Abortion and religious rights

by David Kobrin


In overturning Roe v Wade the Supreme Court ruled that the Constitution does not include any provisions that protect the right to an abortion. This means that state governments can now pass legislation making abortion illegal if they so choose. The question the Court considered in reaching their decision was whether there is anything in the Constitution — or our history as a nation — that supports the right to an abortion. The majority found that there is not; the Constitution is silent on the question of abortion.

However, the Constitution’s “ silence” on abortion is not the only question that needs to be examined when considering whether states can prohibit abortion. There is also the question of the protection of religious rights. The First Amendment to our Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

It’s my understanding that those who adamantly oppose abortion most often do so on religious and moral grounds. For them, it is murder of an unborn person.

One unavoidable consequence of this religious position is that the life of the unborn child must be seen as having priority over the health, well-being, and even, often, the life of the woman carrying the unborn child. That this so seems clear from the many recent state laws prohibiting abortion in almost all circumstances, including rape, and risks to the health of the woman carrying the child, even potentially unto death.

Traditional Judaism, again for religious and moral reasons, sees the question of aborting a pregnancy differently. Judaism gives preference to the woman carrying the unborn person, rather than to the child in embryo. For many centuries the rabbis — spiritual guides, learned teachers, those who lead congregations — have placed the health and well-being of the woman carrying the embryo before that of the child developing in the womb. This does NOT mean that Judaism as a religion favors or advocates abortion. It does mean that, for Jews, when given the dilemma of whether to end a pregnancy, preference in reaching a decision is based on the physical and emotional needs of the pregnant woman rather than the unborn child. Again, this does not mean that Judaism doesn’t care about the unborn child (any more than one could say that those opposed to abortion don’t care about the needs of the woman carrying the child). It is a difference in whose health is seen as having the highest priority.

Doesn’t this, then, make the question of laws for or against permitting abortion an issue of freedom to exercise one’s own religion?

Why should those who hold the religious view that the well-being of the unborn holds preference over the needs of the woman carrying the child have the right to force others to follow their religion? That, after all, is what the recent Supreme Court decision overturning Roe v Wade does. It prohibits Jews from the free exercise of their religion.