The Day They Took Our Rights Away: Reversing Roe vs. Wade

 The Day They Took Our Rights Away

Shabbat Sermon by Rabbi Boaz D. Heilman

June 24, 2022

“Be fruitful and multiply,” a blessing given by God to Adam and Eve (Gen. 1:28) is understood, at least in Jewish tradition, as a commandment. As such, it is the first commandment given by God, and for thousands of years it has served as the moral principle in making life-and-death decisions.

The ability to reproduce and have children, however, also has legal implications. Children are more than a blessing: they are often seen as an economic necessity. Children—of all ages—can lend a hand in the kitchen or in the field and participate in family business ventures. In some countries, children have been traditionally employed from a very young age on to weave carpets or create clay pottery—crafts that often require small hands. In Nazi Germany, Jewish children were often spared (until they grew) because their small fingers could be useful in cleaning out bullet shells.

Worldwide, as of 2020, about 160 million children were subjected to child labor. That’s one out of ten. Poverty, migration, sudden illness (such as the COVID pandemic), or job loss of the family’s main provider are the main reasons for this terrible phenomenon. 

Whatever the reason, children were always seen as valuable property, used or abused at the will and whim of—you guessed it—mostly (but not exclusively) the father; or, in places were slavery was common, the master.

Thus, protecting the welfare of children was always seen as one of the most important issues mandating state legislation. 

The mother’s health, however, was also seen as a vital consideration. Up until recently, both child and mother’s mortality rates at birth were incredibly high. Doing everything possible to save the mother’s life became an absolute necessity.

The balance between the two issues was always at the heart of legal and moral debate.

The question of abortion today revolves on the meaning of the term “viability.” At what point does the fetus become “viable?” Additionally, at what point does the state’s right to protect the viability of an unborn fetus overreach a woman’s right to choose and control her own body and what happens within it?

For nearly 50 years now, Roe vs. Wade guaranteed the right of women to choose whether to carry a pregnancy to term or abort it, based on the right to privacy. 

In a landmark decision issued today (June 24, 2022), the Supreme Court overturned this decision, declaring that states have the right to regulate abortions, from the moment of viability on.

In doing so, the Supreme Court basically took away women’s rights to make their own decisions, a throwback to an ancient and outdated perspective. 

In truth, however, Roe vs. Wade was always more than only a moral choice. It was literally a life saver, giving permission to trained medical professionals to administer, in sanitary and safe conditions, a procedure that for millennia has caused countless tragic, needless deaths. Unwanted pregnancies aren’t always the result of a one-night stand, though that too is nobody’s business but the couple’s. Often, rape and incest led to unwanted and unloved children. The prohibition of abortion at any point, for any reason, may cause irreparable harm, even death, in cases where the mother’s health may be at risk.

In the Talmud (BT Yevamot 69 b), it is stated that “Until forty days from conception, the fetus is merely water.” This statement is part of an entire tractate discussing women’s rights, and considering that the discussion was conducted almost exclusively among men, the decision to declare a fetus viable at no earlier than forty days is important. It establishes a legal as well as moral precedent for all further Jewish law.

This view, however, is contradicted in the Zohar, the volume of mystical Jewish belief, which claims that "An embryo that was killed in its mother's womb is akin to destroying God’s Creation and his Omanut (art, creation or faith)” (Zohar 2:3b:6).  

The Midrash (Mekhilta d’Rabbi Yishmael 21:12:2) states yet another opinion, namely that aborting even at eight-months is not considered murder, if the fetus “is destined to die.” 

Family hardship, whether physical or emotional, was also deemed justifiable in ending pregnancy.

The debate in the Jewish community continues to this day, mostly along religious lines. Orthodoxy tends to be much stricter, whereas among Conservative and Reform Jews the majority opinion holds that the mother’s health is of paramount importance. A responsum issued in 2008 by the URJ (Union of Reform Judaism), states that “Abortion is an extremely difficult choice faced by a woman. In all circumstances it should be her decision whether or not to terminate a pregnancy, backed up by those whom she trusts (physician, therapist, partner, etc.). This decision should not be taken lightly (abortion should never be used for birth control purposes) and can have life-long ramifications. However, any decision should be left up to the woman within whose body the fetus is growing.” (https://web.archive.org/web/2008032098722/http://urj.org/ask/abortion; accessed June 24, 2022).

The general belief held by a majority of American Jews (close to 88%) today is expressed in an article by Rabbi David Ellenson (then president of Hebrew Union College) that first appeared in The Forward in 2003, against a legal ban on so-called ‘partial birth abortions.’ Rabbi Ellenson writes: “This law as it has been enacted unquestionably diminishes the inviolable status and worth that ought to be granted women as moral agents created in the image of God.” (http://www.huc.edu/newspubs/pressroom/2003/forward.shtml, accessed June 24, 2022). 

Obviously, the issue of abortions has both legal and moral implications, and possibly more so today than ever, the discussion is passionate and even violent. The decision reached today by the US Supreme Court may be based on legalistic point, but it unquestionably follows religious principles. Its extremely conservative perspective can only be construed as due to the influence of extremist religious groups. In protecting “state rights,” the Court has curtailed Constitutional guarantees for all people’s health and safety. In its decision the Court failed to recognize—and reaffirm—its previous decision of Roe vs. Wade. Though there is precedent for changing prior decisions, this is the first instance of the Court’s taking away individual rights rather than defending them.

In today’s decision, the US Supreme Court perhaps succeeded in affirming some minor legal footnote; but in the larger picture, it has failed both Americans—women in particular—and humanity as a whole. It has failed the test of an incontrovertible moral verdict, that women must be seen as free and independent “moral agents created in the image of God;” and that there are some areas in a person’s or family’s life where the State simply does not belong. Today’s decision sets us back hundreds and thousands of years and fails to align with a more enlightened view of human moral and legal rights. It's going to be a long and difficult struggle to move forward from this benighted decision. 

May we all find the moral and physical strength to fix that which is broken, and to set to right that which was wronged today.

© 2022 by Rabbi Boaz D. Heilman