Why Reversal of Roe v. Wade is Welcome

Rabbi J. David Bleich

[Editor’s note: It is not every day that we are privileged to get a perspective on a current issue from one of the gedolei Yisrael that deals masterfully with both Torah sources and secular moral and legal thought. Then again, mori v’rabi Rav Dovid Bleich is not your everyday gadol. We are proud to be able to disseminate his words, which offer clarity about the difference between the theoretical issue of the beginning of life, and the practical issue of legal protection. – YA]

The brouhaha surrounding the report of a forthcoming United States Supreme Court decision reversing its seminal decision in Roe v. Wade has subsided and with it a perceived institutional need prompting issuance of ill-conceived reactive statements. The actual decision that will assuredly spark further reaction and even more intense hand-wringing has yet to be announced. Perhaps this is the time during which calm reflection upon relevant teachings of Judaism is warranted.

There are two entirely separate and unlinked sets of issues to be pondered, one constitutional and the other moral. I am not a constitutional law specialist – but neither am I entirely ignorant of U.S. constitutional law and its history. I seldom find myself in agreement with Justice Alito – but that does not mean that he is always wrong. In my opinion, as a matter of law, Roe v. Wade was incorrectly decided. The right to privacy announced in Griswold v. Connecticut in no way compels a finding that a woman’s right to privacy entails an untrammeled right to dispose of a fetus as she may desire. That is not – and, arguably, never was – a matter solely between a woman and her physician. There is a conflicting age-old principle of at least quasi-constitutional standing, viz., that the sovereign has a compelling interest in preservation of the life of each and every one of his subjects. There are no grounds to exclude unborn subjects from that interest.

In Roe v. Wade the Court astutely acknowledged that it could not determine the moment at which human life begins. Of course not! Human life begins in germ plasm within the sperm and continues until decomposition in the grave. How the human organism is to be treated at any point along that continuum is a legal, moral and theological question not necessarily related to any scientific or empirical phenomenon. But instead of candidly recognizing that ignorance does not justify feticide, the Supreme Court did precisely the opposite. It found itself powerless to protect a merely possible homo sapien.

Imagine that one day intelligent, moral and peace-loving Martians land on Earth seeking to establish fraternal inter-planetary relations with earthlings. A debate might break out with regard to whether they are “persons” entitled to the protections and immunities guaranteed by the U.S. constitution. There is no cogent legal precedent that might be invoked to determine whether they are human. Since we do not know whether or not they are “persons,” can we conclude that they may be exterminated with impunity? A hunter hiking through the woods catches sight of an apparition. He cannot determine whether what he sees is a bear or a human being. He shoots and to his chagrin discovers that he has killed a man. Is he guilty of negligent manslaughter or worse?

The Gemara debates the moment of ensoulment. The question has profound ontological implications but no bearing whatsoever upon the halakhic status of the fetus. True, over a period of centuries, halakhic decisors have disagreed with regard to that matter. But Rambam, Noda bi-Yehuda, R. Chaim Soloveichik and R. Moshe Feinstein (and, at least in one pronouncement, the Israeli Chief Rabbinate as well) – and that list is far from exhaustive – unequivocally found feticide to be a non-capital form of homicide justifiable only if the fetus itself poses a threat to the mother. Rabbi Feinstein was an extremely pleasant, sweet, mild-mannered and tolerant person. Yet, when confronted by a much more permissive responsum of a respected rabbinic figure he did not hesitate to write in response, “May his Master forgive him.”

As far as non-Jews are concerned, there is not even a scintilla of controversy. Abortion is an even more grievous offense under the provisions of the Noachide Code. For non-Jews, abortion is a capital offense. Is it conceivable that Jews and Jewish organizations now criticize the Supreme Court for acknowledging that there is no right to abortion on demand? Jews are charged to serve as a beacon unto the nations, not to urge and abet transgression of the Seven Commandments of the sons of Noah. Elsewhere, I have marshalled sources demonstrating that falsification of the Sinaitic tradition is tantamount to idolatry.

Judaism owes a debt of gratitude to the Catholic church for filling a lacuna we have allowed to develop. Rambam questioned why the Holy One, blessed be He, allows Christianity to flourish. His answer was that the Church has kept alive and given wide currency to belief in the Messiah. Were Rambam alive today, I am fully confident that he would acknowledge that such a role is now being fulfilled by others and would have offered a different answer to his question. Today, he would respond that the Church deserves accolades for preserving recognition of the sanctity of human life in all of its phases as manifest in categorization of feticide as homicide. Jews were charged with promulgating that teaching by deed and by word. To our eternal shame, Divine Providence found other ways to do so.

