A Reply to Rabbi Yaakov Menken on Abortion

by Rabbi Michael J. Broyde

Rabbi Menken wrote:

Abortion: I do not know the source for Rabbi Dr. Broyde’s claim that per Agudath Israel, “a fetus is not a person in the Jewish tradition.” I have not seen such a statement from the Agudah; on the contrary, to my reading the Agudah has said the opposite.

I will try to address this question directly.

First, it is important to be factually clear here: The Texas Heartbeat Anti-Abortion Law contains no religious exemption to it. As the New York Times notes “The only exception is for medical emergencies” and nothing else. There is no exception for “pregnancies resulting from rape or incest, nonviable pregnancies in which the fetus still has detectable cardiac activity, or cases in which the fetus has a fatal and untreatable condition.” Furthermore, everyone agrees that Agudath Israel does not support the Texas law, since they say so explicitly here in a document, a fact that Rabbi Menken elides.  Agudath Israel explains that “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.” Why include a religious exemption? We do not support religious exemptions from the laws of murder or theft? (To allow someone to kill me because their religion mandates it, is – to note the obvious — ridiculous.) Rather, the answer is clear: since the status of a fetus is in dispute in halacha – with some claiming a fetus is a person and abortion is murder and others arguing that a fetus is not a person and abortion is not murder — Agudah wants to give all religious authorities the right to decide this question as they wish, including committing an act that some consider murder, but others do not.  To do this, Agudath recognizes that American law must determine that that a fetus is not a person, and abortion is not murder, as a matter of American law.

Second, Rabbi Avi Shafran – the director of public affairs for Agudath Israel of America – states explicitly that “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. **** I would not favor any law that affords full personhood to a yet-unborn baby.” A potential life is not a life, but some lesser status and not a person. Because of this, religious exemptions are permitted.

Third, and more importantly, Agudath Israel itself adopts this view in their brief to the United States Supreme Court in Casey v. Planned Parenthood. Agudah makes is quite clear that they do not agree with Roe and they do not think that there should be a right to have an abortion in every case. But, they also make it quite clear that there are cases in which they seek constitutional protection for the right to abort whether or not the mother’s life is in danger.[1] This cannot be defended in the framework Rabbi Menken has advanced – since he maintains that one should never permit an abortion other than in cases of mortal danger to the mother’s life as the fetus is a life – whereas Agudah seeks to defend the right to abort in any case in which any “Fundamental” Constitutional right is at stake.  Agudah is prepared to allow any “clergy” to authorize an abortion or even any person when they assert that their religion mandates it — even liberal ones and even ones who will permit abortions that Rabbi Menken thinks are murder.

Finally, because Rabbi Menken’s summary of halacha makes no mention of any view within Jewish law that supports the idea that a fetus is not a life and killing it is not murder, a reader might wonder where these views come from. This short note is not the place to review the halachic issue related to abortion: suffice it to note that these are well known views advanced by many Jewish law authorities for more than 1,000 years that abortion is not murder since a fetus is not a person — from Rashi (Sanhedrin 72b) justification of abortion since the fetus is not a person to Tosafot’s claim (Niddah, 44b) that abortions are mutar, to the Tzitz Eliezer’s assertion (Tzitz Eliezer 13:102) that even after fetal-viability an abortion is permitted even when the mother’s life is not in danger. Indeed, classical Jewish law theoreticians posit that besides murder, it is possible that abortion is prohibited because it is the destruction of potential life (Chavot Yair 31) or of the positive commandment to have children (Mishpatai Uziel 4 CM 46) or the prohibition to damage oneself (Maharit 1:97), or even the Zohar’s (Shemot 3b) idea that abortions drive the Divine presence away as well as others.[2]

My basic religious view is that Agudah is adopting the same view on abortion that Rabbi Moshe Feinstein directed them to adopt on time of death, which is that on matters which are in reasonable dispute as a matter of Jewish law, the role of the secular government is not to resolve this dispute but to allow each person to do as their faith directs.[3] This cannot be done unless the fetus is not a life as a matter of American law.

