Readers of this column may have heard the Jewish joke about the rabbi who is asked to settle a dispute. After listening to one side’s argument, the rabbi declares, “You’re right!” After listening the other side’s argument, the rabbi nods and says, “You’re right, too.” His wife, who is listening, declares, exasperated, “Rabbi, this is absurd! They can’t both be right!” The rabbi sighs and replies sadly, “You’re also right!”
The case of Lieberman vs. Medved bears a certain resemblance to the joke. On one side we have the Democratic vice-presidential nominee Sen. Joseph I. Lieberman, an Orthodox Jew, who supports a woman’s right to have an abortion. He told Larry King, on his show, that Jewish law is so deeply divided on the issue that even among Orthodox Jews it may be construed as “a personal matter.” On the other side we have conservative radio host Michael Medved, also an Orthodox Jew, who derides Lieberman for distorting Jewish thought. The law is clear, Medved wrote in the Wall Street Journal: Orthodox Judaism “sanctions abortion only when the life of the mother is directly threatened.”
Guess what: Lieberman and Medved are both right! They’re also both wrong. Lieberman is right to say that Orthodox Jews have differing opinions on abortion, but wrong to create the impression that the liberal notion of abortion on demand is among them. Jewish law emphatically rejects that idea. Women are never allowed to dispose of a fetus for so-called trivial reasons–because they can’t afford to have a baby, for instance, or because there’s a chance that it may be deformed. So Medved is right to say that the Jewish law frowns on abortion in general, but it’s misleading of him to suggest that the rabbis make only one exception. Indeed, this is the question they disagree about most. The term “threat to the mother” is more of a guideline than a strict principle and may be interpreted so broadly, even by respected Orthodox rabbis, that it includes situations in which the mother’s life would not appear–to the non-rabbinic eye–to be at risk.
How can a single legal system engender such disparate perspectives? To understand that, you have to grasp a central fact about the Jewish legal code, which is that it’s not a set of policies. It’s a compendium of debates about possible policies. It is commonly believed in the non-Jewish world that the Talmud is the Jewish book of laws, but that’s not quite right. The Pentateuch, or Five Books of Moses–that is, the first five books of the Old Testament–contain the 613 mitzvahs, or commandments, by which Jews live. The Talmud is an anthology of abstruse and (to Culturebox, anyway) weirdly fascinating conversations about those commandments, as well as a slew of other biblical and extrabiblical passages that appear to the uninitiated to have nothing to do with the principles of conduct extracted from them. You cannot compare the Talmud to, say, the United States civil code, a series of prescriptions issuing from Congress, or to Catholic doctrine, which comes directly from the pope. The Talmud is more like the minutes of religious study sessions, except that the hundreds of scholars involved in these sessions were enrolled in a seminar that went on for more than a millennium and touched on every conceivable aspect of life and ritual. It would be hard to overstate the Talmud’s amorphousness. The more closely you look at it, the harder it is to pin down. How did the rabbis choose which verses to analyze? What’s their system of logic? The rabbis derived their rules from the sacred narratives by means of induction and deduction and syllogism and whimsical etymologies and literary hermeneutics, but those weren’t their only methods. They also incorporated folkloric glosses that had been passed down orally over hundreds of years, in part to ensure that these stray ideas got written down. And then they argued ceaselessly among themselves about which interpretation was right.
If all this doesn’t make coming to clear-cut conclusions taxing enough, consider that Jewish law also comprises dozens of commentaries on the Talmud and thousands of individual rabbinic responses, their opinions expanding on or refuting previous opinions. In the case of irreconcilable differences, which are legion, there is no court of appeal other than God, and his views, of course, will never be known. In other words, the Jewish legal system is an ongoing give-and-take between rabbis who see everything as up for discussion and nothing as settled once and for all.
Don’t think, though, that just because Jewish law lacks agreed-upon sources or an ultimate authority that means the rabbis welcome change. On the contrary, the difficulty of participating in the debate sets the bar for advancing it extremely high. (A rabbi who can convince others that he’s right on some key point is awarded the title of “posek,” or “decisor.”) So while the Jewish position on abortion is better described as a set of finely nuanced positions arrayed between two extremes, they are more or less the same extremes that have dominated the discussion for the past two millenniums.
Here are the outer limits of the Jewish positions on abortion: 1) Unlike in Catholicism, in Judaism the fetus isn’t a legal person until it’s born, so abortion can’t be murder. (This isn’t even as different from Catholicism as it seems. The Catholic Church itself didn’t insist that life began at conception until 1869. Before that, the Church tolerated abortions through the 40th day of pregnancy.) 2) The fetus, although perhaps not a legal person, is a potential one with a limited number of legal rights (such as the ability to inherit property in certain cases), so abortion is like murder, even if it isn’t exactly the same thing.
