Analysis: Jewish community has harsh criticism for Alabama abortion ban

Alabama Governor Kay Ivey (SJL file)

Three weeks after the Alabama Legislature came under fire for considering an anti-abortion bill that referenced the Holocaust, criticism is pouring in from most of the Jewish community now that the nation’s most restrictive abortion bill has passed and been signed by Governor Kay Ivey.

Since a 2015 Pew study showed 83 percent of American Jews say abortion should be legal in all or most cases, that isn’t a surprise. Much of the criticism stems from how Jewish law permits and even mandates abortion under certain circumstances, conditions that are illegal under the new Alabama statute. That makes the new law a violation of religious freedom.

The Alabama law makes it a felony to perform an abortion, with a 10- to 99-year prison term. Attempting an abortion is a class C felony. There is an exception for a “serious health risk” to “the unborn child’s mother,” but no exception for cases rape and incest.

The bill adds that “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.”

The bill’s intent is to directly challenge Roe v. Wade, the 1972 Supreme Court decision that said states can not restrict abortion up to the point of viability, on the idea of the “personhood” of the unborn. Sponsors said that including the rape and incest exemptions would weaken the law and make it less likely to reach the Supreme Court.

Even Pat Robertson, well known for his opposition to abortion, said on the “700 Club” that Alabama’s law “has gone too far” and “I don’t think that’s the case that I’d want to bring to the Supreme Court.”

The Alabama bill also calls miscarriages into question, with some legislators saying the burden of proof would be on prosecutors to prove a woman had an abortion and not a miscarriage — indicating such legal cases would be possible.

Many states, including Mississippi, Georgia and Louisiana, have adopted or are considering “heartbeat bills” that would ban abortion after the detection of a fetal heartbeat, roughly six weeks into a pregnancy.

Last November, 59 percent of Alabama voters approved a constitutional amendment stating Alabama recognizes the rights of the “unborn.”

The Alabama bill is set to take effect six months after the May 15 signing, but the American Civil Liberties Union has already vowed to sue for the courts to block implementation. According to the ACLU, “this means abortion is still legal in Alabama and will stay legal for the foreseeable future.” An envisioned path to the Supreme Court can take a few years.

As previous Alabama laws aimed at restricting abortion have been struck down in the courts, the state has wound up paying the legal fees incurred by the ACLU and Planned Parenthood — at least $1.7 million for the 2016 law requiring abortion providers to have hospital admitting privileges.

Jewish Responses

The Rabbinical Assembly, the national organization of Conservative rabbis, issued a statement that “emphatically opposes” the recent anti-abortion laws, and said the RA is “deeply troubled by the enacting of today’s abortion law in Alabama and believes it should and will be struck down by federal courts.”

Citing “relevant biblical and rabbinic sources as well as teshuvot – modern rabbinic responsas,” the RA statement reiterates that Judaism cherishes the sanctity of life, “but does not believe that personhood and human rights begin with conception, but rather with birth as indicated by Exodus 21:22-23.”

The RA statement says “Denying a woman and her family full access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices, and abortions, among others, on religious grounds, deprives women of their Constitutional right to religious freedom.”

Rabbi Jonathan Miller, rabbi emeritus of Birmingham’s Temple Emanu-El, said Judaism regards the fetus as of value, but not yet a human being. “The humanity, the soul if you will, only enters the body when the fetus takes its first breath and then becomes human,” he said.” Likewise, death is defined when the human soul leaves the body when breathing stops.”

“An unborn child which threatens the health of the mother is consider a pursuer, a stalker, and Jewish law favors the health of the mother over the developing child in the womb,” Miller said.

Rabbi Susan Silverman of Jerusalem, who is active with Women of the Wall, urged Alabama Jews to “sue the state on behalf of religious freedom: a pregnancy that threatens the health of the mother is, in our religious laws, a ‘rodef’ a pursuer threatening the pregnant woman and abortion is not just allowed but obligated.”

Rashi, the great Jewish commentator of the 12th century, said the fetus is not considered a person, and the Talmud says a fetus is “as the thigh of its mother,” part of her body, and completely dependent on her. The Talmud also states that until 40 days — roughly the six-week period cited in “heartbeat bills” — the fetus is regarded as “mere water.”

Veteran journalist and author Debra Nussbaum Cohen said in a Ha’Aretz opinion piece that the Alabama bill enshrines into law the Christian concept of when life begins. They “reflects the institutionalization of Christian hegemony in America. They infringe on my religious freedom as a Jew,” she said.

The most-often precedent comes from Exodus, where it states that pushing a pregnant woman so that she miscarries brings on monetary compensation, but any injury or death beyond that follows the life-for-life principle.

