I was part of a conversation earlier about practices on Pesach. Specifically, the conversation touched on the tendency in Judaism, when it comes to the intricacies of halachah, to come up with loopholes that, while technically within the letter of the law, are... creative.
And then I got to musing. (Because really, what else is there to do when you need something to distract from panicking over erev Pesach?)
Loopholes are something of a Jewish specialty, after all. Selling our chametz items to a non-Jew for the duration of Pesach, only for the purchaser to (surprise!) withdraw from the purchase as soon as the holiday is over. Erecting an eruv, a bunch of wires making an entire community technically count as one “private" property. There are plenty of other examples. Some of them are baked into the law from the beginning, others got established at a later point in time.
We’re good at loopholes. And you know, we joke about it among ourselves, and that’s all well and good and fun... but it is also something for which Jews and Judaism are often mocked by outsiders. Sometimes light mockery, sometimes something much more vicious. Sometimes it’s an intentional attack upon our values and ways of life, sometimes it’s just genuine confusion. (I certainly can’t blame anyone for the latter!)
To some, finding and utilizing loopholes comes across as disrespectful. How can we be sincere in our beliefs and practice, they may wonder, if we’re seemingly doing everything we can to get out of following the very laws we claim to live by? Do we really think we’re fooling G-d by claiming the food in the cellar belongs to a neighbor for a week? (Spoiler: No.)
And... I get it. If you look at it from the outside, it likely does come across that way. Hypocritical. Devious. (Very common antisemitic tropes, incidentally. But I digress.) Malicious compliance, etc.
But I'm thinking about it, and it occurs to me that perhaps this is part of what makes Jewish culture, religion, beliefs, and values different from other theological approaches.
This kind of theme is nothing new for us. Jews are, have always been, the questioners. The G-d-wrestlers. It’s in our very name for ourselves, in our texts and our traditions, in our past and in our present.
But the thing is, questioning isn’t about rejecting. Wrestling isn’t about hating. Quite the contrary: It’s a key, fundamental part of who we are, how we express our love for and commitment to the very laws, customs, and G-d that we grapple with. We wouldn’t wrestle so hard if we didn’t care so much.
I think loopholes are part of that.
Look, if what we wanted was to avoid following the rules, there would be a much simpler way of doing so: we could just not follow the rules! Nobody’s forcing us to go through all these complicated practices and procedures. Especially living in the diaspora, what could be easier than to just... not bother? I don’t know about you, but my life would certainly be less stressful this time of year.
But we don’t say, "I’m going to keep my chametz despite what Jewish law dictates, because I want to.” We say, “I’m going to sell my chametz, because Jewish law dictates that I do so.“
And then we say, “Okay, what’s the best way of making this work?”
Of course we don’t think we’re fooling G-d. But that’s okay; we’re not trying to. Loopholes aren’t a way to avoid upholding halachah, they’re a way to support doing so.
It isn’t about undermining the law, it’s about working with it. It’s about knowing the law, studying the law, learning the ins and outs and twists and turns... and engaging with it, partnering with it, making the law work in the community so the community can work in the law.
It isn’t about malicious compliance. If anything, it’s about the reverse: loving compliance, in ways that can help ensure that compliance is and remains a positive.
(Of course, it’s also about not having to permanently dispose of perfectly good chametz. Because let’s be real, that would be a real bummer. Especially if you run a bakery. Jews are practical people.)
...And now, back to cleaning, and cooking, and finishing up the last of the bread in the garage that we won’t be either selling or burning tomorrow. Chag sameach.
Sources on abortion in the Bible, Torah, Talmud and modern Jewish law.
