The Demise of Roe v. Wade: A Letter to Rabbi Michael Broyde
Dear Reb Michael,
Congratulations on the excellent piece in Lehrhaus. It’s perhaps the best piece that I have seen on the subject. Not that I agree with everything you wrote, but that is not so unusual. I do happen to agree with the major thrust of the piece, in regard to what our public policy ought to be.
We disagree quite a bit, often in public fora. We remain respectful, cordial, and more – we’re actually friends, and get together socially. You often send me your articles in advance for criticism, and I usually have some to dish out. (The fact of our friendship despite our differences may be more important than anything else in this exchange!)
The abortion essay was no different. I saw it before Lehrhaus did, because you sent it to me for comment. So I know that you did not time its publication for the day after the SCOTUS decision, unless you are a navi, besides being a chacham. Nonetheless, the serendipity of the two events is going to lead some readers into thinking that it is your response to the reversal of Roe v. Wade, even if it was not written for that purpose.
For what it’s worth, I think that your essay omitted crucial elements in guiding people towards an intelligent position regarding abortion and its jurisprudential fortunes. I believe that you minimized the responsibility of Torah Jews to make Hashem’s will known to anyone listening. I also believe that you ignored affect – what Jews are supposed to feel when they witness departure from His dictates, and what should be going on internally when they see people moving closer to the way Hashem wants them to live.
Here is what you wrote:
Even though Halakhah sees no technical obligation in most situations for Jews to ensure that Noahides obey their laws, doing so might still be morally laudatory. Surely God smiles on those who seek to help others obey God’s will.
A footnote takes us to two sources – a single citation from the Hirsch Chumash (although the Jewish mission in making His will known to all inhabitants of the world is central to his hashkafah!), and one from the Netziv. And then you immediately dilute their effect by writing “Notably, no legal sources discuss this idea as far as I can determine.”
There you have it. If you can’t pin it down to specific and explicit halachic sources, then it just isn’t worth all that much.
So here is my fervent request to you, my friend:
STOP BEING SUCH A DARN LITVAK!!!!
No, I don’t mean to enmesh us in a discussion of the old question of whether or not there is a Torah ethic independent of halacha. (Readers can start with the contributions of Rav Aharon Lichtenstein, zt”l, and yib’l Rav Dovid Bleich shlit”a.) The point here is a different one, perhaps best characterized by an oft-repeated teaching of Rav Soloveitchik, zt”l. He said that we have not one mesorah, but three. The one that gets the most attention is the mesorah of deed – how we are to behave and act. We’ve put a huge amount of energy in fleshing out the requirements of halacha, and making them known to people. There is also a mesorah of thought: what ideas should provide the conceptual framework for the Torah’s practitioners. Which ideas are essential, which are volitional – and which are dangerous and wrong. This mesorah is there, but a bit harder to access, as it is not as well known, and not as sharply defined.
Finally, there is the mesorah that is the hardest one to determine, although it is most definitely there. It is the mesorah of how we ought to feel and emote. Assuredly it exists, although many are unaware of that fact.
It is there that we find that Hashem is not indifferent to the sins of non-Jews, or to their rejecting Him. There we find that those who love Him will feel the “tzaar of the Shechinah” when people trifle with His honor.
Your essay shines a light on the path forward – including the hard work ahead in assuring that abortions will be available to those who halachically should be availing themselves of them. It fails, however, to mention that the Orthodox reaction to the downfall of Roe v. Wade should include a celebration of the triumph of those who find significance in the potential life of a fetus against those who argue that it is no one’s business but the mother’s.
You will correctly argue that the Court did not relate to that issue at all. But that has been what the struggle in the hearts of Americans has been about for decades, not the availability of an abortion to a pregnant woman whose life is threatened by the fetus she carries. (According to a poll conducted by the Guttmacher Institute in 2004, fewer than 7.5% of those who aborted did so for reasons of rape, fetal health issues, or the physical well-being of the mother.)