The argument that the lives of Jewish women will be endangered by rejection of Roe v. Wade is specious – and fully known to be so by those who advance it. Pregnant women had no constitutional difficulties in procuring medical abortions before Roe v. Wade and will face no constitutional barrier after its repeal. True, it is possible, albeit unlikely, that some few states might enact a blanket prohibition against abortion; it is even more unlikely that such a prohibition would survive constitutional challenge.

Craven political correctness is no defense for the indefensible. We should not seek to curry favor with, or the approbation of, the so-called intelligentsia. I daresay that no Jewish woman died as a result of legal restraints prior to Roe v. Wade. No Jewish woman is likely to die in the wake of its repeal. Abortion for medical need will continue to be available in most, and probably all, jurisdictions. If any lives are lost it will be because of inability to afford the expense of travel, not because of constitutional impediment.

What should the Jewish response be? It should be two-fold. One, the establishment of a fund to defray the cost of travel to a jurisdiction in which a life-threatening pregnancy can be terminated, such a stipend to be limited to women who produce a statement signed by a recognized posek attesting to the halakhic propriety of the procedure. Two, a second, far larger fund to provide for care of pregnant women who carry their babies to term but feel compelled to surrender them for adoption. That is the response of rachamanim bnei rachamanim.

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74 Responses

  1. mb says:

    Sorry to say this, but I don’t share your admiration of this piece.It’s wrong on many counts especially the foolish comment about no Jewish woman will die because of overturning R v W.Awful on several counts including if i’m only for myself what am I? Or that none died previously? Really? And for the record we don’t owe a debt of gratitude to the Catholic Church for anything.

    • Bob Miller says:

      Every abortion causes at least one death.

      • mb says:

        Indeed, so it should remain legal and safe so it doesn’t cause two! I deliberately left off rare, although that would be ideal,the reality is, it isn’t. But humans are endowed with free choice. Hopefully we make the right choice. Expecting women/girls to consult with clergy for permission and if granted getting a hand-out for travel expenses if needed is quite preposterous.

  2. Bob Miller says:

    Let’s say Roe v. Wade goes away in favor of autonomy for every state. The principles set forth in this article would then call for Jews in the various states to campaign vigorously to minimize abortion. We Orthodox Jews should do this no matter how much we’ve been politically intertwined with state-level Democrats. But will this happen? Old habits, in this case the common habit of looking away, die hard.

  3. D K says:

    Yasher Koach Rabbi Bleich for the article. May Roe vs. Wade be overturned and be the catalyst for a reversal of the way that society in general has been traveling over the past 70 years.

    • Phil says:

      Why would you want us to move backwards?

      • D K says:

        Take a look at a clip of a baseball game from 80 years ago and your question is answered. The crowd is dressed in suits + ties. When a player hits a homerun, the crowd stands up to clap and then sits down.
        Compare that with nowadays.

      • Raymond says:

        Because thanks to so-called progressivism, America has overall taken the wrong turn these past seventy years, and so we should at least make the attempt to return to doing things the right way.

      • Steven Brizel says:

        Roe ranks with Dred Scott and Lochner as one of the worst decisions in the history of the Court. Its holding and rationale were viewed as improper judicial legislation by great constitutional scholars who as a matter of policy would have voted for its holding as legislation but who viewed the case as the Court’s failed attempt to resolve a controversial public issue as to which there still is no public consensus., and who found no basis for the decision within any constitutional provision or any concept of ordered liberty,. Like it or not, what works in NY or California or Illinois does not work in Texas or Florida

      • Nachum says:

        Because moving forwards is not always good.

  4. Ben Dov says:

    “Pregnant women had no constitutional difficulties in procuring medical abortions before Roe v. Wade”

    What is the source for this claim? And how is “medical” abortion defined? Rabbi Bleich’s own article in Tradition discusses various situations that justify abortion depending on which posek.

    “Since we do not know whether or not they [martians] are “persons,” can we conclude that they may be exterminated with impunity?”

    Doubtful personal status may be a factor, I’m guessing, in allowing abortion in the face of some heavy competing concerns.

    “As far as non-Jews are concerned, there is not even a scintilla of controversy.” Rabbi Bleich’s own article cites opinions that the prohibition is variable or dismissed during the first 40 days.

    • Bob Miller says:

      Prior to Roe v. Wade, states could legislate, as they deemed necessary, to create limits on abortion. The US Constitution would restore this situation if Roe v. Wade just vanished. Given the strength of the liberal pro-death movement in states where most Jews now live, the likelihood of total abortion bans there is very low. Some such states could go so far as to allow types of infanticide, because families and children are, shall we say, rather low on thir priority list..

  5. Natan Slifkin says:

    “No Jewish woman is likely to die in the wake of its repeal. ” I am very surprised that in a forum which is normally wary of stirring antisemitism, such a sentence could be printed.
    Also, let’s think how this would play out, even for a Jewish woman. Some teenage girl is raped by her uncle the rosh yeshivah. A few weeks in, she realizes that she is pregnant. Then what happens? She goes and gets a statement signed by a prominent posek, and gets tens/hundreds of thousands of dollars from a fund to fly to a different state and gets all the care she needs there? Is this realistically going to happen?