This is the most in-depth treatment of the nuances of Orthodox Jewish law regarding abortion that I've seen floating around the internet thus far. It goes behind a paywall after 4 free articles from the site, so I excerpted most of it below:
***
This essay, then, is a plea to take halakhah at its full complexity and an attempt to at least outline the contours and nuances of the issue. It will take the format of a series of cases—all difficult, sensitive, heartbreaking cases, starting from the Torah and early rabbinic works, and concluding with cases that were the subject of much discussion in recent times. There will be many links and shorthand references to rabbinic works and a brief bibliography at the end. It is, of course, impossible to encompass this subject with anything less than a book-length treatment, but I hope to delineate the significant differences of opinion among halakhists, show how halakhah cannot be shoehorned into the “pro-life” position or the “pro-choice” position, offer some insight into the way that major halakhists handled an issue of such sensitivity and import, and offer a starting point for interested readers to learn and study more about it.
Case #1: Collateral Damage
This case appears in the Torah itself:
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. But if other damage ensues, the penalty shall be life for life. [(Exodus 21:22-23)](Exodus 21:22-23 “(Exodus 21:22-23)”)
If in the course of a fight between two people, a fetus is killed, then the penalty is monetary. If the mother is killed, then the killer’s penalty is death. In other words, the destruction of a fetus is classified as a tort, not a capital crime. And why not? According to the earliest halakhic midrashim, feticide is not considered homicide because a fetus is not considered “nefesh adam,” human life. This understanding is implied in the [Mishnah (Ohalot 7:6)](Ohalot 7:6 “Mishnah (Ohalot 7:6)”) and Talmud, Sanhedrin 72b, and made explicit by the classic medieval commentators: Rashi and Yad Ramah; Nachmanides, Ran, Rashba, and Ritva on Niddah 44a-b; and Me’iri on Shabbat 107b. This approach is likewise taken by later commentators: Maharal on Exodus 21:22; Tosafot Yom Tov and Tiferet Yisrael-Yakhin on Ohalot 7:6; Sema and Arukh Ha-shulhan on Hoshen Mishpat 425; and numerous others.
In contrast, Rabbi Eliyahu Mizrahi argues that feticide is homicide, but that the killer of a fetus is exempt from punishment on technical grounds.
Even according to the majority view, that a fetus is not considered human life, killing a fetus would not be permitted. It is just not homicide.
Case #2: Saving a Mother’s Life
The classic case of abortion in _halakhah is when the fetus must be destroyed to save the mother:
A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life (“hayav”). If most of it had come out already they do not touch it because we do not push off one human life (“nefesh”) for another. [(Mishnah Ohalot 7:6)](Mishnah Ohalot 7:6 “(Mishnah Ohalot 7:6)”)
The most common understanding of this text is that a fetus becomes a person only when its head emerges. Prior to that, it can be destroyed to save the mother; afterward, mother and child have equal claims to life.
The great Maimonides has a different explanation of this mishnah, one that seems to contradict the straightforward meaning of the Talmud. He explains that the unborn fetus may be killed because it is “like a pursuer”; it is analogous to a case where one person is pursuing another with the intent of murder or rape. In such a case, a bystander may stop the pursuer by any means necessary, even killing.
By comparing the fetus to a pursuer, Maimonides seems to be saying that without that justification, feticide is akin to murder. This is how the great twentieth-century halakhist Rabbi Moshe Feinstein understands Maimonides.
Likewise, Rabbi Hayim Soloveichik of Brisk and Rabbi Isser Yehudah Unterman understand Maimonides to be saying that abortion is akin to murder.
At the same time, there are over a dozen other explanations for Maimonides’s curious wording. Rabbi Hayim Ozer Grodzinski, the leading Lithuanian halakhist of the early twentieth century, notes that in our case, the birthing process had already begun, so the fetus has already attained a degree of personhood. Before that, however, even Maimonides would agree that “the fetus is a limb of its mother,” and its destruction is not murder.
Other latter-day commentators (Rabbi Nahum Rabinovich, Yad Peshutah ad loc.; Rabbi Shneur Zalman Fradkin; and Rabbi Isser Zalman Meltzer show that Maimonides uses similar wording, “like a pursuer,” to describe why it is permissible to jettisoned cargo from a sinking ship. The two cases are analogous: just as non-human cargo may be cast overboard to save human beings, so too a non-human fetus may be destroyed to save human life.
