In Jewish law, life does not begin at conception; it begins at birth. So you might think abortion is easy in Jewish law: no life, no problem. But that’s not right either.
Jewish law requires a reason for abortion—a “justification framework,” in the terminology of the liberal Christian ethicist Rebecca Todd Peters. Jewish law is not “pro-life” in the current American sense. It recognizes plenty of valid reasons for abortion, including a risk of physical, mental, emotional, or even financial harm to the pregnant woman. In the wake of the Dobbs v. Jackson (2022) decision, many Jews have noted that abortion bans violate Jews’ religious freedom, going against Jewish values.
And yet, Jews who call for abortion access tend not to discuss the opposition to abortion in their own tradition. America’s attitudes toward abortion are right now being rewritten, so it’s an important time to ask: why is Jewish law skeptical of abortion? We can’t advocate a better framework in Jewish law or advocate from an authentic Jewish perspective for abortion reform until we answer this question.
Conservative Judaism is a fascinating case study: it holds that Jewish law is binding, and it has simultaneously embraced changes to Jewish law such as gender egalitarianism and queer inclusion. Yet it’s hung on to the justification framework for abortion. Michal Raucher makes a good case that Conservative Judaism ought to give up the justification framework for abortion, which it has maintained despite these other changes. Before we can evaluate her argument, though, we need to look at the philosophical foundations of the justification framework as it plays out in Jewish law. It all comes down to one big idea: potential life.
People are worthy of dignity and respect. This view is popular, as it should be, among both religious and secular ethicists. The complication is that, according to Jewish law, fetuses aren’t people. For forty days, the zygote is simply water. After that, it has an ambiguous status, on its way to becoming a person but not yet there. Because the fetus isn’t a person and therefore does not require the consideration we give to one, late-term abortion can be permissible. The Mishna, a core Jewish legal text codified around 200 CE, says that you can dismember a fetus if there’s no way to deliver it. But there’s a big caveat: if the fetus has mostly exited the womb, it’s now a person, and the mother’s life no longer takes precedence. Jewish law firmly maintains that, because every life is sacred, you can’t kill one person to save another. Once a significant portion of the fetus is delivered, this stricter standard applies.
So far, the view is clear enough: personhood starts at birth but not before. We can already see why Jewish law permits abortion in many cases that those who place personhood before birth would prohibit. The challenge is to explain why, if the fetus is not a person, Jewish law should have any guardrails on abortion. Whatever the explanation is, it can’t rely on personhood.
Enter potential life. The zygote, and then the fetus, can grow into a person. What’s the significance of this fact? It can’t be that the fetus has a right to life. If it’s not a person, it’s unclear how it can have anything like a right. After all, stones don’t have rights, because a stone isn’t the sort of thing that demands dignity or respect. Can the fetus have rights based on its possible future status? Barring abortion or miscarriage, it’ll someday be a person, so maybe we have a responsibility now not to kill it. Along these lines, Don Marquis offers what philosophers often consider the best secular argument against abortion. He argues that killing a fetus, even though it’s not yet a person, takes away its future, which is wrong. But Jewish law can’t appeal to this explanation, because it recognizes lots of reasons to take away the fetus’s future, and it doesn’t take the fetus’s future interests into account. Marquis thinks that what’s wrong about murdering someone is similar to what’s wrong with killing a fetus; but this claim contradicts Jewish law’s justification for late-term abortion to protect the mother if, but only if, the fetus is not delivered (and not yet a person).
So, Jewish law’s concern for potential life can’t stem from facts about the fetus itself. It’s not that we avoid killing the fetus because we owe anything to it; rather, the fetus represents something important, so abortion is nonetheless suspect.
By bringing life into the world, we participate in God’s creation. “Be fruitful and multiply,” we read in Genesis 1. Jewish law takes this directive, p’ru ur’vu, as a sacred mission. In traditional Jewish law, having at least two kids is a commandment, not just a suggestion. Jewish sources have always encouraged having more children if possible, but in the wake of the Holocaust, even into this century, Conservative rabbis have added a demographic justification to the traditional commandment.
In Conservative Jewish discussion of abortion, following traditional sources, potential life matters because it represents God’s creation. Drawing on the Zohar, the central work of Jewish mysticism, Susan Grossman calls the fetus “a work in progress by the Holy One.” Robert Gordis says that potential life is “not to be lightly cast aside,” invoking the Talmudic sentiment that someone who does not procreate diminishes the divine image and even sheds blood.
Procreation is pro-creation.
If our role is to participate in creation by bringing new life into the world, wariness about abortion has nothing to do with harm to an individual fetus, and everything to do with our respect for God and God’s creation. The justification framework encodes a deep judgment: it’s good for us to play this role in creation. Different possible children are, in some sense, fungible until they’re born. What matters is the ultimate commitment to, and participation in, procreation. That’s why Jewish law supports abortion for a 16-year-old who can’t yet care for a child; she doesn’t need to have this child, but she should have some children when she’s ready. At the risk of belaboring the point, procreation is pro-creation.
Potential life, then, raises questions about what kind of people we are, in what kind of relationship to God and the world. God wants us to have kids; when we cannot do so, for any reason, there’s something sad about that, something that disconnects us from our role in propagating God’s creation. In Jewish law, the justification framework for abortion comes not from rights, our own or a fetus’s; rather, it comes from how we ought to be in relationship with God and the world, and how we can tap into what truly matters. That is, to justify the justification framework, Jewish law needs virtue ethics.
