Lost in the clamor over the recent report about the Supreme Court ostensibly planning to overturn Roe v. Wade is an irony that is also hypocrisy:
Many of the same people who, for the last decade or two, have been ranting frantically about the threat of Muslims imposing Sharia Law on American society (a threat entirely unsubstantiated and completely removed from reality) have simultaneously championed the outlawing of abortion — effectively imposing a Christian belief on all Americans, Christian or otherwise.
Even more perplexing perhaps are Jews who have allied themselves with this anti-abortion, anti-choice position. In some cases, this is a knee-jerk compliance with the conservative agenda for some narrower aim that, unwittingly or not, reflects a willingness to go along and sometimes even extol the virtues of a Christian-led erosion of the separation of religion and state.
Some in the Jewish community have justified this compliance by trying awkwardly to harmonize Jewish and Christian views of abortion. To be sure, an anti-abortion argument can be (and has been) made based on Jewish sources, most notably a century ago by Rabbi Moshe Feinstein, one of the leaders of turn of the twentieth century American Orthodoxy. Feinstein's argument is tenable, but somewhat circuitous:
An inference by the Talmud (Sanhedrin 57:b) that Genesis 9:6 refers explicitly to abortion from which Maimonides later concluded that a gentile (ben noach) who takes a life, even a fetus in the mother's womb is seen as having committed murder; from which Feinstein, citing a statement by the medieval Tosafists that “anything prohibited to a gentile is not permitted to Jew,” concludes that Judaism opposes aborting of a fetus.
The problem is not what this seemingly valid argument says, but that it ignores other sources that reach an opposite conclusion using a more straightforward, explicit argument. This more compelling argument, articulated by Feinstein's contemporary Rabbi Eliezer Waldenburg (aka Tzitz Eliezer) is built on a clear-cut statement in the Mishneh (Oholot 7:6):
If a woman is having difficulty delivering, the fetus can be cut up and removed limb by limb because (and here is the defining phrase) her [i.e the mother's] life take precedence over the life of the fetus.
This unambiguous statement is reiterated in the Gemara (Sanhedrin 72:b) and then elaborated further by Rashi, who added:
As long as the unborn fetus has not seen the light of day [lit. lo yatza ba-avir ha'olam, not gone out into the air of the world], it is not a life and can be terminated to save the life of the mother.
A simple application of Occam's Razor (the more straightforward argument tends to be the more valid and accurate one) explains why this latter argument has been the mainstream and definitive Jewish position on abortion for more than a millennium. This begs the question: why would Feinstein and other halachically-oriented, otherwise reasonable Jews embrace a position on abortion that contradicts clear-cut statements in the Mishnah and Talmud and by Rashi that prioritize the health of the mother?
With regard to Moshe Feinstein, the answer is two-fold. Feinstein lived largely apart from the outside world and mainstream society, immersed instead in a Yeshiva world of rabbinic texts and Halachic arguments. He had little notion of or interest in the day-to-day realities of the outside world. For him, the issue of abortion was a hypothetical and theoretical legal dispute, an exegetical exercise with no practical implications for the health of women, Jewish or otherwise, or their right to have a safe abortion.
More broadly, Feinstein's attitude reflects a deep distrust of modernity and modern society that has permeated Orthodox circles for the last two centuries. For someone like Feinstein, the overriding goal of implementing and enforcing Jewish law and custom was preventing Jews from becoming less observant, no matter the cost.
In the United States, this mentality has led to single-issue voting among segments of the Orthodox community, with little or no concern for anything that does not directly impact the level of religious observance. If hard-right Christians are spearheading the movement to allow tax revenue to fund parochial schools, Ultra-Orthodox and Hassidic communities have supported the entire Christian agenda — even reprehensible parts that conflict with the spirit of Judaism — in order to be able to use state funding for Jewish schools.
This attitude echoed that of Schneur Zalman of Lyady, the first Lubavicher Rebbe, who was among the first rabbis in Eastern Europe to define the dilemma posed to Jews and Judaism by modernity and, in particular, by the benefits of Jewish emancipation. In 1812, the armies of Napoleon Bonaparte invaded Russia, threatening/promising (depending on whom you asked) to bring citizenship and the liberal views of French society to the backward, ultra-conservative Christian Russian Empire — where Jews were, at best, ostracized second-class subjects living overwhelmingly at subsistence level with little or possibility for improvement.
Faced with the choice between Napoleon and emancipation, on the one hand, and the harshness of Tsarist rule, on the other, the Rebbe chose the latter, eschewing any improvement that might undermine the religious status quo of the Jewish community:
If Bonaparte is victorious, the wealth of Israel will increase and the glory of Israel will be exalted; but the hearts of Israel will be alienated from their father in heaven. And if our master Tsar Alexander is victorious, even though the poverty of Israel be increased and the glory of Israel darkened nonetheless the hearts of Israel will be connected, bound, and tied their father in heaven..."
Life under the Tsar was difficult and precarious, but at least Jews went to shul every week.
This choice became the template not only for Lubavicher Hassidim in Russia, but for Orthodox Jews generally, in Russia and elsewhere, regardless of who was on the other end of the arrangement. In Russia, Hassidic leaders reiterated this Faustian bargain with Tsar Nicholas I, who conscripted Russian Jews into the Tsar’s Army and undermined the authority of the Jewish community; Tsar Alexander III, who impoverished the Jews in the Pale of Settlement by imposing the May Laws; with Tsar Nicholas II, whose infamous plan for Russian Jewry was to "deport one-third, expel one-third, and allow the rest to perish;" and, most recently, with Vladimir Putin. In Hungary, this bargain defines the relatrionship between Orthodox Jews and Viktor Orbán. As long as a government leaves the Orthodox community alone, and offers a few perks, the latter blindly supports it.
The larger implication of this position, moreover, transcends the Christianizing of a woman's right to choose, and underlines the threat posed by the erosion of the separation of religion and state. Simply put, the debate over Roe v. Wade has been transformed by its opponents from an argument about free choice and individual rights — both of which are hallowed in the US Constitution — into a litmus test measuring one's Christian bona fides.
To allow an overtly Christian position to be the determining factor in the legal application of a constitutional principle — in this case, the right to privacy — ignores the indispensability of the separation of religion and state for Jews no less than for other religious minorities. Yes, Jewish schools would benefit, for example, in the short run from state funding, but the long-term effect would be a Christianizing of American society with adverse effects on American Jews.
A less deleterious possibility would be Jewish children in public school being forced to recite the Lord's prayer every morning or being penalized for missing school on Jewish holidays. A more severe consequence would be the reinstatement of anti-Jewish Christian practices and views into the public school curriculum. Imagine a history or social studies teacher explaining why Jews poisoned wells or kill Christian children to make Passover Matzo? Separation of church and state is the bullwork that has purged such "lessons'' from public schools.
Eroding this separation would benefit Christians far more than anyone else. For Jews, the choice between a non-religious public sphere and a Christian is a no-brainer. Helping to protect a women's right to have a safe abortion from those who would deny this right in the name of a more Christian America is something every Jew must do.