Among the classical halakhists who interpreted Maimonides differently are Rabbi Yair Hayim Bacharach, Rabbi Ezekiel Landau, and Rabbi Joseph Teomim. Among twentieth-century authorities: Rabbi Yehiel Yaakov Weinberg (Seridei Esh, Hoshen Mishpat 162:12); Rabbi Abraham Isaac Kook (Ezrat Kohen, omissions, pp. 398-9); and Rabbi Eliezer Waldenberg.
Thus, while the Mishnah states that a fetus may, or must, be killed even just prior to birth to save the mother’s life, the corollary, that a fetus may only be killed to save the mother’s life, is not true except according to a handful of Maimonides’s interpreters.
Case #3: Saving a Fetus on Shabbat
Almost every prohibition in the Torah is set aside in order to save a life. This, then, would seem to be a good test case for understanding the status of a fetus; if it is permissible to violate Shabbat to save a fetus, it would seem to indicate that it is a “life”. If not, then it would be clear evidence that it is not considered a life. In fact, the overwhelming majority of halakhic opinion permits the violation of Shabbat to save a fetus, which seems to strengthen the connection between abortion and murder. Rabbi Feinstein uses this equation to bolster his view that feticide is a form of homicide.
However, several medieval commentators (on Niddah 44a) invoke another Talmudic principle: “Violate one Sabbath in order to observe multiple Sabbaths.” In other words, even if the fetus is not considered enough of a life to warrant the violation of Shabbat, its potential life, the fetus’s potential to observe a lifetime of Sabbaths in the future, gives license to violate Shabbat to save it in the present. This rationale yields the same practical conclusion—Shabbat is violated to save the fetus—but without determining the fetus to be a full-fledged human life. It is on this basis that Rabbi Shmuel Wosner strongly rejects Rabbi Feinstein’s reasoning, concluding that abortion does not even smack of murder and acknowledging that his line of reasoning yields permissive rulings in certain cases.
Case #4: “Dead Woman Walking”
A Mishnah in Arakhin (1:4) states:
If a woman is about to be executed, they do not wait for her until she gives birth. But if she had already sat on the birth-stool, they wait for her until she gives birth.
A fetus is considered part of the mother, and just as she is executed, so too the fetus is executed. Once the mother has “sat on the birth-stool,” as Rashi explains, the fetus has become a “separate body,” and the execution is delayed until after the mother has given birth.
The Talmud asks: “Isn’t it obvious” that the execution should not be delayed on behalf of the fetus? This very question indicates that the Talmud takes for granted that the fetus is not a separate life. The Talmud then explains that the executioners abort the fetus before executing the woman, so as to spare her the indignity of the fetus continuing to move around in her dead body. Here is an instance in which an abortion is performed for reasons other than to save the mother’s life.
If we can sum up what we have seen so far, the balance of evidence we have seen so far indicates that a fetus has an intermediate status: On one hand, it may not be destroyed wantonly, and one must violate Shabbat in order to save it. On the other hand, it is not yet a nefesh, a human life. Notwithstanding several major dissenting opinions, its termination is not homicide, and there are cases where it is permitted even when it will not save the mother’s life.
Do Non-Jews Have the Same Laws? An Important Caveat
There are “Seven Noahide Commandments” that apply, according to halakhah, to all of mankind. One of these seven commandments is homicide, as God said to Noah after the Flood:
One who sheds the blood of man, through man shall his blood be shed. [(Genesis 9:6)](Genesis 9:6 “(Genesis 9:6)”)
Not only is homicide prohibited, but its penalty is death. The Talmud [(Sanhedrin 57b)](Sanhedrin 57b “(Sanhedrin 57b)”) expands the prohibition of homicide to include feticide. Moreover, several pages later, the Talmud posits: “There is nothing that is permitted to a Jew that is forbidden to a gentile” [(Sanhedrin 59a)](Sanhedrin 59a “(Sanhedrin 59a)”). It follows that if abortion is forbidden for non-Jews, it is forbidden for Jews as well [(Tosafot ad loc., s.v. “leika”)](Tosafot ad loc., s.v. “leika” “(Tosafot ad loc., s.v. “leika”)”). The Tosafists also consider the possibility that the corollary is true as well: in cases where Jews may perform abortions, such as to save a mother’s life, non-Jews may do so as well. A responsum of Rabbi Isaac Schorr from 1755 explains the Tosafists’ thinking:
It is unthinkable that the Torah would not consider a fetus to be human life (nefesh) for us [Jews], but for them a fetus would be considered human life. Such a thing cannot be sustained by reason.