In 1969, a pregnant Norma McCorvey, was recruited by lawyers seeking a plaintiff with standing to challenge Texas abortion restrictions. They would turn her into the “Jane Roe” of Roe v. Wade. They asked her what she thought of abortion, and she said she didn’t know. They convinced her by telling her, “It’s just a piece of tissue. You just missed your period.” McCorvey was not raped, nor in any danger at all. She just didn’t want to carry to term. Because the case dragged on, she never got the abortion she sought. She gave up her daughter for adoption, as she did with the first two children she birthed.
Sixty million abortions later, it has never been about the small number of women whose abortions would be sanctioned halachically, at least those beyond the 40 day benchmark. It has been my-body-my-choice, and no piece of tissue is going to get in the way with my career choice or my convenience. It has been about steadfastly ignoring the moral responsibility towards a life-in-formation. It has been about turning abortion into a form of contraception. (According to the CDC in 2019, unmarried women accounted for 86% of all abortions.) Having the right to express their sexuality any way they choose is an entitlement that trumps any moral reservations.
All of these attitudes are repugnant to HKBH. How can we not be happy about a potential reversal of some of the damage? How can we not share that happiness with the world – especially when there are those proclaiming that Judaism celebrates abortions? How can we not acknowledge that the SCOTUS decision will strengthen the hand of the half of Americans who at least want to engage the ethical issues, rather than cede them to the autonomy choir? How can we not be hopeful that some of the states will come up with laws that cut down on what the Torah considers to be a capital crime for non-Jews?
But what if…? What about the Jewish women who will be legitimately advised by poskim to terminate a pregnancy, and face obstacles in draconian state laws? Of course that is a concern, and there is no question that we have our work cut out for us. Chazal remind us that every child who is born is going to die one day. Nonetheless, that reality does not dull the simcha surrounding the birth. There will be time to mourn much later. Similarly, the challenge we will face in future months should not drown out the loud approval we should be expressing at the moment. A cavalier attitude to what Roe v. Wade’s demise means does not speak well of our belief in the rectitude of Hashem’s Torah. In other words, a bit less Litvishe reserve might be called for.
Interestingly, Reb Michael, you show in your essay that Agudah’s policies in the past have always opted for maximizing religious freedoms, even when those freedoms would be misused by others. They have taken exactly the course you advocate. That seems accurate. But you should now observe that the same Agudah – not having changed its policy in the slightest – issued a strong statement of approval of the Supreme Court decision. It struck a perfect balance in its release. It referenced the concerns about women who should be terminating their pregnancies, but clearly stated that those situations are rare. It explained why Agudah welcomed the decision:
We do not seek to impose our religious beliefs on the broader American society. We are of the view, however, that society, through its laws, should promote a social ethic that affirms the supreme value of life. Allowing abortion on demand, in contrast, promotes a social ethic that devalues life.
Sforno (Shemos 18:9) is critical of Yisro for his celebrating the happiness of the Bnei Yisrael in their escape from Egypt, “like one who takes pity on the tears of the oppressed.” He missed the opportunity to do what was more correct: to express joy over the destruction of Egypt, “as is appropriate for one who is zealous regarding the honor of his Creator.” We should not make the same mistake.
Hardly. For the majority of women who terminate a pregnancy, it is the first time.
And therefore? They will be more careful next time?
It has developed into the back-up arrow in the quiver of options for people to do as they please, without having to think of consequences to potential life.
I thought that R Broyde explicated the different views of the Gdolei HaPiskin clearly and in an intellectually honest manner and that the OU statement set that fact out very cogently in a very nuanced position. I disagree with the views of both right to lifers and those who support abortion in demand . It is tragically true that right to lifers and the advocates of unlimited abortion share a common denominator of a lack of a commitment to and awareness of what Torah SheBaal Peh and Halacha say on this issue which is not one paragraph in Kitzur SA.We err as a community when we issue statements that speak for our community and fail to clearly set forth the nuanced nature of the Halacha and the existence of different views by Gdolei HaPoskim
Sometimes- as in the case of sixty million dead babies- nuance is not what’s called for.
There is a substantial practical difference ( Nafka Minah LHalacha) between an Issur Retzhikah ( Yehareg Val Yaavor)and an Issur Chovel -failing to discuss the existence of the same in this context is not just a lack of nuance, but more critically intellectually dishonest misrepresenting that there is only one view expressed by the Gdolei HaPoskim and creating a Ziuf HaTorah as described by Yam Shel Shlomoh in BK as set forth by RHS Bikvei HaTzon.