Allow me to summarize my view:

  1. If one adopts the view that a fetus is a person, then abortions are only permitted to save the life of the mother, as Rabbi Menkin supports. No general religious exemption is proper or needed, no different than killing people generally.
  2. On the other hand, if one thinks a fetus is not a person, even if one does not support abortion on demand, one could support the right to have an abortion for many reasons in addition to medical danger to the mother, including matters of religious faith, as Agudath Israel notes.
  3. Many giants of halacha do not think abortion is murder. Some think it is. All agree that there is no right to have an abortion in halacha for trivial and not significant reasons, at least after 40 days of pregnancy.
  4. Because of these ideas, it is wrong as a matter of Jewish law and ethics to claim in a definitive and normative way that abortion is murder in the Jewish tradition.
  5. Because of these ideas, it is wrong to seek secular laws that coerce people into violations of Jewish law.
  6. Rather, it is more logical to support policies that can never interfere with a persons ability to obey Jewish Law.

In short, Agudath Israel balance of the competing dictates of Jewish law correctly motivate it to consider a fetus not a person in American law.

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.

  1. See https://drive.google.com/file/d/1SRFUrn8B4PQNiCe1sk5sCCSRUks_mfr9/view. The full text of Agudah’s argument is:

    In Extraordinary Cases, Where the Constitutional Source of the Claimed Abortion Right Includes a Source In Addition to the Personal Liberty/Privacy Interest — For Example, Cases Where Abortion Is an Expression of Free Exercise of Religion – Abortion Should Remain a “Fundamental” Constitutional Right 

      

    The conclusion that most abortions are not expressions of a “fundamental” right does not mean that all abortions are not expressions of a “fundamental” right. Some are — and should expressly be recognized as such. Consider, for example, the case of a pregnant woman whose clergyman advises her to procure an abortions as a matter of religious obligation — as in fact a rabbi may advise a Jewish woman under certain extraordinary circumstances. When that woman seeks an abortion, her claim is constitutionally grounded not only in her general liberty/privacy interest, but also in her First Amendment right freely to exercise her religion. Under such circumstances, the woman’s claim to abortion deserves enhanced constitutional status. Free exercise rights are indisputably “fundamental.” E.g., Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). Government may not burden free religious exercise unless it can show that “an inroad on religious liberty . . . is the least restrictive means of achieving some compelling state interest,” Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 718 (1981); or, as the Yoder Court put it, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” 406 U.S. at 215. Although the Court has not had occasion to consider the applicability of its free exercise jurisprudence to the abortion context — Harris v. McRae, 448 U.S. 297, 320-21 (1980), the one case where the issue was raised, was dismissed on this point because the plaintiffs lacked free exercise standing — there is every reason to emphasize both its relevance and importance in any post-Roe regulatory framework. It is true that in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), five Justices of the Court voted to curtail considerably the scope of the Free Exercise Clause, holding that free exercise protection does not extend to laws of general applicability that burden religious practice only incidentally. Nonetheless, even the Smith majority acknowledged that “the First Amendment bars application of a neutral, generally applicable law to religiously motivated action . . . [where the free exercise claim is advanced] in conjunction with other constitutional protections . . .” 494 U.S. at 881. Such a “hybrid situation,” id. at 882, which under Smith does merit heightened constitutional protection, would appear to be present when a woman seeks abortion as an expression of her religious beliefs; her claim in such cases would be predicated on the twin constitutional bases of liberty/privacy and free exercise. The interplay between abortion and free exercise of religion is by no means a trivial issue.

  2. For more on abortion and Jewish Law, see Daniel Eisenberg, “Abortion in Jewish Law at https://www.aish.com/ci/sam/48954946.html or The Ner LeElef publication “The Jewish Approach to Abortion” https://www.morashasyllabus.com/class/Abortion.pdf or Fred Rosner, “The Jewish Attitude toward Abortion” Tradition 10:2 48-71 (1968) and Rabbi J. David Bleich, “Abortion in Halakkhic Literature” Tradition 10:2 72-120 (1968) or Daniel Sinclair, “The Legal Basis for the Prohibition of Abortion in Jewish Law” Israel Law Review 15:1 109-130 (1980) or Rabbi Aaron Lichtenstein, “Abortion: A Halachic Perspective,” (trans. Nathanial Helfgott), Tradition, 25:4 3-12 (1991). What one sees from these sources is a diversity of approaches.

  3. Rabbi Feinstein writes in Iggrot Moshe Hashkafa 4 (in volume 9) (The translation is fast draft and I welcome corrections).