A leading contemporary halakhist, Rabbi Eliezer Melamed, takes the logic of the Tosafists even further, ruling that any instance in which abortion is permitted for Jews, it is, by definition, permitted to non-Jews as well.
This view is innovative and far from consensus. Nevertheless, significant minority views can have major public policy implications for how Jews relate to secular abortion law.
Case #5: Tay-Sachs
The last two sets of cases were first addressed as early as the seventeenth century, but have become a major subject of discussion in our times.
The first pertains to instances in which there is concern that the fetus will be diseased or deformed, or has in fact been positively diagnosed with an illness or defect. The case of a fetus diagnosed in utero with the genetic defect that results in Tay-Sachs Disease was the subject of a major twentieth-century dispute between Rabbi Moshe Feinstein and Rabbi Eliezer Waldenberg.
Rabbi Waldenberg (and Rabbi Shaul Yisraeli) went as far as to permit abortion even in cases of indefinite diagnosis, and even when the fetus had the prospect of a very difficult and challenging but long and full life. Rabbi Feinstein prohibited aborting even a Tay-Sachs fetus unless it was “almost certain” that the mother would die of grief otherwise, on the grounds that it is a form of murder.
Others, such as Rabbi Shlomo Goren, Rabbi Yehiel Yaakov Weinberg, Lord Rabbi Immanuel Jakobovitz, and Rabbi Unterman ruled that abortion could be permitted in the interest of the mother’s mental health. In other words, they did not think that a diseased fetus is not worth preserving, but held that it could be permitted to relieve the mother’s suffering in the present.
Several other major recent halakhists, such as Rabbi Shlomo Zalman Auerbach, Rabbi Joseph Soloveitchik, Rabbi Yosef Shalom Elyashiv, and Rabbi Aharon Lichtenstein agreed in principle that only a threat to the mother’s life would warrant abortion. However, the practical record shows something more complex. There are credible reports of Rabbis Soloveitchik and Elyashiv permitting certain abortions in order to spare the mother extreme, if not directly life-threatening anguish. Additionally, there are equally credible reports that Rabbis Lichtenstein and Auerbach referred questions to Rabbi Waldenberg, knowing that he would rule permissively in such scenarios.
A lecture on this topic by Rabbi Hershel Schachter (see minute 26 here), a leading contemporary halakhist in the US, gives a similar indication: He tells a story about Rabbi Auerbach referring a questioner to Rabbi Waldenberg, implying that he, too, believes that such an abortion is not permissible but nevertheless refers petitioners to permissive halakhists.
Case #6: Promiscuous Pregnancy
Rabbi Yosef Hayim of Baghdad (1835-1909), known also as “Ben Ish Hai” after his best-known halakhic compendium, also wrote responsa to communities all over the vast British Empire. On one occasion he was asked whether a woman who became pregnant through an adulterous relationship could abort, as the child born of such a union would carry the taint of mamzerut (illegitimacy) and be forbidden to marry within the community.
Ben Ish Hai does not definitively answer the question. He begins his response by writing: “I do not wish to respond to this issue by giving instructions, neither to forbid nor to permit,” and concludes, “I am not revealing my opinion.”
Before looking at the precedents that Ben Ish Hai cites in the body of the responsum, it is worth noting his reluctance to express his opinion. We saw a similar reluctance with respect to the abortion of deformed fetuses.
