Jewish conversation on the topic.
Taken more broadly, Shapiro’s confusion is another disturbing data point in an ongoing trend in which the Orthodox Jewish community takes public stances from evangelical cues on issues ranging from school choice to Israel policy.
This may be a result of the fact that the largest and most influential Orthodox Jewish umbrella organizations have not made their positions on abortion a major focus. The Orthodox Union has largely refrained from taking a definitive stance, and Agudath Israel, though it has repeatedly filed amicus briefs arguing against "personhood" laws that assert that life begins at conception, has been, publicly, all but silent.
The foreseeable result of this is that, if and when protections are rolled back by the Supreme Court, Orthodox women may find themselves, because of laws based on a "Judeo-Christian" ethic, legally unable to obtain an abortion permitted by their own rabbis and religious tradition.
Ironically, both the Orthodox Union and Agudath Israel recently welcomed the Supreme Court’s recent decision in favor of Masterpiece Cake Shop, which cited religious liberty in refusing to design a custom cake for a same-sex wedding.
But any broad-based abortion restrictions based on the right-wing Christian perspective could lead to Orthodox women having their own liberty to follow the guidance of their faith curtailed in truly life-altering ways.
The shame of it is that the halakhic tradition, with its nuanced perspective and case-by-case record, has a lot to offer an increasingly polarized and angry national debate. But if Shapiro, who prides himself on his research and information-based approach, was so uninformed, it is likely that many more Orthodox Jews, who make up only 10% of the U.S. Jewish community but whose numbers are growing fast, and are an increasingly influential voice in Republican politics, are just as uninformed as well.
It is not hard to understand the reluctance on the part of Orthodox organizations to engage on an explosive issue that carries the potential to undermine years of careful coalition building within the Trump administration and GOP establishment.
But, as abortion is sure to remain a primary focus of Kavanaugh’s confirmation and a radical fringe begins to sense impending victory, we should not be lost in the background. It is time to lead the conversation.