Days before the Supreme Court struck down Roe v. Wade and Planned Parenthood v. Casey, a Florida synagogue filed a lawsuit challenging Florida’s abortion ban on the grounds that it violates Jews’ religious freedom. Halakhah, or Jewish law, the suit argues, often permits and sometimes requires abortion if the pregnancy threatens the mother’s health. Thus, any ban infringes on Jews’ right to free exercise.
As a Jewish woman who supports unrestricted and unapologetic access to abortion, I desperately hope the plaintiffs win. At the same time, as an expert in Jewish sexual ethics—and as a feminist—I have some concerns about the religious freedom argument, both in this case and in the broader discourse on Judaism and abortion. By relying, even implicitly, on halakhic precedent to define the “Jewish position” on abortion, such arguments still place outsized authority over pregnant people in the hands of a disproportionately patriarchal structure. And by framing the “Jewish position” as straightforward and unified, they risk oversimplifying the very conversation about religion and reproduction they seek to expand.
First off: the lawsuit is correct that Jewish law not only permits but requires abortion in many circumstances. Authorities ranging from the 11th century commentator Rashi and the 12th century legalist Maimonides to the 20th century Rabbi Eliezer Waldenberg have ruled that abortion is permitted because of a pregnant person’s mental distress, and that when that person’s life is in danger, the obligation to save a life in fact requires abortion. Even in cases where abortion is prohibited, this is generally based less upon an appeal to the value of fetal life—which the tradition characterizes most strongly as a “doubtful” or “potential” soul—but rather on the grounds that, for example, one is not permitted to mutilate one’s body, which ultimately belongs to God.
Yet it is precisely this litany of overwhelmingly male voices spilling gallons of ink over the details of conception, pregnancy, and birth, and serving as gatekeepers for the decisions of women and others who can get pregnant regarding their reproduction, that makes this argument risky. Indeed, this legacy directly influences systems in which access to abortion is gatekept, even if the abortions themselves tend to be ultimately permitted.
While Israel, for example, permits abortion in many cases, it requires anyone seeking an abortion to justify their decision before a committee—a system that, as Jewish Studies professor Michal Raucher reminds us, “reflects the belief that women cannot or should not make this decision on their own,” even if it approves most requests. And even in the US, as Raucher also reminds us, this gatekeeping logic can be just as easily wielded to argue for the restriction of abortion as it can for permitting it.
Highlighting these traditions also emphasizes the ways Jewish views on abortion have differed from how the Christian Right has defined “religious” values and, in doing so, attempts to reclaim the domain of “religion” in public discourse. It asks us to have a conversation about religion and reproduction on a broader scale.
This conversation is both necessary and overdue. However, if it is to avoid essentializing religious traditions and, just as importantly, avoid erasing internal movements for accountability, justice, and liberation, it must recognize complexity within those traditions as well as between them. As I’ve already noted, the same sources that liberal Jews deploy to argue for protecting abortion access can also be used to curtail reproductive agency. Furthermore, not all Jews—including the 33% of American Jews affiliated with the Reform movement—consider halakhah authoritative. For those Jews, other factors inform both their Jewishness and their reproductive politics as much as or more than the legal tradition and what it does or doesn’t permit.
Such a conversation must also avoid making reductive claims about “the Jewish position” or “the Christian position” on abortion. As the lawsuit itself recognizes, not only Judaism, but other traditions, including Islam and Christianity, have had and continue to have far more nuanced understandings around abortion, contraception, personhood, and reproduction than regnant white evangelical rhetoric about “religion” would have us believe. Indeed, as scholar of American religions R. Marie Griffith notes, prior to the late 1960s and 70s, even organizations such as the Southern Baptist Convention were far more sanguine about abortion than they are now.
Let me reiterate: I fervently hope this lawsuit succeeds. I hope it establishes legal precedent, and I hope it helps spark a national conversation about both the complexity of religious voices and practices surrounding abortion, contraception, and reproductive matters broadly.
But these hopes are precisely why I believe we’ve got to stop making claims about “the Jewish position on abortion.” Doing so oversimplifies not only the range of Jewish discourse on the matter, but the range of discourses within other traditions as well, including Islam and, yes, Christianity. And it runs the risk of equating “the Jewish position” with “halakhic precedent”—a system that has been, until the last decades of the 20th century, more or less exclusively male. Leaning too hard on the ways in which halakhic precedent indeed does, at times, not only permit but even require abortion functions to erase Jewish women and other Jews who can get pregnant. It simply replaces one form of dogmatism with another.
What is indisputable is that Jews—of all religious affiliations—have abortions. Jews who can get pregnant need and will continue to need safe and easily accessible abortion. These people’s experiences and stories are just as important, and should carry comparable normative force, as halakhic precedent. Religion, as the excellent podcast Keeping It 101 reminds us, is people. Abortion access is a Jewish value because abortion is something Jews need. It need not be written for it to be “written,” so to speak.