The sense is that in cases where the mother’s anguish is the potential grounds for abortion, the answer will depend, to a very large degree, on an honest assessment of the risks to her mental and physical health. Moreover, the stakes of such decisions are very high—potential life and an individual’s long-term health are both at risk.
As such, permission is granted or denied on a case-by-case basis. This is “retail” halakhah — not “wholesale.” Statements akin to Ben Ish Hai’s “I do not wish to respond to this issue by giving instructions, neither to forbid nor to permit” are not atypical.
In the body of his responsum, Ben Ish Hai cites three earlier opinions, two from the seventeenth century and one from the eighteenth:
1) Rabbi Joseph di Trani maintains that abortion is a form of self-mutilation, which is generally prohibited but permitted in the interests of overall health, even when there is no risk to life;
2) Rabbi Yair Hayim Bacharach develops a rationale to permit before ultimately prohibiting on public policy grounds: “to safeguard against the breaches of the promiscuous and those who chase after them.”
3) Rabbi Jacob Emden permits the abortion of a fetus conceived through adultery but prohibits if the mother is unwed or conceived through rape. This is the most idiosyncratic of all views on the general issue of abortion.
Among twentieth-century halakhists, Rabbi Meir Ben-Zion Hai Ouziel (Mishpetei Ouziel, Hoshen Mishpat 4:47), the Sephardic Chief Rabbi at the time of the founding of the State of Israel, rules permissively in the case of a woman who conceived through adultery (but not in the case of an unwed mother). Rabbi Waldenberg also argues for permissiveness to relieve the mother’s anguish.
Those who view abortion as a form of homicide would clearly not permit in such cases. Yet here we return to Rabbi Schachter’s oral presentation. He tells the story of a student in a religious school who became pregnant. The school threatened expulsion. The student was from a non-religious family, and there was concern that expelling her would mean she would fall into a life of non-observance.
Rabbi Schachter implies that an abortion was carried out, though he is coy about whether or not he agrees with the ruling. Like Ben Ish Hai, he intimates that he thinks a lenient ruling is warranted. In this case, the logic of R. Bacharach is inverted: the abortion, paradoxically, was in the interest of preventing the long-term breach of observance. Nevertheless, we once again find a halakhist who is wary of issuing a definitive ruling in cases that are so connected to social and psychological consequences for a particular person in a particular context.
It should go without saying that this treatment did not address all of the relevant halakhic issues. It did not address the key question of whether the stage of pregnancy makes a difference (see, for example, Rabbi Ovadiah Yosef, Yabia Omer, Even Ha-ezer 4:1); differentiate between direct surgical abortion, inducement of early labor, and other methods; or relate to a host of other cases in various gray areas. As noted, a full treatment of this issue would be book-length.
Nonetheless, the complexity of the issue is evident.
We would be wise to take our cues from those halakhists who were reluctant to make definitive pronouncements on the permissibility or wrongfulness of abortion.
Even statements that are true in the vast majority of cases should be avoided out of respect and sensitivity toward that minority of cases that involve some of the most harrowing emotional turmoil that a person can undergo.
The best answer to the question of whether Jewish law permits abortion remains: It depends on the case, so consult with a competent halakhist.
Curious how to keep Kosher for Passover? Why to keep Kosher for Passover? (or why not?) Come join student rabbi Josh to learn more!
Come join this workshop/thinktank where you will be able to have space with Jewish texts, to help you make decisions about your Passover practice!
Suggested Contribution: $10 (Free Tickets Available March 8th)
See below for class description.
Curious how to keep Kosher for Passover? Why to keep Kosher for Passover? (or why not?) Come join student rabbi Josh to learn about Sephardic and Ashkenazi Traditions regarding eating on Passover -- and how the Reform and Conservative Movements have adapted medieval and ancient wisdom to fit our needs today.
And most importantly: workshop how you can enhance your practice over Passover to make your eating more meaningful, intentional, and spiritual.
This class will utilize both large group and small group discussions (chevruta).
All WWT events are open to Jews and non-Jews, those partnered to Jews and people who yearn to become Jewish, and anyone who needs a spiritual learning home.