    בע”ה ח’ שבט תשל”ז

    הנה על פי דין התורה אי אפשר בשום אופן לא אפילו אדם גדול בתורה להכריח לאחד בעניני גופו ונפשו לענין חשיבות המיתה, מחמת שלדעתו הוא כבר כמת שיקבל דעתו, וגם לא לשום מדינה ומלכות לומר שיקבלו דעתם, אלא האדם החולה בעצמו וגם קרוביו הם צריכים להחליט בזה, זאת אומרת אם אינו כנגד התורה אחרי שישאלו דעת חכם גדול ומובהק בזה, וכאשר מדינתנו ארצות הברית באמעריקא אין רוצים ח”ו לכוף למי שהוא לעבור על דיני התורה, יש להם לקבוע סעיף מיוחד על מה שיקבעו בעצמם, שהחולה בעצמו וקרוביו לא יהיו מוכרחין לכל מה שיקבעו בזה אם הם אין רוצים כיון שנוגע זה לגופו ונפשו. ויותר לדעתנו היה נראה שאין זה הדבר השייך לממשלה ומדינה כי זה ענין פרטי לכל אדם בעצמו והוא ענין הנוגע לתורה והלכה של אמונתנו. משה פיינשטיין

    The eighth of Shevat 5737 [=January 27, 1977]

    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]. And in our opinion even more so it would seem that this is not the type of thing that belongs under the government or state at all because it is a private matter to every person alone and it is a matter that concerns the Torah and Halakha of our faith. Moshe Feinstein.

    This teshuva is discussed by Rabbi Chaim Dovid Zwiebel,Esq. “Accommodating Religious Objections to Brain Death: Legal Considerations”  Journal of Halacha and Contemporary Society, 17: 49-68 (1989).

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24 Responses

  1. nt says:

    Rav Asher Weiss in a presentation to Cedars Sinai on beginning of life (available on Youtube) says he considers a fetus a potential life, and in some cases abortion is recommended.

  2. Michael Broyde says:

    The statement of Rabbi Asher Weiss is found at https://www.youtube.com/watch?v=X2Xil5FjkVs&t=2991s at minute 40 where he explicitly uses the phrase “a potential human being” as Rabbi Shafran also does.

    • Steven Brizel says:

      Yes R Asher Weiss says that we are Mchallel Shabbos for an embryo for that reason based on Rash and Ran in Yoma who quote R Yehudah Gaon but where on this video does R Asher Weiss and u see what circumstances is abortion permitted?

  3. D K says:

    What is totally left out by Rabbi Broyde (and i feel that many Halachikists [i.e. those that focus solely on Halacha] do is that they leave out Hashkafa which is the soul of Yiddishkeit, and end up with a very dry and simplified form of Judaism. While all his and many others may have all the facts and sources down 100% and we may even Pasken so when the Rabbi is asked the question by someone, to claim that this is Ratzon Hashem and what the Torah states is simply false.
    It cannot be denied that the Western world has sunk to levels that have never been reached in modern history. The lack of care of Human life and the total degrading of the Human species in general is a war that has been going on for a while now and the Torah, representing Hashem’s will is diametrically opposed to the allowance for the new Nevei HaMolech child sacrifices that pervades the current culture.
    Yes, Judaism may be more open to abortion than the new Texas law allows, BUT, the general Ruach HaTorah and everything that is stands for stands besides it in unity to say, “NO! We are not o.k. with the downward trend and lovers of murder”.

    • Steven Brizel says:

      We should be able to posit without apologetics that abortion is prohibited except in cases of a threat to the physical or mental health to the mother That places our community closer but not totally in consonance with the Prolife communities IMO it is intellectually dishonest to say that Halacha opposes abortion in all cases or does not consider abortion A violation of Lo Sirtzach except in cases of threats to the mother’s physical and mental health

  4. Micha Berger says:

    Given that Rabbi Avi Shafran explicitly said the Agudah would not support legislation that assumes that a fetus is a Iive, why are so may of us so convinced that the only viable halachic position is that a fetus is a life and that abortion is a form of murder?

    The effects of a politicized America has had an obvious effect on Liberal Judaisms. With the flexibility of what they call “Torah”, their assimilation of Liberal and/or Progressive values from the Democratic Left is quite obvious.