You know, I sometimes hear Catholics complain about Jesuits. After seeing a response like this, I begin to see their problem.
The mitzvah of Talmud Torah is clearly understood as a highly nuanced matter, requiring the abilility to be Mdameh Milsa LMilsa as opposed to an endeavor rooted in the logic or the reaction of the mob on the street,. This issue is no different
I agree with your statement.
Fantastic piece. Yasher Koach Rabbi Adlerstein.
+1. Beautifully written and expressed.
Thank you, Rabbi Aderstein.
Since Dobbs was leaked, I’ve been exposed to what Jewish supporters of Roe think is a slam-dunk argument in its favor, and I really don’t understand why it’s such a good argument. Basically, they say that as observant Jews, we need Roe to allow Jewish women to get halachically-permitted or halachically-required abortions when they need them. Without Roe, the states can prohibit these abortions, so we need Roe. I’ve heard this from a bunch of different people and it seems to be an article of faith.
With all due respect, I really have a hard time understanding why this is more than just one point, that needs to taken into account in conjunction with other points and arguments.
1 – What if it turns out that there will only be 25 women who need such Halachically-required abortions every year in states that prohibit them and where the women can’t easily cross state lines to get the abortion? And what if 15,000 non-Halachically-sanctioned abortions will likely be performed due to the complete absence of restrictions on abortion? Why is it then so self-evident that we need constitutional protection for abortions? Maybe my numbers are way off, but they (and other arguments) need to be part of the discussion. Couldn’t you just as easily argue that we need to NOT have Roe because we need to be able to outlaw non-halachically-permitted abortions?
2 – Do we always insist on constitution-level protection for any religious practice, completely disregarding the cost? Maybe we should demand constitutional protection against incarceration because men have a right to go to the mikva every Friday? We don’t demand this b/c we recognize that there are competing values and needs. How is abortion and the life of the fetus any different?
These laws are no small matter. They’re much stricter than most frum people realize, and overturning them will need to overcome a discourse on this issue that has become vindictive and punitive. In the meantime, thousands of women we think can and should get abortions will suffer; some of them will probably die. (And this is asides for the huge financial burden the US’s lack of a social safety net places on these mothers.)
A different chazal than the one you quoted at the end of you piece comes to mind, one that the OU statement is more reflective of:
After Bnei Yisrael were saved and the Egyptians were drowned at Yam Suf, the angels wanted to sing before Hashem, but Hashem responded: “The work of My hands are drowning in the sea and you are singing before Me?” (Sanhedrin 39b)
The angels were banned from singing shirah. We humans were not. Important difference
We do not seek to impose our religious beliefs on the broader American society. We are of the view, however, that society, through its laws, should promote a social ethic that affirms the supreme value of life.
And why should society privilege the value of life over other values (e.g. individual choice in physician assisted suicide)?
“What about the Jewish women who will be legitimately advised by poskim to terminate a pregnancy, and face obstacles in draconian state laws?”
How did religious Jews manage in America before 1973?
Answer: Every single state allowed abortions where halakha requires them. And every single state will continue to do so now.
Those of us with the proper moral attitude toward abortion make a huge mistake in even addressing this issue. It is a non-issue, a strawman invented by otherwise-Orthodox Jews who are gung-ho for abortion under any circumstances and use this to justify their position to themselves and to others.
Nachum: It may or may not be so that “every single state allowed abortions where halakha requires them>”” But it is certainly not so that every single state allowed abortions where halakha permits them.
I think Rabbi Yona Reiss got it really correct in the Jewish Press when he said:
“I think that our main concern as Jews must be that we be able to practice our religion freely. There is no right to abortion in Jewish law, but there are cases, such as when a mother’s life is in danger, when an abortion is unfortunately necessary, and there are other cases, depending upon the stage of pregnancy and the medical or psychological issue in question, when a rabbinic authority might rule that an abortion is permissible.