Please email Josh at [email protected] if you have any specific learning needs- I want to accommodate you as best as I can!
*** Free tickets will be available on Monday, March 8th. Thank you so much to the many builders here at WWT who are committed to creating financially accessible Jewish community with us! **
One who has medications, and another person is sick and needs them, it is forbidden to raise their prices beyond what is appropriate.
Shulchan Arukh, Yoreh De'ah 336:3
In case you were curious, price gauging is against Halachah. In with that, Jewish sources argue that affordable healthcare is a right for all human beings.
Hey PJ! Can you tell me why chicken isn't pareve, but eggs and fish are? Chickens don't produce milk, but with eggs being pareve , hypothetically someone could put an egg/chicken dish, which seems equal to like a cheeseburger or whatever... it's confusing. I have for most of my life kept kosher, but some parts feel nonsensical.
Hi there!
Isn’t that the million dollar question? It honestly sounds very silly to me as well.
My understanding is that because different kinds of meats can also resemble poultry, birds were included in the ‘meat’ category. (Here’s some more info on the subject from MyJewishLearning). A similar debate is raised on Passover with eating kitniyot (additional grains like rice and corn prohibited on Passover by Ashkenazi authorities).
Yes, it’s really confusing. But hey, that’s Judaism for you! ;)
Personal Tanya Day 50: Halachah Innermost Will of GOD (CH23.2)
25-02-10 | Mon, 12 Shevat 5785 | Unity thru Study/Meditate/Speech
Colossians 3:16 Let the Word of CHRIST dwell in you richly, teaching & admonishing one another in all wisdom, singing psalms & hymns and spiritual songs, with thankfulness in your hearts to GOD.
Choux au Craquelin: Cream Puff Cookie Baby | Tim Chin
Choux Pastry:
113g unsalted butter
120ml water
120ml milk
1/4tsp salt
2tsp sugar
125g all-purpose flour
225g or 4 large eggs, beaten
Cook pastry until 124-165C, cool pastry <140C
incorporate eggs in food processor & rest for 30min
Crackling: 100g butter/brown sugar/flour + salt
Bake 400C 12-15 minutes, 325C for 12-15 minutes
Creme Leger Pastry Cream: Custard/Whipped Cream
I remember learning this in high school, in the original Hebrew, along with the Torah source from centuries before it and halachic responsa from centuries later. In case you were wondering, the Torah (first 5 books of the Old Testament) in the book of Exodus talks about a case where a man hits a pregnant woman. If he caused the woman to miscarry, he would only have to pay a fine; however, if he killed the woman he would have to pay “a life for a life.” I don't know how the Christian bible somehow interpreted that over the years as "save the fetus at all costs," but the passage I copied above is a mere snippet of the MASSIVE amount of Torah interpretation and halachic (Jewish law) discussions surrounding pregnancy and abortion in Jewish sources.
Judaism doesn't do "abortions on demand;" it views fetuses as potential lives, and potential lives matter. BUT when it's a question of mom's life vs. baby's life, until that baby's head has been delivered, mom wins. Period, end of discussion. (IIRC this is for a normal birth, and for a breech birth the standard is everything but the head.) Saving existing human life is Judaism's #1 priority in every area. If the potential issue isn't life-threatening but does threaten the mother's general physical or mental health, that means have a chat with a knowledgeable rabbi, and depending on the exact circumstances there's a good chance an abortion will be permitted. (Permitted circumstances typically include the mental anguish caused by carrying a nonviable fetus.) It isn't as cut-and-dried as Rabbi Danya Ruttenberg would have you believe, at least for Orthodox Jews, but we don't come even close to viewing pregnant women as mere vessels for baby production the way some Christians apparently do.
Oh, and I also remember learning that if a woman doesn't want to be pregnant but isn't halachically allowed to get an actual abortion, she is still allowed to do things that would naturally encourage a miscarriage. I'd need to dig up the source for that, but this is a thing that stuck in my brain from when I learned about abortion in Jewish law.
