A month from its signing, I examine New York’s recent abortion law (the Reproductive Health Act, or RHA) under the lenses of Jewish law (halakhah). The RHA institutes two major changes: 1) it takes abortion out of laws regarding criminal activity, and 2) it allows abortion when “the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health” (page 2, lines 46-49). This means that doctors performing abortions cannot be charged for carrying out unlawful abortions. Moreover, the law narrows the scope of unlawful abortion to abortions of perfectly healthy fetuses older than twenty-four weeks who pose no threat to the mother’s life or health.
The distinction between “illegal” and “unlawful” lies central to understanding New York’s law. “Illegal” refers to an act specifically prohibited by law, whereas “unlawful” refers to an act not specifically prohibited, but still not allowed by the law. Before the passing of the RHA, aborting a fetus older than twenty-four weeks counted as homicide, making it illegal. The recently passed law did not simply make exceptions to this general rule. Rather, it took an extra step to relegate late-term abortions of healthy fetuses who pose no threat to their mother’s health as merely unlawful (instead of illegal). In short, by taking “abortion” out of criminal law codes, the RHA legalizes all forms of abortion.
A diversity of opinions on abortion exist within Jewish law, some much more stringent than others. In “Abortion: a Halakhic Perspective,” Aharon Lichtenstein delineates some of these positions. Most opinions hold that an embryo forty days or younger cannot be considered a person. Nevertheless, many opinions discourage such early abortion on the grounds of improper emission of seed (senif retziha), preservation of potential life (hatzalah), and/or self-injury (habbala). However, because the New York law does not change the legality of such early abortions, I will not go further to address the halakhah on early abortion.
Rabbi Lichtenstein argues that abortion (after forty days) is prohibited not only by rabbinic rulings, but also by biblical authority. Basing his position on Sanhedrin 57b, which states that Noahides (non-Jews) are executed “even for killing fetuses,” he takes the position that abortion is homicide. (It must be noted here that rabbinic law avoids and exempts almost all forms of capital punishment.) This position is backed up by Genesis 9:5: “And your blood of your lives I will require; at the hand of every animal I will require it; and at the hand of man, even at the hand of every man’s brother, I will require the life of man.” Because halakhah holds Jews to equal or higher standards than it holds Gentiles, certainly a Jew who aborts a fetus is committing homicide. This follows a principle set forth in Sanhedrin 59a: “There is nothing that is permitted to a Jew that is forbidden to a gentile.” A Jew who kills a fetus may be exempt from punishment, just as suicide rarely brings punishment upon the suicide. But the act of abortion is nevertheless a form of homicide, even if not punished by execution.
Abortion as homicide is only one reason to prohibit abortion. As both R. Lichtenstein and R. Kenneth Shuster point out, many Orthodox Jewish sources do not consider abortion to be homicide. According to these opinions, abortion is strongly discouraged (or, sometimes, forbidden) for reasons such as senif retziha, hatzalah, and habbala—but not as strictly forbidden as homicide.
In all opinions, certain extenuating circumstances provide exceptions to the prohibition of late-term abortion. Maimonides and Issur Unterman only allow abortion to save the mother’s life. Rabbis hold differing opinions on diseased fetuses, generally granting more leniency to abort fetuses who are not viable due to pregnancy complications. Some rabbis allow abortion for very serious health threats: Rabbi Ben-Tzion Ouziel allows a woman to abort her fetus so as not to go deaf. Such cases are unique and generally rare. Indeed, as R. Lichtenstein notes, “in the overwhelming majority of cases there is no real danger of insanity or physical deterioration.” Such serious threats to health must be differentiated from less serious threats, such as psychological-social wellbeing or pain. The few rabbis who allow abortion to save the mother from pain appear to be the exception that proves the rule: allowances for abortion must be kept rare, as “highly exceptional cases rather than charting out a general policy” (Lichtenstein, 10).
The New York law does not delineate scenarios in which an abortion can be considered “necessary to protect the patient’s health.” This leaves a broad, subjective door open to individual doctors (or nurses, who can now perform late-term abortions without a doctor, as the law permits). Perhaps New York’s law should keep such broad allowances so that more specific decisions can be made on the individual level. On the other hand, this creates a slippery slope: protecting the patient’s “health” can be construed into pretty much any alibi.
While many Jewish legal opinions exist on the issue of abortion, the Jewish approach typically takes one of individual counseling, which usually addresses other parts of the mother’s life, including social and fiscal struggles. This stands in stark contrast to a state’s Boolean legal code. Counseling based on the “major principle of Halakha that one does not set aside a prohibition that conflicts with a positive obligation where it is possible to fulfill both requirements” resembles the sort of counseling pro-life organizations give to women who face a dilemma over abortion. Such counseling seeks to bring to the table “alternate means of dealing with these dilemmas.” With this direction in mind, “a general approach and comprehensive policy should clearly work towards this goal rather than for an expansion of the grounds on which abortions are to be countenanced” (Lichtenstein, 10-11).
Looking at the abortion rate in New York City paints the law in a different light. In Jewish law, abortion should be rare, as they are only performed for rare circumstances. However, in New York City, between a third and a half of all pregnancies end in abortion. This is far from rare. What’s more, a small minority of abortions are performed to protect the life or health of the mother, or because of unusual fetal developmental disorders. As Rabbi David Zwiebel grimly noted, “Abortion has become simply another method of birth control.” Such practice stands against almost every Jewish legal opinion on abortion. Only a dysfunctional society governed by halakhah would suffer such high abortion rates. Taking all abortions out from New York’s list of offenses and further facilitating them by allowing nurses to perform surgical abortions only worsens the abortion epidemic.
The RHA bases itself off a principle nonexistent in Jewish law: that women have a “fundamental right to access safe, legal abortion” (page 2, line 5). While Jewish law places use of contraceptives under a woman’s purview, halakhah never considers abortion to be an alternate form of contraceptives. Access to abortion simply is not a fundamental right in Jewish law.
New York, however, is a secular state, mostly inhabited by non-Jews, though it contains a significant Jewish population. The state’s law need not adhere to halakhah as it applies to Jews. In such a case, the main halakhah to consider for the state would be abortion as homicide. Even with abortion as homicide, however, one cannot simply rely on halakhah to determine what counts as homicide, because the halakhic cosmology surrounding personhood differs from the scientific paradigm that secular law bases itself upon. As such, the state must consider the personhood of the fetus, and any rights it may carry. Based on this, it should decide when abortion may be performed legally. Abortion that violates the rights of a fetus without sufficient grounds should be made illegal. Scientific advancements in developmental biology combined with common sense compel one to consider an extremely late-term fetus as a human with rights. Therefore, New York’s recent law taking away abortions (including extremely late-term abortions performed for reasons other than fetal viability or health of the mother) from punishable offenses contradicts humanity’s basic obligation not to kill one another.
 The Guttmacher Institute, founded by Planned Parenthood’s second president, releases statistics on reasons people opt for abortion.
Lichtenstein, Aharon. “Abortion: A Halakhic Perspective.” Tradition: A Journal of Orthodox Jewish Thought, Vol. 25, No. 4 (Summer 1991), pp. 3-12.
Shuster, Kenneth. “An Halachic Overview of Abortion.” Suffolk University Law Review, Vol. 36, (1992), pp. 641-651.