    • Bob Miller says:

      How many abortions for far lesser reasons would you tolerate in the US to make this one tragic victim better able to cope? At least Rav Bleich’s solution or something like it wouldn’t give a green light to all abortions.

  6. Natan Slifkin says:

    “As far as non-Jews are concerned, there is not even a scintilla of controversy. ”
    This is incorrect. Rav Melamed writes as follows:
    אמנם נראה שלעניין היתר הפלות במצב של חולי חמור, דין בני ישראל ובני נח שווה, ובכל מצב שמותר לישראל להפיל מותר גם לבני נח
    But perhaps R. Bleich is simply refusing to acknowledge the existence of different views, just as he dismisses the existence of the Tzitz Eliezer, who was lenient on abortion, and does not even mention him by name, on the grounds that Rav Moshe disagreed with him (even though many Poskim would send people to the Tzitz Eliezer for a heter).

  7. Maple says:

    This is morally reprehensible. “No Jewish woman is likely to die in the wake of its repeal” is such a bizarre thing to say. Why does R’ Bleich think this? Perhaps R’ Bleich thinks that no Jewish women live below the poverty line? Or there will magically be funds available for any Jewish woman who lives in a jurisdiction where abortion is illegal to travel to a jurisdiction where abortion is legal? Where will these funds come from? Well-meaning Jews like R’ Bleich? I doubt it.

  8. Steven Brizel says:

    This article is a welcome restatement of the majority view that abortion is prohibited unless it is medically necessary. as determined by a woman’s doctor in consultation with a Posek with broad enough shoulders to deal with the issue. I think that in extreme cases such as rape and incest posed by R Slifkin, that which needs to be done will be accomplished but without fanfare We should be able to set forth the mainstream halachic position and set forth why we don’t support the agenda for “reproductive freedom” aka abortion at any time for any reason or an absolute right to life position without hiding our communal face and Mesorah in the proverbial sand.

    While the Tzitz Eliezer ZL supported the termination of a Tay Sachs fetus as not being a Bar Kayama, one would he hard pressed to say that Psak should be extended for cases such as any other abnormality that is detectable on a sonogram or for a woman who woke up after a consensual encounter and realized that she was pregnant. WADR to R Slifkin, RSZA also referred women to the Tzitz Eliezer but perhaps what R Slifkin called “different views” are either what Posklm would call as snif lhakel or Bshaas Hadchak Bedieved dami as opposed to a lchatchilah position.

  9. A Thinking Talmid says:

    Rabbi Slifkin,

    I don’t think Rav Bleich was getting involved in the question if there ever is a heter for a non-Jew to perform an abortion. If I remember correctly, that is a machlokes Rishonim.

    Rather, Rav Bleich is saying that in a case where there is no heter for an abortion (either because no heter exists halachically OR because no heter exists under the specific circumstances), a non-Jew is committing murder.

    If Rav Melamed accepts a more lenient opinion regarding a Jew performing an abortion (for example for mental health reasons) and also allows this for Bnei Noach, that would be very interesting. However, Rav Melamed is discussing מצב של חולי חמור, I’m not sure that means mental health, other than suicide.

    I personally am a little troubled by Rav Bleich ignoring the Tzitz Eliezer. L’maaseh, I think Rashi is clear that for Jews it isn’t murder. That should make it a machlokes at worst. But by Bnei Noach, the source is שופך דם האדם באדם, an אדם in an אדם, to me, the simple משמעות of this is that it is murder.

  10. Dave says:

    What about MO that will possibly pass a law barring women from attaining abortions in other states? What about miscarriages that require treatment akin to abortion? What about fertility treatments which also are “abortions” according to extreme view on abortion? And since when is the “likelihood” that no woman will die, a cause for celebration? Chillul Shabbos is a mitzvah for a danger of only one in a thousand.

    • Nachum says:

      How about a danger of a few dozen for tens of millions?

      In my humble opinion, R’ Bleich would have been better off not talking about health exceptions at all. As he himself says, there is no way it would be an issue, and acting as though it is- while understandable, considering how Orthodox (and other Jewish) apologists for abortion love to talk about it- gives unearned ammunition to the pro-abortionists.

      • Dave says:

        Tens of millions of what? You think that an aborted baby is the equivalent of a dead mother? And why would it never happen? Because you say so? As a matter of fact, according to your extremist view, it precisely should happen – because you equate the fetus to the mother. Absent the din of rodef, which I assume Catholics and Protestants do not accept, it would be eminently reasonable to ban all abortions (as they do in Central America) or at the very least make it extremely hard to get one.