Also, if a pregnant woman converts to Judaism, there is no need for a separate procedure for the conversion of the unborn child.

In the Biblical census, babies under the age of 30 days were not counted, and if an infant dies before the age of 30 days, the traditional Jewish mourning rituals do not take place, though in modern times, they are often done out of compassion for the family.

Another religious divide comes in the notion of the soul. In Judaism, there is disagreement as to the timing of ensoulment, with a range of views from conception to birth. It is regarded as a disagreement that will remain unsettled until the messiah arrives to settle the argument.

Also, Judaism teaches that the soul is pure and people are born as a clean slate regarding sin. Conversely, many Christian teachings hold that the soul is given at conception, and because of Original Sin, all souls are sinful and must be saved. That concept does not exist in Judaism.

Many Jewish women choose to avoid Catholic hospitals for giving birth because of the difference in religious approach — that in case of complications, the Ethical and Religious Directives for Catholic Health Care directs priority be given to rescuing the unborn, while Judaism holds the mother’s well-being should be the priority.

Though Judaism is more permissive regarding abortion, often with a wide interpretation of the health of the mother, none of the denominations approve of abortion on demand merely for convenience, but generally feel that each case should be decided individually, not by a blanket government mandate.

In January, when New York liberalized its abortion laws, Orthodox groups issued statements of opposition — which drew criticism from many Orthodox women. The Rabbinical Council of America stated abortion is permitted only in cases of danger to the mother’s health, and “Most authorities consider feticide an act of murder; others deem it an act akin to the murder of potential life… There is no sanction to permit the abortion of a healthy fetus when the mother’s life is not endangered.”

Agudath Israel of America stated that “Jewish tradition teaches that a human fetus has status and dignity, and that abortion is prohibited in the vast majority of pregnancies.”

Both groups, though, said there are circumstances where abortion is permissible and their views are not as absolute as many Christian groups.

Historically, the Orthodox Union has stayed out of legal arguments because of the complexity of the issue.

The National Council of Jewish Women stated that the Alabama ban is “blatantly unconstitutional and unconscionable,” and also called comparisons to the Holocaust “an outrageous and disgusting offense.”

Lori Weinstein, chief executive officer of Jewish Women International, said “this year’s spate of attacks on women’s rights in Mississippi, Kentucky, Ohio, Georgia and now Alabama is nothing more than a ploy to dehumanize women and strip them of bodily autonomy.”

The Alabama bill is the “latest, most egregious encroachment on women’s constitutionally protected reproductive freedom.”

Weinstein added that the Alabama bill could result in doctors who perform abortions serving more prison time than men who commit rape and incest.

The Women’s Rabbinic Network also reiterated that the life of the woman takes precedence, and a woman has the right to choose what happens to her body. “We reject sweeping legislation which attempts to regulate every situation without consideration of each individual circumstance. It is the Jewish way to use the wisdom of tradition to guide decisions in individual circumstances. We trust each woman to draw on her own tradition and make the best decision for herself with the people around her, her doctors, her spiritual leaders, and her own sensibilities in each unique case.”

Miller said the issue goes beyond abortion. “We should also be concerned when the government determines what doctors are permitted to do in treating their patients. Pro-choice is not only about the woman having ultimate agency over her body, but also about the ability of physicians to exercise medical options that should be available.”

He noted that some European countries ban infant and child circumcision, which is part of Jewish practice. “When government plays such a heavy hand in the lives of people who are guaranteed the right to practice religion freely, it can restrict the ability of Jews to live fully according to our tradition and the way we understand what God demands of us.”

Abortion in Israel

In comparison, Israel has rather liberal abortion laws, and a much lower abortion rate than the U.S., though both have fallen dramatically in recent years.

In Israel, a woman can seek an abortion if under the age of 17 or over 40; if not married or the pregnancy is not from her marriage; cases of rape or incest; danger to the woman’s life, including physical or emotional damage; or in cases of severe physical or mental abnormality. Minors need not seek parental permission.

A woman seeking an abortion in Israel goes before a three-person panel that includes an OB-GYN, an additional medical specialist and a social worker. There is no mandate for a religious authority or a government representative to be present.

The panels approve roughly 98 percent of cases.

In 2016, there were just under 18,000 abortions in Israel, with 188,000 live births, for a ratio of 99 abortions per 1,000 live births. In the U.S., abortion rates hit a 10-year low in 2015, the most recent statistics available, with 188 abortions per 1,000 live births.

In Israel, about 85 percent of abortions were performed by the 13th week, and only 300 were after the 23rd week, a procedure that requires a special committee’s authorization.

About half of the abortions fell under the rape, incest or extramarital affairs category. Twenty percent were for the health of the mother, 20 percent were due to physical or mental defects and 10 percent were because of age.