It has now been 35 years since the Supreme Court ruled in Roe v. Wade. By a margin of 7-2 the court ruled that abortion was a private matter and that privacy was a constitutionally protected right. The ruling sparked massive protests that to this day have not ceased. In recent years, many in the Jewish world have joined hands with certain Christian groups in an attempt to block women from having the right to an abortion. Rabbi Shafran and his organization, Agudath Israel, lament those in the Jewish world who have constantly defended a women’s right to choose:
“Even more troubling to me as a Jew than the misunderstandings of the facts is that a number of rabbis and Jewish organizational spokespeople have asserted that Jewish religious tradition is somehow offended by the recently upheld law. The president of Hadassah [Nancy Falchuk], to take one example, has baldly stated that the law “undermines Jewish values. She and others who have made similar claims are misinformed and, in turn, misinform.”
To be sure, the Talmudic sources are clear that the life of a Jewish woman whose pregnancy endangers her takes precedence over that of her unborn when there is no way to preserve both lives. That is why while Agudath Israel opposes Roe v. Wade’s effective “abortion on demand,” it has not favored–and would never favor–a wholesale ban on abortion.
While the matter is not free from controversy, there are rabbinic opinions that allow abortion when the pregnancy seriously jeopardizes the mother’s health. But those narrow exceptions do not translate into some unlimited “mother’s right” to “make her own reproductive choices” — the position Hadassah enthusiastically trumpets.
To some degree, Rabbi Shafran is correct about his reading of Jewish law. I would agree with Rabbi Shafran that partial birth or late term abortions should be curtailed. But I think he downplays the uniqueness of and balance of the Jewish position on this issue. It neither privileges life or death, but rather the fullness of living. Judaism really stands in between both extremes of this debate. That is, it respects both the quantity as well as the quality of one’s life; it looks at health beyond mere physical wellness but also asks about the mother’s emotional wellbeing.
Furthermore, I am still not sure how and why Rabbi Shafran equates halakha (Jewish law) with state law. Since when is Hashem the posek (legal decisor) for Hindus living in Arkansas? More importantly, Rabbi Shafran ignores that there is more to Judaism than merely law. Jewish law for last two thousand years has never been identified with the same police force and coercive apparatus associated with state law.
In opposition to Rabbi Shafran’s view of Jewish law stands the Rambam (Maimonides). According to Maimonides in his book on repentance the lynchpin of Jewish law is the freedom to choose. In his laws of repentance (4:3) Maimonides writes:
This matter [of there being a free will] is a very important principle, and is a the foundation of the Torah and meritorious deeds, as it is written, “See, I have set before you on this day life and good, and death and evil”. It is also written, “Behold, I set before you on this day a blessing and a curse”. This is to say that one has the free will to do what one wants, whether it is good or bad. It is for this reason that it is written, “O that there were such a heart in them”, i.e. the Creator does not force or decree upon anybody to do good or bad, but lets them choose.
Maimonides goes evewn further aguing that without unfettered free will one can never truely ever fully repent, (2:1).
“Repentance is completed when an opportunity to commit one’s original transgression again arises but one doesn’t and repents instead, but not if the reason for repenting was that someone was watching or because of physical weakness. For example, if one copulated in sin with one’s wife, and then later one had another opportunity to do it again but didn’t, then even though one may still love her and she may be in perfect physical health and was even in the same country [when the opportunity arose], one has repented completely.”
Without the ability to choose, according to Maimonides, all of Torah would be meaningless because we all would be mere robots. The metaphysical weight granted to mitzvot (good deeds) is relative to the amount of choice surrounding the action. At its core, Jewish law derives its meaning precisely from peoples’ ability to choose and to bear the responsibility of those choices.