Rosalind Hursthouse had had enough. By the late 1980s, philosophers had been debating abortion for decades, focusing on whether the fetus is a person. There were all kinds of ingenious arguments, to be sure, but they missed something crucial: the actual context of abortion. Pregnancy typically results from penile-vaginal intercourse; only women become pregnant; pregnancy typically lasts nine months; childbirth is dangerous; pregnancy is emotionally supercharged for all involved—these are all facts that need to inform our discussion of abortion. An alien anthropologist who didn’t know any of these facts would still be able to understand most philosophical arguments about abortion, Hursthouse observes, and that’s a big problem.
On the one hand, according to Hursthouse, whether we have a right to abortion tells us nothing about whether we should actually do it. I have the right to cut off my own hand, but obviously that’s not a reason to do it, unless cutting off my hand saves me from grave danger.
On the other hand, she says, those who think that abortion is morally no different from a haircut or an appendectomy are deeply mistaken. Our hair or appendix doesn’t get to the core of our relationships with others, our place in the world, and the massive roles that parenthood and childbearing play in real people’s lives, most people’s lives.
These attempts to settle the morality of abortion fail in the same way: they ignore what’s good for us. Virtue ethics, a historically prominent view which Hursthouse played a major role in repopularizing, claims that we cannot figure out what to do without a sense of what’s actually worthwhile. The point of morality isn’t just to figure out what we can or can’t do to people; it’s to make our lives flourish. And that’s just not possible unless we can pin down what kinds of people we should be.
Hursthouse claims that parenthood is an important feature of most people’s lives. Anyone who dismisses it out of hand, she thinks, is simply mistaken about one of the most worthwhile pursuits available to us. Ask any parent, and they’ll tell you about their deep love for their children, how it changed their perspective on the world, and how their children are the most important thing imaginable. How could you look at these facts, Hursthouse maintains, and deny that childbirth and parenting matter, in the sort of way that can make our lives go well?
Now here’s the crucial move: if having kids matters in this deep way, we should be concerned about abortion. Based on these facts about human relationships with children, “the cutting off of a human life is always a matter of some seriousness,” Hursthouse avers, precisely because it cuts off something that can be deeply valuable for us, that can make our lives go well. Other things can matter in the way having kids does—political organizing, perhaps, or alloparenting. But for most people, most of the time, having their own kids is a central feature of their lives and quality of life, and that fact needs to guide our ethical reasoning.
Why is Hursthouse so sure that having kids is worthwhile? It’s not the only worthwhile thing we can do, but she considers parenting the default way to set up a valuable life. (Hursthouse, for what it’s worth, criticizes social conditions such as backbreaking labor and poverty, which prevent people from being able to devote themselves to parenting.) Since Hursthouse is secular, she appeals to the “familiar facts” about parenthood and the depth of our relationships with children. You might worry that she commits the naturalistic fallacy, assuming that what should be the case follows from what is the case. Just because many people find having kids deeply worthwhile, even the most worthwhile activity in their lives, that doesn’t mean it actually is the best or the default way to live a worthwhile life.
But this objection disappears when we turn back to Jewish law. If bringing life into the world is participating in God’s creation, it’s much less mysterious why it’d be valuable. God created us, so God is the source of value; participating in creation is the most valuable activity possible because it connects us with this source of value. Just as baked bread is better than mere wheat, Jews have a long tradition of considering the products of human-divine collaboration to be more valuable than what God initially created. Having kids improves creation in this way, the thinking goes, and represents a true partnership with God to enhance the world.
God created us, so God is the source of value; participating in creation is the most valuable activity possible.
To be fruitful and multiply is to participate in this sacred task of procreating and co-creating with God. Anything that prevents reproduction—abortion, contraception, even divorce—is initially suspect. To be clear, Jewish law permits all of these in very many cases; but the question we’ve been pursuing is why there’s any presumption at all against abortion, once we consider the fetus not to be a person.
Hursthouse’s position illuminates Jewish law, I think: the claim Jewish law makes is that to have kids is part of what it is to live well. Having kids is a worthwhile activity, perhaps the most worthwhile activity. As Hursthouse argues, we can’t make any sense of ethics without committing to what’s worthwhile. In this case, we can’t make sense of Jewish law about abortion without understanding the value it attaches to procreation.
Where does this leave us? Jewish law supports the justification framework for abortion because of its deep pronatalism, its deep commitment that having kids and partnering in God’s creation is irreplaceably worthwhile. So, anyone who thinks we should do away with the justification framework has an obvious target: p’ru ur’vu, the commandment to be fruitful and multiply. If we reimagine p’ru ur’vu, we can reimagine the justification framework.
I strongly support the Jews campaigning for increased abortion access in the US, as they oppose unjust laws that prevent the kinds of abortions that are not only permissible but often mandated by Jewish law. At the same time, I’ve increasingly come to think that, in any conversation about Jewish values and abortion, at best it’s misleading not to discuss pronatalism, and at worst it’s a gross mischaracterization.
We live in an era of rising pronatalism, both secular and religious. For Jews who are uncomfortable with this trend, we need to grapple with the pronatalism in our tradition. Let’s start with abortion. If we focus on when Jewish law permits abortion, and don’t discuss its presumption against abortion codified in the justification framework, we’ve stopped relying on Jewish values; we’re just left with a Jewish veneer.