Thirty Years of Roe vs. Wade | Congregation Beth Am

Thirty Years of Roe vs. Wade

By Rabbi Chuck Briskin on
January 31, 2003

Thirty Years of Roe vs. Wade

One afternoon thirteen years ago the local Ku Klux Klan paid a visit to the rabbi. Dressed in full regalia, they appeared in the parking lot of his Shreveport Louisiana synagogue. Around that time as well, the rabbi received several death threats. His family was terrified, his congregation shocked. What had this rabbi done to attract so much undesired attention to his tiny shul in this small Louisiana parish? Rabbi Michael Matuson had joined an ACLU lawsuit against the state of Louisiana. Its legislature had passed a sweeping anti-abortion law that would criminalize doctors, health care workers and women seeking abortions, and the ACLU was suing. When the press learned that this new, young rabbi had joined the suit, they placed his photograph on the front page of the Shreveport newspaper. The Klan’s presence and the threats ensued shortly thereafter. What drove Rabbi Matuson to take this brave stance? Why was he compelled, as a Jewish leader, to risk his life for the sake of abortion rights?

Last week we observed the thirtieth anniversary of the landmark legislation of Roe vs. Wade. Ever since that momentous decision, women and men, religious organizations and political action committees, legislators and judges have been debating this divisive issue; many have taken their stance with intense passion and fervor. We are well aware of the dangerous reactionary voices against choice. We may dismiss some of these zealots as crazed and misguided. Yet there are many thoughtful and articulate people who hold a deep and sincere conviction that abortion is immoral. Many ground their beliefs in their religious faith. Those who are fervently pro-choice or anti-choice are not likely to find common ground. Nevertheless if we choose to take a religious and moral stand on abortion rights, we need to know what Jewish tradition has to say about this complicated and heart-wrenching issue.

Judaism refuses to take a simplistic stand on this very nuanced moral issue. Yet, three things are plainly clear: One, Jewish tradition does not consider a fetus to be the same as a human being. The text from this week’s parasha explains: If a pregnant woman is accidentally injured in a fight between two men and she miscarries as a result, the man who injured her is responsible for monetary compensation as a penalty. It is not a capital offense. The fetus has value, but not status as a full human being. (Exodus 21:22) Two, the health and safety of the mother always takes precedence over her fetus. The mishna supports this by teaching: “If a woman’s labor becomes life threatening, the one to be born is dismembered in her abdomen . . .for her life comes before the life of the fetus.” Three, a fetus is not considered to be a full, living, independent soul until it emerges from its mother’s womb. The same mishna text teaches that, “once most of the child has emerged it is not to be touched, for one soul is not to be put aside for another.” (Mishna Ohalot 7:6).

Unlike historical Christianity, which considers “ensoulment”—the time when the soul enters the body—to occur at conception, the Talmud teaches that the embryo is considered to be mere water until the fortieth day, and it is considered to be less than a full human being until it is born. (Yevamot 69b) The fetus is seen as a nefesh, a soul, only after it emerges from the womb. Although there is a broad spectrum of opinion within the Jewish community, our sages from the time of the Talmud, through the great medieval commentators to the modern day rabbis have overwhelmingly permitted abortion to save a woman’s life. But rabbinic authorities are divided on the question of whether abortion is permitted for the sake of a woman’s psychological well-being.

Despite an enduring tradition that places primary value on the health of the mother, and despite a generally permissive attitude towards abortion, many Jews in the pro-choice camp find themselves unable to articulate a religious response to the religious right. When anti-choice advocates claim that pro-choice supporters don’t cherish life, one only need to look at our ancient tradition that has always held life to be sacred, a gift from God, brought into full being at birth. Our tradition does indeed cherish life—the life and dignity of the pregnant woman facing this decision. If we are passionate about life, and passionate about choice, and are willing—like Rabbi Matuson in Shreveport—to place ourselves at risk in order to uphold these sacred values, we cannot allow our adversaries to hijack the language of faith and respect for life.