    • Steven Brizel says:

      I am not sure whether proposed legislation of that nature will pass constitutional muster nor any of the other cases that you posed and I don’t see a groundswell of support for such admittedly extreme legislation .Mire fundamentally,I see any recognition yet that in the secular world most abortions that are sought are the product of an unprotected casual encounter or what in today’s secular culture is called aka hook up or a one night stand

      • Dave says:

        1. “I am not sure” is nowhere near sufficient to applaud a potentially life-endangering development.
        2. There has already been a case of a woman in Texas having to go to NM to get life-saving treatment in the case of an ectopic pregnancy, because the pharmacist was worried about civil liability. For all we know there may be a number of such stories.
        3. You don’t see a groundswell of support in deep red states? I do.

    • Nachum says:

      Missouri isn’t passing anything.

      I guess the upside of all these scare tactics is that it’s a sign that abortion itself is such a “losing issue”- among the American public and certainly among Orthodox Jews. So blatant dishonesty has to be resorted to.

  11. SKJ says:

    This is shockingly one sided and out of touch with reality, what women go through, how often abortions are mandated in Orthodoxy and to not even mention Mother’s mental health? Absolutely appalling.

    • Steven Brizel says:

      Who said or wrote anything that Halacha would bar abortions in these cases?

    • Raymond says:

      What is truly shockingly one-sided is how anybody can be so heartless so as to advocate the killing of tens of millions of helpless, unborn babies. Are we a civilized people, or a savage nation?

      • Bob Miller says:

        Some of each, but the ideologically driven destroyers have been grabbing power. Widespread liberal Jewish support for them puts us all in a bad light. People wonder how Jews can stoop so low, and I try to explain how many of us are divorced from our own religion. But how could I explain the passivity of those Orthodox groups who fail to see the problem?

  12. Daniel Schwartz says:

    Woman: “I need access to the fund to assist me in traveling to get an abortion. Here is a letter from Posek X attesting to it’s Halachik propriety.”
    Fund Manager: “I’m sorry, we don’t recognize this rabbi as a legitimate posek. NEXT?”

    • Steven Brizel says:

      How about this case? I met a guy and we had a consensual encounter without protection and I am pregnant. He does not want to get married etc How much is a plane ticket to NY Chicago or LA?

  13. Steven Brizel says:

    What is missing in the critique of R Bleich is a discussion of the fact that evidence of fetal development as shown by early pregnancy sonograms today is dramatically present which was very much not evident via circa 1973 sonograms While Halacha in the first 40 days does not ascribe viability to a fetus sonograms very early on well within the first trimester which was the Roe standard for viability definitely show a living and developing human being If you want to see proof of this just ask your wife or daughter when she is BShaas Tovah and they can text you sonograms throughout the duration of the pregnancy and you can see that even in early pregnancy what is dismissed by advocate of reproductive freedom is a living and developing human being It is intellectually honest and a statement if no great nuance to posit that Halacha prohibits abortion except in certain instances permitted by Poskim as opposed to either an absolute right to life or reproductive freedom

    • L.D. says:

      And so what? Because we can now see the developing fetus on a screen, the halacha changes?

    • Marty Bluke says:

      Sonograms are completely irrelevant to Halacha in this case. There is a fundamental question here, is the fetus considered a nefesh or not. According to many rishonim and acharonim it is not and the fact that we can now see that it looks like a baby doesn’t change that in any way shape or form. It’s still not a nefesh according to those rishonim and acharonim.

  14. Eliezer Shindler says:

    As many have noted, this presentation is very one sided. It omits or casually pushes aside the tzitz eliezer(first trimester abortion could be muttar). Rav Schachter’s more balanced presentation here: https://www.yutorah.org/lectures/lecture.cfm/1021843/rabbi-hershel-schachter/abortion-in-halacha/ also mentions the opinion of the Toras Chesed that abortion could even be muttar up until the beginning of the 9th month under certain circumstances. He then says he would have no qualms about telling a couple to follow the meikil opinion where he felt it appropriate

    • Steven Brizel says:

      Blue states now will be abortion sanctuaries in addition to high taxes and regulations and locales of high crime and sanctuaries for illegal immigrants. We css ask expect that many woke corporations will subsidize all associated medical expenses travel and other expenses

  15. David Glasner says:

    Rabbi Bleich: “There is a conflicting age-old principle of at least quasi-constitutional standing, viz., that the sovereign has a compelling interest in preservation of the life of each and every one of his subjects. There are no grounds to exclude unborn subjects from that interest.”
    A fetus is not a Constitutional person, and I am aware of no religious doctrine including the Catholicism (nothwithstanding R. Bleich’s affection for Catholic doctrine) is the destruction of a fetus murder. Under Torah law, a pregrant woman sentenced to death by a court of 23 is executed despite the Biblical principle that parents are not killed on account of their children or children on account of their parents. So, as a matter of law, the fetus has no legal claim to life. If a woman has a Constitutional right not to carry her fetus to term, that right may be balanced against some general interest of the state in protecting life. Roe performed such a balancing and drew the line at the first trimester, before her right may be restricted. Maybe that wasn’t the right line, but underlying reasoning that a woman has a right to bodily autonomy that is owed Constitutional protection is certainly not illegitimate.