    But maybe we need to check ourselves and our own identification with he Republican Right. “Pro-Life” is an idiom coined by Christians, not us. Did we get so in line with a political camp that we have haven’t noticed that majority of contemporary gedolei haposqim took a position that is at odds with theirs?

  5. Steven Brizel says:

    Thank you for the source Where on the You Tube video and under what circumstances would R Asher Weiss say that abortion is recommended?

  6. Steven Brizel says:

    Please indicate where on the above linked You Tube Video that R Asher Weiss stated that abortion would be recommended

    • Michael Broyde says:

      Please see the above video around minute 53:00 to 55:00. His answer is inconsistent with the idea that abortion is murder. He repeats this importantly at minute 120:00 to 125:00 where he clearly states that a fetus is not a person.

  7. Steve Brizel says:

    Thanks for the sources R Asher Weiss states that there are cases which he does not specify where abortion is Halachically permissible and the classical analysis of Ain Nefesh Doche Nefesh with respect to a fetus that threatens the life of a mother which ceases at childbirth That is a long way from stating that major Poskim support the so called agenda of reproductive rights especially late term abortion

    • micha berger says:

      It is true that what R Asher Weiss’s pesaq “is a long way from stating that major Poskim support the so called agenda of reproductive rights especially late term abortion.” But since no one is making the claim on that far side, it’s a bit of a strawman.

      The legal and political question’s about whether we can support the kind of anti-abortion legislation that emerges when motivated by the Christian Right’s version of the belief that a fetus is a full human being. Given that the position of the majority of posqim aligns with neither Pro-Life nor Pro-Choice reasoning, we really cannot hope to get legislation more in line with our own values.

      So, what do we say as voters?

      Rabbi Broyde’s idea, that given Rav Moshe’s precedent we should give up on creating legal prohibitions, and instead support lenient laws and try to influence norms by our moral voice in society, rather than by legal fiat.

  8. Steven Brizel says:

    Obviously if a nurse or anesthesiologist refused to participate in a termination of a pregnancy on religious grounds in the US would be grounds for termination of employment and or hospital privileges and R Weiss provided Halachic justification for serving in either capacity

    • Michael Broyde says:

      Steven, You are missing the point. Rabbi Weiss is clear in his phraseology that he does not think the fetus is a person and the test for permitting an abortion is not the taking of a life.
      This goes to the heart of Agudah’s dispute with Rabbi Menken. Whether the Tzitz Eliezer is the majority or minority view hardly matters — it is a view found within the Torah world endorsed by a great posek. Do you think American law ought to prohibit a halachic authority from following it? I think not.

      Since American law does not allow religious exemptions from murder laws, doesn’t if flow that abortion is not murder, if we allow religious exemptions from it? I think that is the heart of the issue. Your focusing on the exact standard is not important. The central question is whether a fetus is a life — Rabbi Menken says yes and Agudah says no
      That does not mean abortion on demand is correct, but it does mean it is not murder. That is my point.

      • Steve Brizel says:

        We disagree the issue is whether a grave Issur Torah is permitted under exigency circumstances
        that does not mean such an issue is not implicated otherwise

  9. Steve Brizel says:

    R Weiss clearly utilized the analysis of R Chaim Brisker as to whenever Nefesh Doche Nefesh Tve issue is when a very grave Torah prohibition is suspended as opposed to saying that no such issur is implicated

  10. Michael Broyde says:

    Steven, I am not voicing here my halachic opinion. My comment is that many halachic authorities do not think that the prohibition — whatever it is — is murder (what you call “a violation of Lo Sirtzach)” which is a much more grave sin than a mere Torah prohibition. That some poskim do consider abortion murder and its grounds limited to cases of “threat to life” is beyond dispute. It is also beyond dispute that some poskim do not consider abortion murder and do not think that abortions are only permitted in cases of “threat to life”.

    The question we are discussing is what do we want the law of the United States to be? I maintain that the halachic tradition does not want American law to take a position on this question and it has to give poskim the option to follow any view they wish. That is the view of Agudah, I think.

    I I can not tell if you disagree with any of this?

    • nt says:

      I have been following this debate and I really can’t understand Rabbi Menken’s view here. Rabbi Broyde seems to clearly have the evidence on his side.

