Rabbi Brian Immerman
Yom Kippur 5782 – September 16, 2021
“Choose life,” we read in our Torah this morning, “so that you and your children may live.”
I choose life, every day and as such I am solidly pro-life. I strongly believe that as an individual and society we have a responsibility to help people live healthy lives. As someone who is pro-life I believe that we should have universal healthcare. We should provide universal pre-k and childcare so that all people can choose to both work and have children. We should raise the minimum wage and continue to increase the payments we are sending to families of children through the bi-partisan pandemic relief act, which many experts have described as the most important way we have addressed child poverty in decades. No child or adult should go hungry, no person should have to live on the streets. Pro-life means I care about and will work to improve the health and well-being of myself and other people.
Being pro-life does not only mean that women should be forced to carry a fetus to term no matter the consequences to herself, how the fetus was conceived, or the health of the fetus.
Of all of the issues in our country about which we are divided, I understand those who are opposed to abortion the most. For those who believe that a fetus is a person and therefore terminating a pregnancy is murder, it is hard to convince otherwise. While we pray a woman making her own decisions about pregnancy are joyful and beautiful, depending on the situation it can be painfully difficult, excruciatingly sad, or even life-threatening.
Jewish views of the status of a fetus originate in Genesis 2:7, “God formed man from the dust of the earth. God blew into his nostrils the breath of life, and man became a Nefesh Chaya, living being.” Later in Exodus 21:22 we read “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning.” Here the penalty is not the same for murder, which would be death, instead it is based upon a financial understanding of the value of that fetus had it been born. These texts set a precedent in Jewish law that an unborn fetus is not considered to be a person.
I should note that the New King James Version, based upon the Greek Septuagent, translates Exodus quite differently beginning “If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no harm follows,” This translation allows some Christian interpreters to declare that because her fetus was delivered without harm, the penalty is monetary, whereas if the text had read that the fetus had died, the penalty would be death and therefore we should consider a fetus a person. Christianity is far from monolithic and the King James Version is not the standard text across all denominations. Yet the idea that a fetus is a person has become a major part of conservative Christian denominations over the past 60 years.
Returning to Jewish thought, by the time of the Mishnah in 200 CE, Jewish law overtly permits abortion with disturbingly graphic language: “If a woman is having trouble giving birth, they cut up the child in her womb and bring it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out,” referring to the head and shoulders, “one may not touch it, for one may not set aside one person’s life for that of another.”
Rashi, writing in 1100 CE, accepts this position and further adds that “With regards to woman who is experiencing difficulty giving birth and is in danger: It is taught in the Mishnah that “the midwife extends her hand and cuts it up and extracts [the pieces];” as the entire time that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother.” In the last two centuries Jewish scholars have allowed the woman herself to decide when her life is in danger, whether it puts her in physical, mental or financial danger now or in the future.
This matters to us, as Jews when we seek guidance in our faith tradition to help guide our own decisions. However, Jewish texts, the King James Version or any other religion should not form the basis for the ongoing debate about reproductive choice in our country. The Jewish and Christian understanding of abortion centers around the understanding of one word in a 4000-year-old text and other considerations about the sanctity of life and health. The laws of the United States of America should not be formed from biblical texts, but rather should be based upon our collective values as a nation by loving our neighbor and stranger and allowing a woman to make her own decisions based upon her own circumstances and beliefs.
I could continue talking directly about abortion, including the positive impact it has on child poverty and child welfare since Roe vs. Wade in 1973. I could point to the fact that pro-life means caring about a woman’s life, a mother’s life, a toddler’s life, a teen’s life, and an adult’s life IN ADDITION to a fetus. This law is terrifying not only because prohibits a woman from her legal right to an abortion but because it turns ordinary citizens into informers and rewards them for doing so. Let us move to examine these far reaching yet familiar consequences.
This Texas law does not criminalize abortion – in fact the patient herself would suffer no consequences. Instead, anyone who participated, from the doctor to the nurses to the janitorial staff to the driver or even a friend who helped the woman into the car could be liable for a civil penalty of $10,000 paid not to the state, as would happen in a criminal offense, but to the person who filed suit.