    R. Bleich states: “As far as non-Jews are concerned, there is not even a scintilla of controversy. Abortion is an even more grievous offense under the provisions of the Noachide Code. For non-Jews, abortion is a capital offense.”
    Bemechilat k’vod torato, this is just astonishing. Every Noahide offense is a capital offense. The City of Shechem was annihilated presumably on the basis of their complicity with the violation (not murder) of Dinah. The question is what is the nature and extent of the prohibition against abortion to which Noahides are subject. And the gemara (Sanhedrin 55a) answers that definitively :
    מי איכא מידי דלישראל לא אסר ולעובד כוכבים אסר?
    So, under any circumstances that a Jewish woman would be entitled to get an abortion, a non-Jewish woman also be entitled, under Jewish law, to get an abortion.

  16. Steven Brizel says:

    The “certain circumstances” that RHS mentioned are a far cry from what is advocated as “reproductive freedom”

    • Marty Bluke says:

      You are missing the point. In red states the abortions that Rav Shachter thinks are permitted will be illegal.

      • Steven Brizel says:

        It remains to be seen whether all of the red states will adopt a 100% right to life standard with no exceptions whatsoever. It is by no means impossible to travel from a red to state to a blue state for such a procedure especially if the blue states are making the procedure almost free of charge with numerous incentives being made available.

  17. joe socher says:

    Most of these discussions are ignoring the point of the (tentative) overruling of Roe. As a question of constitutional jurisprudence do the political branches have the right to define the appropriate parameters through the democratic political process or do we leave all such decisions to ivy-league educated judges.
    That’s a question about which rabbis have no special insight or expertise.
    On the question of what the law should actually be, it’s hard to believe that the ratzon Hashem is that bnei Noach should legally allow that which is all agree is assur, i.e., abortion on demand (or its near equivalent). Should we not support a move to bring the laws of the country closer to that required by 7 mitzvos?
    It is true that there are some extreme abolishonists who would forbid abortion in all circumstances without exception for the life of the mother, but there is no political support for such a position and it is unlikely to become law. If that becomes a real risk then we should oppose it. 98% of the world allows abortion when the life of the mother is danger.
    The polling in the US, however, shows widespread support for a moderate approach which up until now has not been allowed by Roe and Casey – abortion forbidden in most circumstances after a certain point in pregnancy with exceptions.
    This is also the rule in most European countries and I have never heard that Orthodox Jews have supported repeal of those laws. E.g., Switzerland (12 weeks); France (14 weeks; later only if need certified by 2 drs); Germany (complicated, but basically illegal after 1st trimester with exceptions).
    There are plenty of frum Jews in France/Switzerland/Germany – have they had trouble having abortions when halachicly allowed?

    • Bob Miller says:

      The Left regards abortion as a precious sacrament that must not be tampered with whatsoever. Have the holy hair-splitters over here ever said boo about that in public? How many Orthodox Jews have somehow voted for candidates with the most extreme pro-abortion positions imaginable? Think it over!

      • Raymond says:

        Just as I have long voted only for candidates who are pro-Israel, I need to also try as best as I can to vote only for those candidates who oppose most abortions.

  18. Raphi says:

    The issue of medically indicated (including mental health) abortion in MHO is the prime example of the need for personal pesak and not blanket heterveissur. I would be interested in Rabbi Bleich’s opinion on gun control where there is a definite issur of aiding murderers considering the thousands of murders in the USA every year which is worse than most countries with some gun control.

  19. Marty Bluke says:

    This is a very one sided presentation. There are many poskim (perhaps the majority) who hold that abortion is not under the prohibition of killing and therefore permit abortions in various circumstances that would be outlawed in many states. For a more nuanced presentation please listen to the Headlines podcast where he provides a very comprehensive review of the different opinions.

  20. Tal Benschar says:

    Some thoughts and reactions:

    1. The law in the United States will never exactly mirror halakha, at least before yemos ha mashiach. So no matter what, halakha in this country must accommodate itself to a non-halakhic system.

    And, accordingly, whatever public policy is adopted in any state or in the United States, there will always be some individual case where the two deviate, and some of those cases will cause difficulties for observant people. That’s the nature of golus.

    2. There is a strong basis in halakha to consider abortion homicide. The Rambam, H. Melachim 9:4, states that a Ben Noach who commits abortion is chayyav misa. And he puts that together with someone who kills tereifa or by gramma.