There are also serious financial considerations. This is not an especially urgent issue as it applies to most Jews, but it is a very important one for those with an unintended pregnancy who are poor, without other family support, and living in states where social services and access to basic health care are limited at best. Indeed, it is the limited access to proper health care in the first place which can result in dangerous or unintended pregnancies.
Every single state has a safe harbor law that allows the mom or whomever to drop off the baby at a fire station etc. That’s for the tiny number of kids who can’t get adopted. And the moms who dint take advantage oh Christian crisis pregnancy centers.
must be that we be able to practice our religion freely.
Agreed-the problem IMO is that too many in the frum community worry only about the Free Exercise Clause but don’t worry about impact of the downplaying of the Establishment Clause.
The vast majority of Jews in the US go to public school-if public school officials have the fight and ability to lead prayers-which we might consider AZ – during a time with students who are dependent on the good will of that official it certainly increases the likelihood that a Jew would feel that is beneficial to him to join the prayer on public school grounds with that official. Besides the AZ problem for Jews also increases social pressure not stick out like a sore thumb from the general population. Disaster for Jews in increasing those who will leave us.
Mycroft-there have been clubs for Jewish students operating on public school campuses as a constitutionally protected extracurricular activity for some years as per the annexed linkhttps://jsu.org/. IIRC, there was a SCOTUS decision involving similar clubs operated by Evangelicals that provided the legal imprimatur. Many members of these clubs go on NCSY’s summer programs to Israel and attend NCSY’s Yarchei Kallah and other programs that are for public school students and many become Shomrei Torah UMitzvos and attend yeshivos and seminaries in Israel . Programs like that not only reduce the social pressure but give Jewish kids the interest and desire to be proud Jews and to stick out like a sore thumb in a positive way from the lifestyles and values of their felllow students and educators who appear to be engaged in Marxist brainwashing on race, gender and climate as opposed to educating students in how to read , write and think
Thank you for this post. The debate regarding the role of Torah on the issue of abortion is very important to Christians. Torah is the source of morality for us. In Genesis 12 we are told that the Jews are chosen by G-d to be a blessing to the nations of the world. Your witness on abortion and your healthy debate on its limits matters to all of us.
There is definitely a healthy debate on this issue based on the understanding of the greatest rabbinical authorities-not on politically rooted polemics
“Every single state allowed abortions where halakha requires them. And every single state will continue to do so now.”
Is this fact or mere assertion?
And what do you mean by “Halakha”? Ray Moshe or Tzitz Eliezer?
Another question: do red states protect the halachic leniencies during the first 40 days for non-Jews?
Overall, I’m happy about overturning Roe v. Wade, but I have some concerns.
“Is this fact or mere assertion?”
It is a fact.
And what do you mean by “Halakha”? Ray Moshe or Tzitz Eliezer?
Pikuach nefesh. The US isn’t obligation to start choosing poskim.
“Another question: do red states protect the halachic leniencies during the first 40 days for non-Jews?”
That’s not a halakhic requirement. Jews will make do.
So you don’t care if a non-Jewish woman suffers more than Halacha requires her to suffer. If a pregnancy (during the first 40 days) will cause her a major physical or mental illness, that is no concern of yours. If so, we will have to agree to disagree.
I’m not advocating the right to abortion on demand or Roe v. Wade. I do advocate consistency. If we want a halachic prohibition to be the law of the land, we should also want halachic permission to be the law of the land, especially when human suffering is otherwise involved.
So I presume Michael Broyde would rather teach in a law school run by Molech-worshippers?
It’s bizarre that MB would imply that as Jews, we have no interest in non-Jews following the will of God. Whether it is practical or wise to act on that is, of course, a separate question.
There certainly seems to be a concept of lifnei eiver for non-Jews as well – there are many halachos about not engaging in certain actions that would cause/encourage them to worship avodah zarah (having them swear, etc., many more are mentioned in Tractate Avodah Zarah).
