Abortion is My First Amendment Right

“Abortion is My First Amendment Right”
Rabbi Renni Altman
Shabbat Emor
May 17, 2019

Our rights and liberties as Jews are under attack.
I’m not talking about the threat from the White supremacist movement, though that is very real. I’m talking about the anti-abortion legislation signed this week in Georgia and Alabama, and today in Missouri, joining states like Ohio, Kentucky, and Mississippi — with more to follow.

Back in January, after our New York State legislature courageously passed a law protecting reproductive rights as codified in the constitution under Roe V. Wade, with protections even surpassing that law, I spoke in support of that law and about Judaism’s views on abortion and when life begins. Given the events of this week and the grave danger these states’ actions pose to women’s health and lives, to constitutionally protected rights and to the separation of church and state in our country, I cannot remain silent – or speak about anything else this week — for this issue is so important to me that to not address it would feel like an abdication of my responsibilities as your rabbi. So, at the risk of repeating myself, I beg your indulgence.

The mages are frightening:

  • protestors dressed in costume from The Handmaid’s Tale, Margaret Atwood’s frightening and powerful vision of a dystopian society where one class of women serve as the womb for another;
  • legislators who are making decisions impacting women’s lives but who cannot speak intelligently about reproduction;
  • laws being passed that will undoubtedly impact the poor who will not have the means to travel to get health care that those with financial means will be able to obtain, forced to bear a child that they did not intend to conceive and that may well have been a product of rape or of incest;
  • cases where the pregnancy may put the mother’s health at risk while not necessarily her life;
  • instances where the fetus is diagnosed with some terminal birth defect and enduring a pregnancy that will only end in the death of that fetus will cause unnecessary emotional pain that no one should be forced to endure;
  • or places where doctors will be limited from performing a medical procedure that they believe is in the best interests of their patients – at the risk of being sentenced to 99 years in prison!

I heard an interview from one of the organizers of the anti-choice movement in Alabama who was not at all bothered by the fact that under the new law the doctor who performs an abortion on a 15 year old who was raped could face a longer prison term than the rapist!

Intellectually, I do understand how those who believe that life begins at conception will, therefore, view abortion as murder and, consequently, will not allow an exception for rape or incest as such a termination would still be murder. I can appreciate how such people would be motivated to prevent what they understand to be murder from happening.

However, the notion of when life begins is not a scientifically proven fact; it is a matter of personal belief that, for many of us, is based on our faith.

In the second story of creation in Genesis, we read that God breathed into the first man the breath of life. When do we understand that happening today? When a baby is born and takes that breath? At conception? When a fetus is viable to survive? What is the status of a 6 week old fetus?

My faith guides me in this determination. It teaches quite clearly that a fetus is a life in potential, but that it is not yet a human life. When does life as a full life begin according to Judaism? The answer is codified in the Mishnah, the first of the law codes to follow the Bible, dating back to the year 200 CE: when the largest part of the fetus emerges in birth. Until that point, a fetus is a potential life, but the woman’s life ALWAYS takes precedence.

The basis for this determination is a case of damages recorded in the Book of Exodus. It presents the case of a pregnant woman who is injured accidentally when two men are fighting. If she miscarries, the man who caused the injury must pay the husband damages; if, however, that pregnancy loss would have been considered murder, the penalty would have been lex talions – life for life.

Throughout the development of Jewish law, the woman’s life takes precedence over that of the fetus. We do find differences in the interpretation of that principle as it applies to cases where the woman’s life is not literally at risk, but where the pregnancy or having a baby could lead to various difficulties. These are instances when the pregnancy would cause severe emotional distress to the woman or where that pregnancy would threaten the life of another child (in other words, another existing life).

The rabbis even understood different stages of pregnancy. Back in the 12th century, the great Biblical and Talmudic commentator, Rashi, taught “in the first forty days, it is mere fluid.”

NONETHELESS, the rabbis recognized that the fetus is a life in development. Thus, in the Talmud they taught that in the case of a pregnant woman who dies on Shabbat, one would violate Shabbat to save the fetus under the principle of pikuach nefesh, saving a life, even though the fetus is not yet a life. “Profane for his sake one Sabbath, so that he may keep many Sabbaths.” (Babylonian Talmud, Yoma 85b)

My faith, my understanding of life, teaches me that ABORTION IS NOT MURDER. The life, health and emotional well-being of the pregnant woman must always take precedence. Yet, as a potential for life, as a human being in process, in development, a fetus is in a different category from an appendix or some other bodily part that can easily be removed. But regarding how the determination of when a pregnancy should be terminated and how the different factors impacting a woman’s life and well-being are to be considered, my faith teaches me that those decisions should be left up to the woman (based upon her faith or moral grounding and understanding of when life begins), in consultation with her medical provider and, if she so desires her religious leader, and, where appropriate, her sexual partner.

It is this right to make this most difficult and personal decision that is currently protected by the 14th Amendment of the Constitution as affirmed by the Supreme Court Decision of Roe V. Wade. These new anti-abortion laws are a clear violation of this right.