    בֶּן נֹחַ שֶׁהָרַג נֶפֶשׁ אֲפִלּוּ עֵבָּר בִּמְעֵי אִמּוֹ נֶהֱרָג עָלָיו. וְכֵן אִם הָרַג טְרֵפָה אוֹ שֶׁכְּפָתוֹ וּנְתָנוֹ לִפְנֵי אֲרִי אוֹ שֶׁהִנִּיחוֹ בָּרָעָב עַד שֶׁמֵּת. הוֹאִיל וְהֵמִית מִכָּל מָקוֹם נֶהֱרָג. וְכֵן אִם הָרַג רוֹדֵף שֶׁיָּכוֹל לְהַצִּילוֹ בְּאֶחָד מֵאֵיבָרָיו נֶהֱרָג עָלָיו. מַה שֶּׁאֵין כֵּן בְּיִשְׂרָאֵל:

    The most straightforward reading is that all of these are a form of shefichus damim, for which a Ben Noach is chayyav misa. (For a Jew, you need an act of retzicha, which is why they are pattur.)

    Shefichas damim is a severe aveirah for both Jews and non-Jews, indeed it is yehareg v’al yaavor.

    In addition to the opinions already cited here, R. Aharon Lichtenstein, in his testimony before a Knesset committee, stated he considered abortion to be homicide. https://www.torahmusings.com/2022/05/rav-lichtenstein-on-abortion/

    3. Halakha does mandate abortion in extreme circumstances, and some poskim permit it in a few more. But these are very rare. The whole machlokes is whether it is permitted in rare circumstances, or very rare circumstances. No one permits abortion on demand for no reason, and every poseik would consider such to be a severe sin.

    4. There is a popular argument, which some reflect here, that because abortion restrictions might disallow abortions where halakha permits or even mandates abortion, we should support abortion on demand. IMO, this is a morally bankrupt position, because it assumes there is no costs to the abortion-on-demand position.

    5. First of all, there is a tacit assumption that only non-Jews in America avail themselves of abortion when not halakhically permitted. That is sheer nonsense. There have been over 60 million abortions since Roe v. Wade, and if anyone thinks that does not include thousands of Jews, at the very least, you are naïve in the extreme.

    6. Second, the non-Jewish babies are also b’Tzelem Elokim. The notion that we should be happy that millions (!) of non-Jewish lives may be snuffed out at will, so we can preserve the option in a rare case of a halakhically permitted abortion, is morally bankrupt. And, contra Natan Slifkin, it is that position that encourages anti-semitism.

    7. As anyone with even a passing familiarity of the law knows, overturning Roe v. Wade will merely return the issue to the states, not outlaw abortion. What the states will do, we don’t know. Notably, the Mississippi law that is before the Supreme Court allows abortion up to 15 weeks. And after that, abortion is allowed for a medical emergency or severe fetal abnormality. I have a hard time imagining an abortion that halakha would permit, that would not be permitted under this law. Of course, states may do different things in the wake of a decision overturning Roe. But at this point, that is speculation.

    Let me reiterate. The position that Orthodox should support abortion on demand so that in the rare case, abortion allowed by halakha can proceed unimpeded, is morally bankrupt, as that position supports millions of acts of shefichas damim. We don’t know what the legal landscape will look like if Roe is overturned. But the chances of still being able to obtain an halakhically permitted abortion in one way or another are high.

    • Bob Miller says:

      Right to the point! I’m glad logic is still used in our world.

    • Raymond says:

      To my way of thinking at least, any person with a beating heart should consider the overturning of Roe v Wade to be just the first step in the process of eventually outlawing almost all abortions. That is, if we hope to honestly call ourselves a truly moral society.

    • Marty Bluke says:

      I don’t think anyone here is advocating abortion on demand. We are pointing out that there are halachic implications to the pro life position. The question is as a small religious minority do we have an obligation to speak out on this issue and is it in our best interests to do so. For example, this may lead to a backlash against religious rights.
      Regarding Halacha, while the Rambam seems to hold that abortion is some form of murder many rishonim based on sources disagree. For example the Mishna in Arachin 7a says that you execute a pregnant woman killing the fetus, see Rashi there. If killing the fetus was some form of murder how can you kill the fetus along with the mother? Similarly the Maharit says that the Halacha of dmei vlados shows that the fetus is simply property not a life. My point is that this is a major dispute among rishonim and acharonim and therefore to only cite the Rambams position is misleading.

      • Not misleading at all in a brief note. We’re talking safek retzicha here. By conventional protocols of psak, we would ordinarily be machmir in what boils down to Rambam vs. Rashi. That is the opinion of R Shlomo Zalman, Rav Soloveitchik, R Hershel Schachter. It therefore is totally suitable for a statement that doesn’t aim to discuss halachic nuance, but to make a point that the ikkar ha-din here points to the overturn of Roe v Wade is something that will potentially cut deeply into the number of acts of retzichah being committed. Yes, all the above also concur that there are other shitos to rely upon b’shaas ha-dechak. But those shitos are kulos, and not where the discussion starts.

