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Why post-Roe abortion bans should exempt spiritual Jews

(RNS) — Conservative Christians have been profitable lately in profitable exemptions from health care laws, nondiscrimination laws (particularly these governing women’s and LGBTQ equality) and even office harassment legal guidelines. 

Now, nonetheless, with the prospect of Roe v. Wade being overturned and abortion being criminalized in dozens of states, spiritual exemptions might want to begin flowing to different teams. For starters, exemptions have to be granted to any Jewish particular person searching for to apply their faith and procure an abortion.

Whereas Judaism offers rise to a number of views relating to abortion (“Ask two Jews, get three opinions” goes the joke), the mainstream of Jewish legislation overwhelmingly holds that life begins at start, not conception. Jewish legislation not solely permits abortion; when the lifetime of the mom is at stake, it requires it.

There are two biblical bases for this view.

First, the Torah is obvious {that a} fetus shouldn’t be considered a human life. Although capital punishment was, in response to the Talmud, by no means really meted out by a Jewish rabbinic court docket, the Torah specifies, many instances, that homicide is to be punished “life for all times.” But in response to Exodus 21:22, when an assault on a pregnant girl ends in a miscarriage, solely financial damages are due. 


RELATED: For red-state clergy who back abortion rights, losing Roe is a call to action


Regardless of the problematic components of this legislation, it clearly signifies {that a} fetus shouldn’t be equal to a human life; in any other case, as many states at the moment are proposing, killing it might represent homicide. Varied Talmudic passages elaborate on this view, relating to a fetus earlier than six weeks as “mere fluid” and afterward as “its mom’s thigh” — an appendage of the mom, not a life in itself.

The notion that Judaism is “pro-life” within the slim, modern that means of the time period is thus profoundly mistaken.

Second, when somebody or one thing is threatening to kill a human being, that particular person or factor is called a rodef, or pursuer, and it’s incumbent upon others to do something — together with killing — to cease it. Whereas the Bible solely speaks when it comes to a thief breaking into a house, Talmudic legislation expands the idea to incorporate any imminent risk to a human life.

Thus, in ugly element, the Talmud requires that if a lady is having issue giving start, one should “minimize up the kid in her womb and convey it forth limb by limb” moderately than enable the mom to presumably die. The good medieval sage Maimonides mentioned that one should do that “with out compassion” for the fetus, as a result of it’s a rodef, including that medicine or surgical procedure is appropriate.

Later rabbinic sources prolonged this place to incorporate stopping emotional ache as properly. Rabbi Jacob Emden, a famend (and very conservative) 18th century Jewish authorized authority, held that abortion is permitted when giving start would trigger “woe” or “nice ache,” such because the disgrace then related to extramarital intercourse. Within the late twentieth century, Orthodox rabbis held that this precept additionally extends to conditions the place the fetus has been recognized with a critical genetic illness or start defect.

Right this moment, whereas positions fluctuate by denomination, all demand some exemptions from a blanket abortion ban. Some Orthodox authorities oppose “abortion on demand” however require an abortion when the mom’s life is in peril. Some Reform and Conservative organizations — which, importantly, embody the voices and experiences of ladies — allow abortion in all circumstances, and so Conservative and Reform Jews require an exemption in all circumstances.

And naturally, the query of whether or not an act is religiously permissible is distinct from whether or not the federal government ought to enable or prohibit it.

Demonstrators protest outdoors the U.S. Supreme Court docket, Might 3, 2022, in Washington. A draft opinion suggests the U.S. Supreme Court docket might be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, in response to a Politico report launched Might 2. (AP Picture/Jose Luis Magana)

The purpose, nonetheless, is obvious: if Jewish ladies are to train their faith freely, they have to be allowed to terminate a being pregnant, with the particular situations dependent upon her explicit beliefs. Compliance with the legal guidelines of Mississippi, Texas, Oklahoma and different states which have promised to ban abortion is in direct battle with the apply of Judaism.

Luckily or not — and for LGBTQ individuals like myself, undoubtedly not — courts have acknowledged during the last 20 years that spiritual exemptions are mandated by the federal Religious Freedom Restoration Act and the numerous state variations of it. Usually, underneath RFRA, the federal government should present that any legislation that considerably burdens spiritual apply is “narrowly tailor-made to serve a compelling authorities curiosity.” 

Within the 2014 Hobby Lobby case, a carefully held company owned by a non secular household efficiently argued that RFRA required that the corporate be exempted from the Inexpensive Care Act’s mandate that employers’ insurance coverage cowl contraception. Any Jewish girl in a state that prohibits abortion have to be granted the identical type of exemption. If such an exemption shouldn’t be written into the ban itself, then she could sue, as Passion Foyer did, to have a court docket declare it.

Certainly, it’s even potential the Supreme Court docket could discover that the Structure itself, moderately than RFRA, requires that this strict normal be met for legal guidelines that burden spiritual train. Many commentators believed it might achieve this final yr in a case involving a Catholic foster care company that discriminated in opposition to homosexual {couples}.

That didn’t occur, a lot to the reduction of liberals, however it could occur quickly. In a series of “shadow docket” cases on COVID-19 rules, a majority of the court docket mentioned even defending human lives from a lethal pandemic doesn’t justify “discriminating” in opposition to church buildings and synagogues.


RELATED: Even abortion foes will help friends who choose to end a pregnancy


Lastly, it doesn’t matter whether or not the lady bringing a RFRA declare is Orthodox, Reform or of another denomination so long as she professes honest beliefs which might be clearly a part of an current spiritual custom. Courts are usually not arbiters of non secular doctrine; if a claimant establishes that the doctrine exists and professes perception in it, that’s the finish of the inquiry. In any case, each interpretation of Jewish legislation requires some exemption from an abortion ban; the one query is one among scope.

Abortion foes could not like this consequence, however it’s the mandatory results of the previous decade of Supreme Court docket jurisprudence. Spiritual practitioners are exempted from liberal-backed legal guidelines that burden their faith, and now spiritual practitioners have to be exempted from conservative-backed legal guidelines that burden theirs. That features abortion bans, which battle with millennia-old teachings of Judaism.

(Rabbi Jay Michaelson is an legal professional who has coated the Supreme Court docket for New York journal, the Every day Beast and different retailers. The views expressed on this commentary don’t essentially mirror these of Faith Information Service.)

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