I also understand these laws to be a violation of my religious freedom as guaranteed by the establishment cause of the First Amendment of the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Frankly, I’m surprised that this aspect of the abortion debate has not been given much attention in the media. Thus, I was pleased to read this morning in the now only digital version of the Forward a column by Jane Eisner that begins: “In enacting a law that would make performing virtually all abortions a crime, the state of Alabama is impinging on my religious freedom as a Jew.” (https://forward.com/opinion/424456/jews-need-to-stand-up-for-abortion/ )

It is the same principle by which we fight prayer in public schools. For many years now, we have witnessed the wall separating church and state begin to crumble. In the Hobby Lobby case in the Supreme Court, for example, employers were given the right to refuse to include contraception in health insurance coverage for their employees because it violates their religious beliefs, regardless of the beliefs of their employees.

A recent ruling by the Department of Health and Human Services gives health care workers and institutions (such as religiously funded hospitals) the leeway to refuse to provide services if they cite a religious or conscientious objection; that would include abortion, sterilization, and overriding a Do Not Resuscitate order!

The “fetal personhood” movement is another glaring violation of my religious freedom. Again, Judaism teaches that a fetus is not a separate being; it is understood that a fetus is part of the mother. As far back as the 12th century, Rashi said that fetus has no separate legal rights or identity. Thus, when a pregnant woman converts to Judaism, the baby born is Jewish.

The supporters of this movement would charge women with murder for having an abortion. In her column in today’s New York Times, Michelle Goldberg wrote, “Already today, some states have legislated “fetal personhood” and women have been arrested on suspicion of harming or endangering their fetuses by using drugs, attempting suicide or delaying a caesarean section…. In 2014, a woman was arrested under Alabama’s “chemical endangerment of a child” statute for taking half a Valium while she was pregnant” (Post-Roe America won’t be like Pre-Roe America. It will be worse. Michelle Goldberg, NYT 5/16/19)

These laws and actions are steps that are tearing down the separation of church and state, a bedrock our democracy. This is not a Christian country! The United States of America is a nation founded on the principle of freedom of religion.

As a religious minority that now thrives in this country (despite rising anti-Semitism), it is incumbent upon us to speak up to protect this fundamental principle upon which our nation was founded – not only for ourselves but for all minorities.

So what can we do?

A week from Wednesday, I will be joining with members of Concerned Clergy for Choice in Albany to meet with our lawmakers.

First and foremost, I want to thank them for the swift action they took on the anniversary of the Roe v. Wade decision to strengthen support for reproductive rights in our state and to protect the doctors and medical personnel who provide these medical services for women by moving these laws out of the penal code and into the health care laws where they belong. We don’t thank our legislators enough; they need to know that they have our support, especially in such controversial matters.

We will also be asking our legislators to support a renewed initiative to bring sex education to New York State. All sides on this debate can agree that we are in favor of minimizing the number of abortions in our country. One of the best ways to do that is to educate our children about reproduction and contraception. If the energy and funding that is going into the current anti-abortion debate would be directed towards such efforts, we would go a long way to preventing the abortions they are fighting against.

If you believe in supporting reproductive rights and protecting religious rights in our country, I would urge you to support organizations that are now taking on this battle in states where these rights are in danger. They need financial support to carry on the legal battles that will ensue.

For much of the past forty-six years since the landmark Roe v. Wade decision, supporters of reproductive rights have breathed a sigh of relief and moved on while the anti-choice movement has never moved away from this cause and has been building up their efforts for a time such as this, with a President who supports them and has changed the balance in the Supreme Court.

For many years now, anti-abortion groups have taken intermediary steps to limit women’s access to abortion, often under the guise of protecting women’s health

Such steps have included

  • creating unnecessary requirements for clinics to be able to perform abortions that have resulted in the closing of clinics:
    o In 2017, in 25 states, more than half of the women lived in a county without an abortion provider
    o In 2014, some 44% of New York counties had no clinics that provided abortions,
    and 10% of New York women live in those counties (Guttmacher Institute)
  • Requiring an additional sonogram close to the date of the abortion that have required women to make additional trips to the clinics.
  • Mandated waiting periods, parental notification for minors, etc
  • Most recently, effective this month, President Trump reinstated the Gag rule withholding Title X funding from organizations (such as Planned Parenthood) that provide counseling or referrals about abortion. This ruling is currently in the courts.

Some of these laws have been struck down on the basis of the 1992 Supreme Court decision in Planned Parenthood vs. Casey that ruled that abortion restrictions cannot place an undue burden on women.

These latest state rulings in states such as Alabama that effectively ban abortion and make the doctors liable for criminal action, have taken a more dramatic step in their very openly stated goal of overturning Roe. It is not yet clear if that will be achieved, but if these state laws make it to the Supreme Court, the future of Roe is anything but guaranteed. Analysts imagine that the rights guaranteed by Roe may be whittled away piece by piece, rather than overturned all at once.

Either way, the future may be more frightening for women than it was in the pre-Roe days. While medically induced abortions may replace the dark days of back alley abortions, women may be forced to get those medications online without professional guidance or support (or back up in case of any complications). Women who have or attempt abortions may be charged with murder or attempted murder.

The majority of Americans believe that abortion should be a matter of personal choice; we can no longer be a silent majority.

Rabbi Renni Altman

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