Naturally, depending on where you’re disposed to end up on the abortion question, you’ll start with a different biblical text. If you’re basically willing to tolerate the practice, you’ll cite a passage in Exodus (Ex. 21:22) in which two men fight and one of them accidentally hits a pregnant woman in the belly, causing her to miscarry. If she is not harmed in any other way, the Bible says, then the man who struck her has to pay her husband damages. From this one can deduce that feticide isn’t murder, because the penalty for murder is death. Rather, removing a fetus is said to be like amputating a limb–which a woman is still not allowed to do for mere economic or cosmetic reasons, since that would be self-mutilation, which is forbidden.
If you sternly oppose abortion, you’ll point to Genesis 9:6. This verse is more of a stretch, but by Talmudic standards, it works. It reads: “He who sheds the blood of man through man [that is, through a human court of law], shall his blood be shed.” In Biblical Hebrew, “through” can also be “in,” so one Roman-era rabbi who was probably disgusted by his country’s occupiers’ practice of experimenting on fetuses re-interpreted the phrase as saying, “He who sheds the blood of man in man [that is, kills a fetus], shall his blood be shed.” That made abortion a capital crime, but for reasons too complicated to get into here, one whose penalty can only be imposed by God, not man. (Since the rabbis all but abolished the death penalty by making it impossible to enact, saying a crime was capital didn’t have much effect anyway.)
The one thing everybody agrees about, whether abortion resembles murder or not, is that in the case of a threat to the mother’s life, Jewish law requires you to save her rather than the fetus. (Catholics save the fetus, on the grounds that the mother bas been baptized and will go to heaven, whereas the fetus has not and is condemned to limbo, if not to hell. Jews don’t worry as much about the afterlife.) Opinions diverge again, however, over how elastic to make this notion of threat. Rabbis who think abortion is like murder believe that only imminent physical or psychological danger–such as a suicide threat accompanied by clear signs of psychosis and a psychiatrist’s evaluation–constitute sufficient grounds for an abortion, because then you can argue that the woman does it in self-defense. Rabbis who think abortion is like cutting off a leg will permit abortion in cases of less physical threat to the woman. When the justification is psychological, they’ll accept that mere anguish might be reason enough to warrant the procedure, rather than require her to show that she is insane. (Having been raped might be one such cause for distress; the prospect of raising a seriously deformed child might be another.)
Rabbis also offer a dizzying menu of views about how early or late into a pregnancy the procedure can be performed, ranging from only up to 40 days after conception to up to the beginning of the third term. (If the birthing process seems likely to be fatal for the mother, you can remove the fetus at the very last moment–until the head crowns, at which point the fetus becomes a person with a soul and a full legal identity.) These debates derive from different verses than the ones cited above. In one such verse, the fetus is deemed to be little more than water until quickening (in the ancient world, 40 days after insemination).
Lieberman and Medved are both fully aware of the complex shadings of Jewish law, so why do they give such partial accounts of its views on abortion? Setting aside the fact that you’d have to be a master aphorist to communicate Talmudic reasoning in a sound bite or op-ed, each man has little interest in having the whole truth be known. Lieberman doesn’t want to be seen to be failing to act on Orthodox Jewish values as he advances the Democratic Party line, even though most members of the American public would probably be willing to grant him the right to espouse two points of view–a privately held religious view and a view about what would be best for the country. That’s how the Catholic Mario Cuomo used to explain his support for abortion, for example. Lieberman could also argue that while Jewish law doesn’t leave it up to a woman to decide whether to abort her pregnancy, that decision is left to her rabbi, so a national policy of abortion on demand actually grants rabbis the greatest possible scope for the exercise of their authority. (Politically, that is not an entirely satisfying position, since it suggests one standard for Jews and another standard for everybody else.)
Medved’s reasons for representing the Jewish stance on abortion as more negative than it might otherwise seem are, in all likelihood, twofold. Medved–who sometimes substitutes for Rush Limbaugh on his radio show–is as ardent a Republican as Lieberman is a Democrat, and like Lieberman, Medved is trying to repackage Jewish thought as consistent with his party’s line. But his comment also reflects a sociological fact about Judaism. Over the past half-century, and particularly in the past two decades, Orthodox Judaism has moved noticeably to the right. Up until 50 years ago, the Genesis passage and the strong anti-abortion position were invoked relatively rarely. In a post-Holocaust world, however, some Orthodox Jews have considered it an implicit imperative to repopulate their ranks and have begun to have extremely large families. There is a powerful social presumption against abortion, and the Genesis verse has become a more common starting point for discussion. A few leading ultra-Orthodox rabbis have even taken to dismissing the Exodus argument as irrelevant, since it deals with damages, not abortion per se. To them, abortion is murder, permissible only in extreme self-defense. With that, these rabbis have ruled out of order a strain of thought valid for more than a millennium. This may be why Medved feels he can represent a hard-line opposition to abortion except in cases of dire threat to the mother as the Orthodox Jewish position. Lieberman, on the other hand, adheres to the most liberal and outward-looking branch of orthodoxy, Modern Orthodox Judaism, and is therefore more likely to see the law as a spectrum of opinions, rather than a definitive pronouncement.
Illustration by Robert Neubecker.
