Abortion and Religious Freedom: Even Agudath Israel Is Somewhat Pro-Choice
By Rabbi Michael J. Broyde
Do you think that Agudath Israel supports the new Texas abortion law? Someone reading Rabbi Gordimer’s article “Sorry, Liberal Jewish Leaders – Judaism Is Not Pro-Abortion” would conclude “of course – all faithful Orthodox Jews are pro-life and not pro-choice.”
That would be wrong. Agudath Israel opposed the Texas law. The reason is simple: a fetus is not a person in the Jewish tradition, Agudath Israel avers.
Agudath Israel, in an email distributed under their “News from the Agudah” notes as follows:
Inquiries about Agudath Israel positions and activities regularly land in Rabbi Avi Shafran’s inbox. So do commendations… and complaints.
A recent example of the latter was an email about a new law in Texas banning very early-stage abortions — one of a number of so-called “heartbeat laws,” which forbid the procedure as soon as a rudimentary heartbeat of a fetus can be detected.
The writer was “upset and disturbed” by the fact that Agudath Israel hadn’t sought to intervene in the passage of the Texas law. The writer noted that there are cases when a posek might see a threat to the life of a mother that isn’t so regarded by physicians, and thus the posek would mandate the ending, R”l, of a pregnancy. The Texas law has no religious exemption clause.
Rabbi Shafran explained that, indeed, over many years, while the Agudah has supported legislation limiting the current right to abortion, it has always taken pains, in legislatures and courts, to stress that it can only support such laws if they include a religious exemption clause.
And this is noted elsewhere by Agudath Israel as well as their view:
In line with its support for religious freedom, Agudath Israel opposes initiatives that would make abortion unlawful even in situations where termination of pregnancy is mandated by religious law – as it is, for example, under Jewish law when the pregnancy endangers the life of the mother.
As Rabbi Avi Shafran, director of public affairs for Agudath Israel, put it so well in a recent op ed “Judaism, in this sense, regards a fetus neither as a baby nor a tumor. It views it, entirely reasonably, as an entity with the potential to become a human being.” In that model – where abortion is not murder – the risks to religious freedom can be balanced against the prohibition of abortion.
It is worth understanding Agudath Israel’s view about what the law in the United States should be on abortion. Here is what I think such a law would look like.
- Abortion on demand should generally be prohibited.
- Abortion should only be permitted for valid reasons.
- Anyone who wants an abortion – at any stage in their pregnancy and under any circumstances – can produce an affidavit that the termination of their pregnancy is mandated by their own sincerely held religious belief.
Agudath Israel supports the right to abort not merely when the mother’s life is in danger, but “where termination of pregnancy is mandated by religious law,” whatever that religious law might be and from any faith.
None of us want to live in a time or place where people can be killed based on a sincere religious belief of the killer. Rather, rule 3 above is a unique rule with regard to fetuses. This view is inconsistent with the view that fetus is a life and already a human. A fetus is a potential life and not a life.
On a practical level, no one really knows what abortion law would look like if the view of Agudath Israel became the law of the United States, but it is not hard to image that such a legal universe looks more similar to a pro-choice universe than a pro-life one, in terms of abortion access, since nearly any person can claim a sincere religious belief at any time in order to permit an abortion as they need, just like nearly any person could claim a religious conscientious objector status to avoid the draft fifty years ago.  There are a variety of views found in many faiths about abortion, some of which are clear that they do not see life beginning until actual birth and mandate abortions when the child is unwanted or unloved.
There are two summaries of this piece, each valuable.
First, the model of abortion rights proposed by Agudath Israel is closer in practice to pro-choice than pro-life, even as it is ideologically hostile to casual abortion. It is predicated on the fetus not being a human or having human rights.
Second, protecting religious freedom is a deeply important value and we can not expect people to protect our religious freedom if we do not protect theirs as well. Protecting religious freedom trumps restrictions on abortion.
Michael J. Broyde has served in a variety of rabbinic roles in the United States, from rabbi of the Young Israel in Atlanta to the Director of the Beth Din of America. He is now a Professor of Law at Emory University and the Berman Director of Projects in the Emory Center for the Study of Law and Religion.
I suspect that this is true as well in the parallel case of time of death. Let me add – and I have no insider information about what is driving this policy of Agudath Israel — I suspect that the basic view that Agudath Israel adopt here is driven by the view articulated by Rabbi Moshe Feinstein (in a letter sent to Agudath Israel in 1977) about time of death matters, which has some similarities to abortion It is published in Iggrot Moshe, Matters of Theology 4 (in the ninth volume) where Rabbi Feinstein calls for personal autonomy as a matter of time of death. I think that if a person is entitled to personal autonomy in time of death the same is even more so true on matters of abortion, where the status of the fetus as a life is subject to much more profound dispute. Rabbi Feinstein writes:
According to the law of the Torah [Jewish Law], it is impossible under any circumstances for even a great Jewish law scholar to force one to deal with the matter of his body and life [soul] with regard to the importance of death, because he believes that he is already like a dead person [close to dying] and has accepted this. No state or government can say that a person must accept their view. Rather this sick person himself and his family need to resolve this matter. That is, if he is not doing anything against the Torah after asking a great Torah scholars opinion on this. When our country, the United States of America, does not want to force anyone to violates the laws of the Torah [God forbid], they have to enact a special clause on the law that they pass, that the patient himself and his relatives will not have to what secular law directs if they do not want to because this concerns [only] his body and life [soul]. ↑
Of course, the issue of people who aren’t necessarily religiously observant employing a religious exemption claim for their own purposes is a real one and exceedingly hard to parameter. Looking to close analogies, one can see, for example, in the conscious objection cases from the Vietnam war how hard it was for the Government to regulate this status in a real way. In the face of thousands of conscientious objectors during the Vietnam War, the Supreme Court interpreted the conscientious objection exemption in the context of religious freedom twice, once in Welsh v. United States (1970) and again Gillette v. United States (1971). The Court held that “What is necessary . . . for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions.” Applying that idea to abortion exemptions is not so hard. Section 6(j) of the Military Selective Service Act of 1967 provided, “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form” and if you just substitute the word “abortion” for “combatant training and service in the armed forces” you see how hard it is to regulate. No doubt, some sort of checks could certainly be put in place, but it is not easy to determine sincere religious beliefs or limit it in significant ways. ↑