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To be pro-choice means to regard abortion as healthcare and consenting to sex as separate to consenting to pregnancy. Despite the United States’ tumultuous relationship with accessible medical services, since 1973, women and people with uteruses have been able to rely on the protection of Roe v. Wade. They have been secure in the knowledge that, through most of their pregnancy, no government official can force them to carry a child, or become a parent, without their consent.
In light of the recent statute passed in Texas, however, there is a new reality—one that might soon come to your state too.
On September 1, a Texas state law banning abortion “after detection of an unborn child’s heartbeat” (occurring, according to the law’s interpretation, as early as six weeks into pregnancy) took effect. This legislation has spawned local and national outrage, not least because of its unprecedented enforcement scheme. The law is designed to evade the constitution by permitting private citizens to sue any person for “performing,” “aiding,” or “abetting” such an abortion: by allowing it to go into effect, the Supreme Court majority has ruled that such laws, because they do not involve the “state official” named by Roe, do not require judicial scrutiny.
Yet the mechanism used to enact this anti-abortion policy is only one of many concerns. This carefully constructed and dishonest law bans those who are pregnant from having an abortion shortly after a first missed period, long before most know that they are pregnant. The law itself rests on terminology that is not only misleading, but medically incorrect. Specifically, in the law, “fetal heartbeat” is defined as “cardiac activity or the steady and repetitive rhythmic construction of the fetal heart within the gestational sac.” But at six weeks of gestation, physicians specializing in reproductive health attribute that sound to electrical activity—not to a bona fide fetal heartbeat.
As importantly, the law moves Texas ever-closer to being not just an officially Christian state, but one with a particular theology. Many conservative legislators invoke Christian religious principles as a basis for their determination to ban abortion. While signing the Texas law, Governor Greg Abbott said, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.”
Theologically, Jews think about this differently. As Rabbi Danya Ruttenberg put it in a recent Religious News Service article:
Abortion is permitted in Judaism, full stop . . . Abortion is sometimes required if the health of a person is at stake. . . These bills are based on a very specific Christian conception of where life begins that does not conform to Jewish legal understandings. If I, as a Jew, desire or even require an abortion, then I cannot do so because the law of the land is forbidding me—because of a Christian understanding of personhood.
True, fewer than 1 percent of Texans are Jewish. But the United States was ostensibly founded not merely on the principle of religious freedom but on the principle that the state would not favor one religion over another.
In spite of this, many American laws, including this one, institutionalize Christianity as the preferred state religion. Other faiths, however, allow Americans to follow another ethical path. According to a Jewish understanding of personhood, abortion to save the life of the mother—on mental or physical grounds—invariably takes precedence over the life of the fetus.
In fact, the Texas law negates the value of corporeal agency articulated in the Torah, both literally and figuratively: thus, if it affirms one kind of Christian ethic, it violates Judaic law and custom. The Torah endorses life, but understands the complexity of procreation’s relationship to life. It famously establishes the importance of human life and procreation in the Book of Genesis, with God commanding, “Be fruitful and multiply” (Genesis 1:28). The notion of reproduction and bearing children is considered a sacred tenet of Judaism. Nevertheless, the autonomous life of the mother is prioritized over the hypothetical life of a fetus (see Mishnah).
So, what might abortion laws look like if they were informed by Jewish principles? Alternatively: What might abortion laws look like if they were not informed by a Christian understanding of personhood?
In pondering this question, we might first ask: Who gets to make this decision? According to Jewish law and tradition, it is the woman herself who decides whether to pursue an abortion. There is extensive rabbinical discourse on termination, which discusses when “life” begins and whether a fetus should be classified as “human.” According to the Talmud, a primary source for Jewish law, a fetus is considered to be not a separate person, but “part and parcel of the pregnant woman’s body.”
In other words, the fetus has no personhood until the majority of its body has exited the mother. By contrast, there is a lack of dignity and agency afforded to the pregnant person in language used by conservative lawmakers. Women have, for example, been described as “host bodies,” parasitic and grotesque terminology that strips pregnant people of humanity.
In other words, Texas law is built on a framework that puts fetal “personhood” before that of the woman. But Jewish custom, by considering the fetus as an extension of the pregnant body, supports the pregnant person in making the choice that aligns with their mental and physical needs. This is a concept which is integral to secular notions of reproductive freedom and bodily autonomy as well.
As graduate students researching gender and health, healthcare accessibility and equity have long been focal points in our area of study. Because of our current research, which examines Jewish women’s lived experiences in the reproductive setting, the Texas law has hit particularly close to home. In our research, we see how Jewish principles routinely inform the sometimes excruciating reproductive choices that pregnancy can entail. Our rage is reflexive. As we, two Jewish women, write this from the comfort of New York, we are reminded of what it means to have access and autonomy as other women, in Texas and like-minded states, lose theirs.
We feel it is important to emphasize our stake in this debate, not only as Jewish women who have distinct Jewish identities, but also as individuals within a liberal, academic setting that encourages and supports our thinking. We recognize it is a privilege to engage in this discourse at all without fearing for our own bodily autonomy (for now), or for our professional standing. From this privileged location, we are reminded of Jewish values that advocate for personal and communal effort in creating a just society. “What stands out in the entire development of Jewish ethical formulations,” one definition of this just society explains, “is the constant interpenetration of communal and individual obligations and concerns. A just society requires just people, and a just person functions within a just society.”
The Texas law does violence to that just society.
Jessica Bush is a graduate student in psychology at The New School.
Samantha Klein is a doctoral student in clinical psychology at The New School.