Her Pain Prevails and her Judgment Respected—Abortion in Judaism

Abstract

In 1977, the Israeli parliament (Knesset) changed the section on abortion in the colonial criminal code which Israel inherited from the British mandate in Palestine. Like most other Western countries who relaxed their laws on abortion in the 1960s-80s, Israel made abortion legal for almost all women who seek it. Nonetheless, the Israeli law on abortion differs substantially from other nations' laws. In no stage of pregnancy does the woman have an absolute right to abort—she always needs an approval from a special committee; yet, the woman's stage of pregnancy is nowhere a relevant legal criterion for permitting or forbidding abortion. The law does not explicitly grant the fetus any value either, as the law speaks only of “termination of pregnancy.” Indeed, Israel has one of the highest rates of late abortions among the developed countries and one of the most liberal laws on the regulation of infertility treatments and research on extra-corporeal embryos.

Jewish religious law ( Halakhah) ignores both questions central to the modern ethical, political and legal debate on abortion: the status of the fetus and the autonomy of women. Furthermore, Halakhah is not expressed in the language of rights, such as the rights to life and privacy, but rather in the language of obligations and limitations on action. A rich symbolic world of values and virtues complements halakhic positivist formalism by inspiring and demonstrating desirable ways of life and modes of valuing human action. Regarding abortion, the dialectics between Jewish law (the formal law, which delineates right from wrong) and morality (which inspires and portrays ideal modes of action as part of a largely oral tradition of private counseling and synagogue preaching) reach a powerful climax. The religious law prohibiting abortion is one of the most liberal among human legal systems, but the values of procreation and preservation of human life that inform the moral discussion are fundamental.