      • Nachum says:

        Were there no Orthodox Jews in the United States before 1973? However did they manage?

      • Steven Brizel says:

        Marty Bluke wrrote in part:
        “The question is as a small religious minority do we have an obligation to speak out on this issue and is it in our best interests to do so”

        Many Gentile right to life advocates both online and in real life claim that the only Jewish communal figures and organizations that they encounter support the agenda of “reproductive freedom” . The same advocates respond very favorably to the nuanced Halachic view that the Halacha bans abortions except in instances of physical and emotional harm to the mother, as opposed to the purely right to life argument or the “reproductive rights” agenda . When you tell a Gentile that intellectually honest fact, that increases, rather than decreases Kavod Shamayim, in the secular world . Such a position can be posited if you are secure in your beliefs , aware of the variouis views set forth in prior posts here . That will allow you to present many aspects of bedrock Jewish philosophy and Halacha and many other similar issues, as well as show that Halacha has relevance to issues that are happening right now.

      • David Ohsie says:

        Rabbi Adlerstein, there are other Acharonim that have another view and they are also taking into account all of the Rishonim. They also know we are dealing with issue that some would say involve Retzichah. I’m not sure how that justifies simply dismissing and not naming them. Your view is that they are kulos. Their view is that it M’Ikar Hadin. If you want to argue that other Poskim are actually permitting murder and are completely mistaken (basically unqualified to be be possum), that requires an argument of it’s own and also doesn’t really jibe with every relying on them in any circumstance. No halachic shitah allows murder someone to avoid carrying a child of rape to term. To state it a little differently: you and Rabbi Bleich are not the arbiters of who someone else accepts as their Poseik. Kal V’chomer your judgement should not be cemented in American law.

      • WFB says:

        Rashi in ערכין is actually a raayah in the opposite direction. Rashi holds that the only reason we can kill the עובר at all is because the גמר דין of the mother is חל on the עובר as well, so long as the גמר דין took place before ישבה על המשבר. Likewise, we see Rashi’s view is that killing an עובר is killing a נפש from Rashi in Yevamos 42a, ד”ה ה”נ חייס עלויה וז”ל שאין אדם מתכוין להרוג הנפש. Thus when Rashi in Sanhedrin 72b says דכל זמן שלא יצא לאויר העולם לאו נפש הוא, he means only that it is not a nefesh to be chayav misah, as the Chavos Yair and R. Moshe explain.

    • YS says:

      Very very well said.

      It’s possible to be turned off by Rabbi Bleich’s approach (I sure am) and to still recognize, as Rav Lichtenstein does, that while Halacha may not be as stringent as Christianity with regard to abortion, it does have a very negative view of the taking of fetal life.

      This is something that seems to be almost entirely ignored by liberal-leaning Orthodox Jews, who seem compelled to take up the partisan position of the pro-choicers in the U.S. The presumably large numbers of halachically problematic deaths is almost ignored.

      Is it really SO self-evident that making it much harder to perform halachically-permitted or even halachically-mandated abortions is so much worse than making it easy to obtain halachically-prohibited ones? People can disagree on this point and Rabbi Bleich’s position is offensive, but the halachic position on abortion does NOT align with pro-choice.

      • Marty Bluke says:

        I certainly agree that the halachic position is much closer to pro life then pro choice. However, the Halacha does not accept the Christian pro life position either. So the question here really is what should we as a community do? And we need to think long and hard about this and how this could affect religious liberty especially if we take a side on this question. We also have think about what is out responsibility vis a vis the non Jewish society that we live in as a small minority.

      • Bob Miller says:

        “who seem compelled” is an interesting phrase that testifies to the power of bad political habits, creatively rationalized. But the Torah is pro-choice in the sense of commanding us to make good choices regardless.

    • Nachum says:

      Very well put!

    • ben dov says:

      “There is a popular argument, which some reflect here, that because abortion restrictions might disallow abortions where halakha permits or even mandates abortion, we should support abortion on demand. IMO, this is a morally bankrupt position, because it assumes there is no costs to the abortion-on-demand position.”

      There is a case not to support abortion on demand to protect kulos in halacha. I wonder if the same applies to abortion for pikuach nefesh, which is more serious.