I learned this week of a couple, who after a prolonged period of trying, discovered they were pregnant. The news of her pregnancy spread through their families. Their excitement was contagious. Their deep desire to bring life into this world was finally being fulfilled. I can only imagine their horror when a routine test revealed severe and irreparable birth defects in the fetus. Their dream turned into a nightmare. What should they do? Carry the fetus despite the risks? Abort despite their visceral reaction against it? Theirs was a heart-wrenching choice that they needed to make in consultation with physicians, family, clergy, and their own conscience. Ultimately, they made their choice privately. I do not know what Karen and I would choose if we were faced with a similar crisis. Of one thing I am certain, however: I would hope that Karen and I would have the right to make the choice for ourselves, protected, rather than impeded by the state.

The problem today is that our national leaders are trying to take that right away. We can no longer assume that Roe v. Wade is inviolable. Despite the 1973 court decision, the Supreme Court has since upheld a state’s right to determine when, where, and how women can exercise the right to have an abortion. In some states, physicians working in publicly funded clinics are prohibited from even mentioning abortion as an option. Other states require a 24-hour waiting period from the time the woman arrives at the clinic until the abortion is performed. The Republican Congress with the firm backing of the Bush administration is trying to pass legislation that will grant civil rights to a fetus—treating it as a human being protected by law—no matter if it is six months, six weeks or six hours old. Additional pending legislation, if passed, will ban outright late-term abortions. This legislation rejects the intent of the mishna text that permits a late-term abortion in order to save the mother’s life. And it seems that the litmus test for new appointment to the circuit and appellate courts is a judge’s position on abortion.

It is not far-fetched to believe that an anti-choice administration, congress, and judiciary could reverse thirty years of protection for reproductive rights. Yet no matter what laws are in place, women will continue to seek abortions—legal or not. And the nightmare scenario of the back-alley abortion could once again become a reality.

The battle to preserve a woman’s right to choose needs to be fought in the halls of congress, and in non-violent demonstrations, not on the streets in front of clinics. Our nation has already experienced too much trauma and violence. The murders of two people at a Brookline Massachusetts family planning clinic in 1994; the murder of Dr. Bernard Slepian, a Jewish physician from Buffalo New York, shot in his home by radical anti-choice terrorists. Clinic bombings, hate-filled gantlets traversed by frightened women.

If we are passionate about this issue and want to preserve Roe v. Wade and keep abortion safe, legal, and accessible, then we need to engage in a protracted battle advocating pro-choice policy, endorsing pro-choice political candidates, and lobbying for pro-choice judges. I am grateful for our determined congressional leaders who support reproductive rights for women. I am grateful for advocates who work with groups like the NARAL: Pro-Choice America, the National Organization of Women, and Planned Parenthood.

These women and men devote their lives to protecting the rights, freedom, physical and psychological well being of women. I am proud of faith organizations like the Religious Coalition for Reproductive Rights and the various arms of the Reform movement that have expressed their religious values by defending a woman’s right to choose. If we care about this issue, then we need to lend our support to these organizations.

With so much of our attention focused on Iraq, North Korea, and the economy, anti-choice legislation is moving forward barely noticed. It is imperative today that we write our elected representatives expressing our concern for the future of reproductive rights. Those on the religious right will not cease fighting to overturn abortion rights. We must not cease to protect those rights.

This sermon will be posted on the Beth Am website early next week. I will include links to organizations that are working to preserve women’s reproductive rights. I hope that all of us will educate ourselves, learn how to become advocates, and join these organizations.

I am proud of Rabbi Matuson, and am grateful for his bravery demonstrated in that small Louisiana town in 1990. I pray that I won’t ever live in a community where I will have to risk my safety and well-being to defend a woman’s right to choose. But if I do, I hope I will have Rabbi Matuson’s courage, and the support of my congregation to do what is just and right.

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