What do we mean by Jewish continuity? This was the main question in our last session of the “Beyond Dispute” series on pivotal Jewish discourse over the centuries. It happened to coincide with the leaked draft of the Supreme Court’s decision on Roe v. Wade and was a good opportunity to explain Jewish views regarding this sensitive issue. From the main question in the class, many others stemmed. For example, is procreation an absolute value in Judaism? What would it mean to think about Jewish continuity, not solely in terms of fertility rates and swelling the Jewish population, but enhancing and enlarging a sense of community while also cultivating and supporting the values central to our tradition?
In January 1973, the U.S. Supreme Court decided the case of Norma McCorvey — known by the legal pseudonym “Jane Roe.” Four years earlier, she became pregnant with her third child and wanted to have an abortion. At that time, abortion was illegal in Texas, except when necessary to save the mother’s life. The case alleged that Texas’s abortion laws were unconstitutional, and addressed the issue of “fundamental rights.” Should these issues be decided by the states or by the Federal government — issues that many allege apply to us today, such as healthcare, gay marriage, and the legal use of cannabis. Should such issues be decided by the people in the states where they live, or should they be legislated from the courts? Some argue convincingly for “states rights,” but do these rights supersede the law of the land? Is it critical to determine when life starts and make that the law of the land?
What makes this such a divisive issue? In the beginning of Genesis, following God’s creation of the first human beings in His image, the Torah says, “God blessed them and God said to them, ‘be fruitful and multiply and fill the earth…’” Already here, we can see the different approaches to procreation. Was God commanding them or blessing them? Is it both, or does it mean that only by bringing children into this world is the rubric fulfilled? What are the reasons Jews are encouraged and commanded to procreate, and what values compete with those commands?
On one hand, the people of Israel have always valued life. The Tosefta, a second-century compilation of Oral Law, in Yevamot 8:7, Ben Azzai says, “One who does not engage in procreation sheds blood and annuls the image [of God], as it says, ‘For in His image did God make human beings,’ and it is written ‘And you, be fruitful and multiply.’” On the other hand, our session explored rabbinic and modern sources about procreation and contraception that discuss what happens when the value of procreation comes into conflict with other values. Those values can be education, harmonious marital relationships, financial stability, and the welfare of women, children and communities. The first concern in Judaism is for the living, Moses commands us always to choose life. But in many cases, the picture is not so clear; we must determine which direction will be more life giving. Is a person blessed only in relation to having children?
Suppose we shift the discussion from one of personal responsibility to responsibility for continuity? What are our obligations to future generations? What is our responsibility toward life in our society after birth? Judaism also values ideas that are greater than life, at least the life of the individual. The values that preserve the life of the community often come before the life of the particular. It is true that we need children to create a society, but what good is that society if its people are not cultivated, if they bring down low the image of God as in the Biblical cities of Sodom and Gomorrah? Furthermore, the three cardinal sins — idol worship, bloodshed and incest — require one to give up life before transgressing. Society is flesh, but it is also content — a house that is built for the purpose of making a home. Religions have differing views on the question of when life begins. Talmudic sources note that the fetus is “mere water” before 40 days of gestation, often the time of the first heartbeat. Following this period, the fetus is considered a physical part of the mother’s body. It does not yet have a life of its own until the first breath allows the soul to enter the body. However, the Torah, in Exodus 21, recounts the story of two men who are fighting and, in so doing, injure a pregnant woman, resulting in her subsequent miscarriage. The verse explains that if the event results in miscarriage, then the perpetrator must pay a fine. If the pregnant woman is gravely injured, the penalty shall be a life for a life, as in other homicides. From that, we learn that a fetus is precious and contains a level of life, yet the interests of the mother will always come before that of the fetus. According to Jewish law, abortion is healthcare, and is commonly interpreted to encompass psychological health as well as physical health.
In the end, we must consider the value of life. Why are we saddened to learn of Britney Spears’ miscarriage? Why should we arrest someone who disturbs sea turtle eggs? If we mourn this loss of potential life, why don’t we mourn for others? What about the future sense of loss and other consequences of abortions that many women suffer, sometimes years later? It’s easy to claim that the most intimate relationship on earth is between a mother and child — one flesh, separated. In the end, it’s not just about procreation. The most prominent evidence is that Jewish law is generally liberal about the use of contraception (a topic for another article). The message is to respect life and not to treat it cheaply, to not make abortion in our minds a substitute or the ultimate correction for contraception, that we take responsibility for the life we make and its blessings.
Lechayim. To Life!
—Rabbi Gadi Capela