  11. Michael Jay Broyde says:

    Another issue that needs to be discussed, but is essentially hard to fully address in our society is the relationship between Noachide law, secular law, and halacha.
    Aware of the fact that laws have to be enforced against all — independent of one’s faith — does halacha support the enforcement of Noachide law by the secular government? This is particularly an issue in Abortion where many — but not all — argue that Noachide law prohibits abortions that halacha permits. Do we want secular law to enforce the Noachide law here, even as it diminishes the ability of Jews to obey halacha? I argue here https://www.broydeblog.net/uploads/8/0/4/0/80408218/obligationtoseek_s.pdf that there is no clear obligation in halacha to enforce Noachide law when it diminishes the ability of Jews to obey halacha.

    Agudah’s view — that there needs to be a religious exemption in abortion law and they will not support laws without such — is one way to broker such a compromise. Practically, what is means is that without a religious exemption, Agudah thinks we ought to not support such laws. Rabbi Menken clearly does not agree with that, although he does not focus on the fact that enforcement of secular law in these cases will force people to violate halacha as many understand it.

  12. Steven Brizel says:

    R Broyde-clearly Agudah does not agree with R Menken but its position should not be conflated beyond support for a religious exemption based on the traditonal understanding of if and when the fetus presents a threat to the life of the mother.I think that is far less problematic in this case as opposed to others than “enforc[ing] Noachide law when it diminishes the ability of Jews to obey halacha.

    • Michael Jay Broyde says:

      Steven, this is not a correct read of Aguadah’s view. Agudah supports the right of any clergy, under any circumstances, to permit an abortion when their faith mandates that abortion. I cite this material above in note 1. Agudah does not limit its reasoning to a case of ‘threat to life of a mother” but advances this argument in the name of religious freedom. Agudah writes:

      The conclusion that most abortions are not expressions of a “fundamental” right does not mean that all abortions are not expressions of a “fundamental” right. Some are — and should expressly be recognized as such. Consider, for example, the case of a pregnant woman whose clergyman advises her to procure an abortions as a matter of religious obligation — as in fact a rabbi may advise a Jewish woman under certain extraordinary circumstances. When that woman seeks an abortion, her claim is constitutionally grounded not only in her general liberty/privacy interest, but also in her First Amendment right freely to exercise her religion. Under such circumstances, the woman’s claim to abortion deserves enhanced constitutional status. Free exercise rights are indisputably “fundamental.”

      Assuming Agudah’s view became the law of the land, Agudah is permitting abortions whenever clergy mandates it as a religious obligation. No mention is made of danger to the life of the mother and no such limitation is found. Indeed, it is grounded in religious freedom and not sacredness of human life at all.

      As I note above, this view is not consistent with the idea that a fetus is a person, as no one wants religiously authorized murder.

  13. Steven Brizel says:

    R Broyde’s arguments in part led me to he following linked article https://forward.com/life/406674/orthodox-jewish-women-abortion-stories/?utm_source=Iterable&utm_medium=email&utm_campaign=campaign_2992039 which sets forth numerous cases where Orthodox women underwent abortion. It is apparent that in such cases that the preservation of life of the mother transcended that of the fetus, notwithstanding the gravity of the issur against abortion. The Texas statute , which a federal judge in Texas just found unconstitutional solely based on the stare decisis and precedental effect of Roe v Wade and the judicially declared right to abortion set forth therein, which was a decision that jurisprudentially was as bad as Dred Scott , would have prohibited such clearly necessary procedures. This is where Agudah and Poskim part company with the right to life movement which views the rights of the fetus as paramount. This strikes me as a persuasive and powerful argument which was noted in part by R Asher Weiss in the video posted by R Broyde

  14. Steven Brizel says:

    We should be able to say that Poskim disagree as to the source and extent of the prohibition of abortion but do not endorse the agenda of reproductive freedom or an absolute right to life of the fetus .Halacha recognizes the need for abortion in certain cases sanctioned by Halachic authorities as a grave physical or emotional threat to the mother .I do think that the Tzitz Eliezer is a better source for that argument than the Teshuvah in the last chelek of IM which was edited posthumously and is contradictory to other Shut In earlier volumes in IM .That statement is not simplistic but IMO is Amitah shel Torah and can be presented very cogently to any audience live ,on the web or in an amicus brief to SCOTUS which IMO is Agudah’s position RMenken who I have a great deal of respect for is conflating the Halachic view with right to life

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