  21. mb says:

    I wonder how many of those espousing the quasi maximalist Catholic view of abortion know on what the Christian view was based? Our good friend Philo Judaeus Ha Kohen on the Septuagint’s translation Exodus 21:ad loc. That translation was approximately 250 BCE. “Ason” is “formed”. Philo writing his commentary 20-30 CE (yes he was a contemporary of Hillel and the historical Jesus, of which Philo never mentioned), wrote a beautiful midrashic explanation using the potter molding His clay in the womb analogy. Hence Christianity and feticide is murder.”Formed” was rejected in Rabbinics in favour of “harmed” hence property damage and not murder.Clearly Philo had a tradition. Was it the mainstream view? Was the Rabbinic opinion a later exegesis? Beyond my pay grade.

    • Nachum says:

      Well, it’s certainly been argued- most notably by the late Dr. Naomi Cohen- that indeed Philo has a place in Jewish tradition.

      By the way, even if all the New Testament claims about Jesus are true, it’s highly likely that Philo, living in Egypt and dying only about fifteen years later, would never have heard of him. Josephus, who lived decades later in Israel, seems never to mention him, or does so at most in passing. (The mentions of Jesus in Josephus are probably later Christian insertions.)

    • Bob Miller says:

      Which abortion categories offend you so much that you’d want specifically those to be banned?

  22. David Glasner says:

    For which violation of a Noahide law, is a Gentile, under Torah law, not punishable by death? If causing the death of a fetus is murder, how is it that a pregrant woman, under Torah law, must be executed?

    • Nachum says:

      Well, these days it’s seldom the woman causing the death, for starters.

      • David Glasner says:

        The execution of the pregnant woman causes the death of the innocent. How is that allowed if the fetus is a person under Jewish law?

  23. Marty Bluke says:

    Rabbi Adlerstein with all due respect the shita of Rashi and others and the Tzitz Eliezer is not a kula. It is well established psak. Rav Dovid Cohen, a prominent contemporary posek said so in the headlines podcast that I referenced in an earlier comment. Additionally, while we Jews have a din of sefeka doraysa lchumra it is not at all clear that this din applies to non-Jews. If sefeka doraysa lchumra is only drabbanan then it clearly would not apply to non-Jews and even if it is min hatorah it does t necessarily apply to non-Jews.

    • What is that supposed to mean? What does “well established psak” have to do with whether or not something is a chumra (many well-established piskei halacha are chumros), a kula (ditto), or ikar ha-din. What would you call eating chadash in chutz l’aretz? Pretty well-established. Arguably, a kula. Rav Dovid Cohen shlit”a was my go-to person for 40 years of living in LA before I made aliyah. I would not have survived without him – both in situations where I needed real guidance for myself, as well as referring difficult halachic questions that came my way from others. He is a “player.” That does not mean that some of his eminently-reliable psakim are not kulos

  24. Steven Brizel says:

    Marty Bluke wrote:
    “However, the Halacha does not accept the Christian pro life position either. So the question here really is what should we as a community do? And we need to think long and hard about this and how this could affect religious liberty especially if we take a side on this question”

    One can argue that regardless of the nuanced differences that I mentioned, our natural allies on many issues are cultural and political conservatives. This sector of America view their families , traditional moral values, and the mental health of adolescents as being threatened and besieged by Marxist brainwashing in the areas of critical race theory, junk science on climate change and sexual permissiveness in general, especially by the advocates of the LGBT agenda which uses public schools for grooming of young children and the advocates of gender fluidity as opposed to those who support tax payers money being spent on such educationally dubious subjects.

    Like it or not , the primary threat of anti Semitism, despite what you read about Buffalo, stems from the woke left which controls social media , academia and far too many corporate boards that have forgotten that their sole purpose is to maximize profit as opposed to being woke all the time on all issues. CR Sacks ZL was a powerful advocate of traditional moral values and marriage -The American Torah committed family and community can serve as a role model in many different ways in how to resist the aforementioned Marxist brainwashing that is under way in America’s educational institutions and corporate boards

  25. Mark says:

    On the subject of shefichus damim, related to this post, there’s an individual who had the unmitigated chutzpah to publicly quote what someone else told him is a negative trait of a world-class Talmid Chacham. Disgusting.

  26. Steven Brizel says:

    I think that the deep disagreement on this issue presents a unique opportunity for the Torah committed community to state why it supports neither only a right to life nor unrestricted “reproductive freedom” and such opportunity would be a tremendous Kiddush HaShem . If you interact with both right to lifers and secular Jews they are woefully ignorant of our perspective which really is opposition to abortion unless the physical or emotional well being of the mother is threatened as determined by a qualified rabbi What we are discussing in terms of the views of the Poskim are their particular views in such instances which demonstrates the range of opinions thus demonstrating Elu V Elu Divrei Elokim Chaim in a very important way

  27. Steven Brizel says:

    Take a look at who sponsored this awful piece of anti Semitic bilehttps://thedailyscroll.substack.com/p/what-happened-today-may-18-2022?s=r It was the Squad, and their allies, who the so called moderate Democrats are afraid of

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