See also this fascinating related article: https://www.torahmusings.com/2016/04/children-non-jews-personal-obligations/
Weaver, if you read the original article, you would see that there is an elaborate discussion of lifnei iver. While the torah rules of lifnei iver certainly do apply to both a Jew and a Gentile, the situation of “one side of the river” violations does not all according to most halachic authorities. Shach discusses the issues you raise in great detail and with a sense of halacha lemaseh that is very important. Most poskim agree with the Shach, as I note in the above article, that there is no rabbinic lifnei iver when dealing with a gentile. This is a very important point with many halachic consequences to it.
Can a Jewish radiologist read ultrasound pictures of a fetus if the results will cause the gentile woman to have an abortion. FWIW I knew of a sheila that the radiologist asked and the answer given that since in this condition there was a non abortion action that on occasion was taken surgery in utero to try and fix the problem could read the ultrasound. Although majority would abort as a result biut some wouldn’t-note if only possible reason for reading the ultrasound would be to help get an abortion radiologist was told couldn’t do the work reading such x-rays despite that this condition was almost never found among Jews thus a gentile problem but still cant help get an abortion for non Jews
Hmmmm! let’s see. There’s approximately 1.5 million Jewish women of child bearing age in the U.S. Some of them will get pregnant in 2023 and for various reasons some of them will want/need to abort the fetus. How many of those women will ask a Posek? Or better question, how many of those women know what a Posek is? Further, there are some 80 million non Jewish women of child bearing age in the U.S. Same as above, some will have unwanted pregnancies and will have an abortion regardless of the recent SCOTUS decision and its availability. Seriously, ask yourselves, how many of those women will think “Oh no, it’s a violation of the Noachide Laws and a capital offense!” Sometime we Jews take our importance too seriously. Freedom of choice is the sine qua non of Judaism. Hopefully we make the right choice. Restricting geographic availability of an abortion is unlikely to reduce the numbers drastically, if at all.
Terrific Rabbi! You are solid gold!
Put aside the constitutional issues. Take the following 5 issues:
1. Same sex marriage.
3. Idol worship (along the lines of the Santaria sect in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,).
4. Bris milah
5. Kosher slaughter
There are 3 positions for each of these. (1) Some people oppose these practices and want to ban them. (2) Some people support these practices (or at least allowing these practices) and want them to remain legal. (3) Some people are pro-choice and think individuals should choose, regardless of whether they personally support or oppose them.
I would think we Jews would favor #3. As a religious minority in America, I would think we would be pro-choice on just about everything. If not, we might find ourselves on the wrong end of a ban on circumcision and kosher slaughter. Any opposition to particular practices should be challenge towards persuasion, rather than try to use the machinery of government to prevent people from making choices we disagree with.
If not, what is the principle that distinguishes these cases.
. Some people think that a
Let’s add a few, as long as we’re going for maximum autonomy:
1) Recreational use of crack and heroin
2) Ignoring seat-belt laws
Even Roe v. Wade did not wipe out the consideration of a State interest in the preservation of life. It just cancelled it for the potential life of the fetus
But this is all irrelevant to the single thesis I developed. Regardless of what public-policy ought to be regarding personal and religious freedoms (about which I largely agree with R Broyde), there should be some positive affect attached to the unseating of a bad legal decision that has become the sine qua non for a life-style of autonomy in disregarding issues of morality.
WADR, one can clearly argue that your examples of “maximum autonomy” by reason of the potential for harm to one’s self and others , clearly warrant adherence to secular law as well as many halachos that call on us not to place ourselves in danger voluntarily
“Indeed, it is the limited access to proper health care in the first place which can result in dangerous or unintended pregnancies.”
It’s the lack of responsible decision making on the part of the couple, in the first place, that does result in “unintended” pregnancies.
When there’s a fire and no fire engines have arrived, the bystanders who are able will pick up a bucket, hose, or extinguisher. They don’t come up with 99 fancy reasons not to help. Overall, the states where liberal Jews live just happen to be the ones with abortions aplenty. And they’ll stay that way, SCOTUS or no SCOTUS! Will liberal Orthodox Jews there now argue that, because they can agree with a teensy percentage of all possible abortions, they should continue their noteworthy silence about the rest?
“Freedom of choice is the sine qua non of Judaism”
U’bechartem b’Chaim – choosing life is the ikar, mainstay, or ….whichever Latin cliche is preferred. That can be your choice.