When this reached the Supreme court earlier this month, it was challenged not only for the constitutionality of the law, which will take much longer for our Judicial system to process, but for the very context of the law itself. A five justice majority decided to permit the law to go into effect. Dissenting, Chief Justice Roberts wrote that “The statutory scheme before the court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
This fact chills me to the core. It recalls the darkest time in modern history for the Jewish people as documented by Holocaust survivor Hannah Arendt z”l. In her seminal 1951 work “The Origins of Totalitarianism,” she argues that the early tendency of a totalitarian regime is to draft private citizens to conduct “voluntary espionage,” so that “a neighbor gradually becomes a more dangerous enemy than officially appointed police agents. ”
Robert Gellately, a Holocaust scholar has written extensively on the subject of citizen “denunciations” of their neighbors. Gellately’s research leads him to the same conclusion as Arendt, even arguing that the real power of the Gestapo itself was deputizing the public to act as informers – encouraging ordinary citizens to turn over their neighbors because of antisemitism, hatred or profit.
Gellately notes that citizen “denunciations,” as he calls them, didn’t begin with informers turning over Jews. He explains that the Gestapo first employed this tactic when it became illegal to listen to non-state radio. When the masses are convinced something is right and are deputized to enforce the laws, they did so at alarming rates, accounting for almost 90% of all cases in the illegal-radio arrests. The Gestapo continued to encourage citizens to inform on their neighbors as the Holocaust progressed.
This is not the Holocaust, to be clear, but the fact that the Texas law was written to encourage people to sue their neighbors while insulating the state from responsibility sets a dangerous precedent. Not only is the enforcement of the law relegated to citizens, but it would also allow states to create laws outside of those set by the federal government.
Chief Justice Roberts additionally writes in his dissent that this law could have far reaching consequences, “both in this particular case and as a model for action in other areas.” The fact that it could serve as a model should be a warning to both democrats and republicans. Laws modeled after the Texas law could serve the agendas for both liberals and conservatives alike.
In the New Yorker two weeks ago, Jeannie Suk Gersen writes that “Not all of the other possible areas stand to be exploited by conservative legislatures. In fact, with the…Supreme Court likely controlled by a conservative majority of six Justices for at least the next decade, Texas’s scheme could give Democrats direct inspiration for legal guerrilla warfare—if the enforcement mechanism it innovates is not ultimately found unlawful.” Gersen pontificates on these potential areas of interest to Democrats, including violating civil rights, polluting the environment, committing sexual assault—or even not wearing masks, social distancing, or getting vaccinated.
Laws circumventing federal statutes could create two very different societies on a state-by-state basis within our Union, further polarizing our divided nation.
If this law stands, the consequences will be chilling – permitting states to circumvent the rights of the people in accordance with their own beliefs, both conservative and liberal, and causing neighbor to turn against neighbor. As of now, almost all providers have ceased abortions in Texas forcing woman to either continue their pregnancy or, if they can afford it, seek clinics outside of Texas. The lawsuits challenging this law will certainly make their way through state and federal courts, which could take months or years.
We should all be pro-life – we should all be concerned with the welfare of babies, children, teens, adults and those in their golden years, from cradle to nursing home. We should work to ensure that no matter the circumstances that one is brought into this world they have access to not only the basic needs of food, shelter and clean water, but to quality education, safe and loving communities, and a chance to succeed like everyone else. If during their lives they want to make choices about their own bodies, it should be up to them.
We can also be pro-life by choosing to build relationships with our neighbors who share our views and those who don’t in order to build tolerance and acceptance, instead of fomenting hatred and division.
“Choose life,” we read in our Torah this morning, “so that you and your children may live, by loving, obeying, and staying close to Adonai your God.” Love comes first, and I pray that we enter 5782 prepared to open our hearts even further with love and compassion for our for all.
 Deut. 30:19-20
 Mishnah Oholot 7:6
 Rashi on Sanhedrin 72b:13
 Arednt, Hannah. The Origins of Totalitarianism. Pg 422
 Gellately, Robert. Backing Hitler . OUP Oxford. Kindle Edition. Introduction (loc 305)
 Gellately, Robert. Backing Hitler . OUP Oxford. Kindle Edition. Chapter 8: Enemies in the Ranks
 Gersen, Jeannie. The Manifold Threats of the Texas Abortion Law. The New Yorker. 9/5/21 https://www.newyorker.com/news/our-columnists/the-manifold-threats-of-the-texas-abortion-law
 Deut. 30:19-20