opinion
Judaism Can Show the Way
on Abortion
BY DONNA ROBINSON DIVINE
n the issue of abortion, the war over words is
more lethal than the conflict over deeds. Even
the terms used to describe the opposing sides are
antithetical to each other.

A self-named “culture of life” is arrayed against
so-called warriors for “choice” and a woman’s
right to decide whether or when to end a preg-
nancy. Each side hurls accusations of absolute
immorality at the other, in what is deemed an
existential conflict with dark implications for future
disruption, uncertainty and tragedy.

Surveys indicate, however, that most Americans
think about abortion in ways that are not typified
by heated discourse or morally irreconcilable
positions. They are not engaged in the kind of
debate that pushes politicians to choose one
uncompromising side or another. Ordinary men
and women reject the idea that terminating a
pregnancy is murder, but also believe abortion
should not occur during the third trimester unless
there is a danger to the mother’s life.

Roe v. Wade placed strict limits on abortion
restrictions, and thus it is often held responsible
for stirring up rhetorical hostilities. With sover-
eignty over abortion law returned to the people
through state elections and legislation, politicians
will now have to campaign in a new age without a
Constitutional right at stake.

Candidates still blinded by a discourse that
rewards the ideological extremes may face a
reckoning with voters who see common ground
and want regulations that reflect it. A political
discourse that ignores what the majority of the
people want may be more than out of touch — it is
likely to become bizarrely anachronistic.

That men and women are less interested in
legal reasoning than in access to the services they
need should be obvious. As a result, abortion may
prove to be an issue that is worked out in practice
long before it is worked out in political theory.

Indeed, a consensus that may defy logic or even
sacred principles has, in effect, already evolved,
and it could result in support for regulations that
align with the views of most people. For that
reason, such rules would be far easier to imple-
ment than those proposed in divisive and bitter
political debates.

Consider what might happen if abortion was
declared illegal regardless of circumstance.

A total ban on abortion in states red or blue
would have to depend on, if not outright create,
14 JULY 28, 2022 | JEWISHEXPONENT.COM
enforcement mechanisms to oversee travel, mail
orders and internet searches. It would have to
expand government power to monitor words
and deeds and set boundaries on behavior that
most Americans are likely to resent and perhaps
resist. While Prohibition may not serve as a legal
precedent for the abortion issue, it may prove a
historical paradigm.

It would be an understatement to say that it is
extremely difficult to turn a diverse assembly of
views on abortion into laws across 50 very differ-
ent states. This is particularly the case because the
debate is often defined by ricocheting hashtags
and media horror stories. There is one tradition,
however, that offers both hope and guidance.

Jewish teaching recognizes abortion as an
intimate practice with profound public conse-
quences. The tradition that brought the words
l’chaim (“to life” or, more properly, “for the sake of
life”) into public discourse can hardly be accused
of insensitivity to a culture that embraces life and
promotes fertility.

Yet Judaism also displays sensitivity to the eth-
ical dilemmas surrounding decisions to end preg-
nancies. Because there is no absolute agreement
on abortion in Jewish religious law, those who
deem abortion impermissible generally refrain
from applying their own jurisprudential principles
to particular cases. Rather, women confronted with
an unwanted pregnancy are advised to work their
way to a decision by talking to their own clerics.

Judaism not only recognizes the complicated
stakes involved in ending a pregnancy, it also
acknowledges that people should not be used as
foils to advance a religious ruling, no matter how
principled. Even in a context where population
growth was pivotal to Jewish political interests —
Mandatory Palestine — where Zionist leaders could
not avoid thinking seriously about Jewish birth-
rates, abortion was available and practiced, despite
being outlawed by Great Britain’s colonial laws.

The apparent consensus among men and
women on abortion calls into question the conceit
of a discourse in thrall to the language of rights;
a discourse applied as frequently to the unborn
as to women moments before they are able to
deliver a healthy child. Just as a culture of life can
allow for abortion, so can a right to choose be
replaced by access to services accompanied by
some restrictions.

Most people recognize that giving birth involves
two lives, and that it is critical for those faced with
an unwanted pregnancy to be able to make their
own decision regarding whether both lives can
be sustained. A culture of life is not only about a
heartbeat. JE
Donna Robinson Divine is Morningstar Family
Professor of Jewish Studies and professor of gov-
ernment, emerita at Smith College.

Photo Lloyd Wolf
O



opinion
FIRE Misfires on the IHRA
Definition of Antisemitism
BY DAVID M. LITMAN
tzahiV / iStock / Getty Images Plus
E arlier this year, the Foundation for Individual
Rights and Expression published a piece
explaining its opposition to the legislative adoption
of the International Holocaust Remembrance
Alliance’s working definition of antisemitism.

Unfortunately, FIRE’s position appears to be
based on an understanding of the IHRA definition
that is directly contradicted by what the definition
actually says.

Writing in the context of the American
Association of University Professors’ statement
opposing the adoption of the definition by the
state of Florida, FIRE states, “While the AAUP
consistently opposes legislation restricting how
race and sex can be taught on college campuses,
its opposition to legislation that defines anti-Sem-
itism to include any criticism of Israel is a new and
welcome development” (emphasis original).

The claim that any criticism of Israel is consid-
ered antisemitic under the IHRA definition is false.

The definition itself makes this very clear. In part,
it reads, “Manifestations might include the target-
ing of the State of Israel, conceived as a Jewish
collectivity. However, criticism of Israel similar to
that leveled against any other country cannot be
regarded as anti-Semitic” (emphasis added). The
Florida law adopting the definition includes virtu-
ally identical language.

As the IHRA further explains, the “overall con-
text” of a statement about Israel must be taken
into consideration when assessing whether it
crosses into the realm of antisemitism.

This is simple common sense. For example, a
2006 Supreme Court case, Ash v. Tyson Foods,
Inc., involved the question of whether a decision-
maker’s reference to two Black employees as
“boy” was evidence of discriminatory intent. The
Court of Appeals for the Eleventh Circuit wrote,
“While the use of ‘boy’ when modified by a racial
classification like ‘black’ or ‘white’ is evidence of
discriminatory intent, the use of ‘boy’ alone is not
evidence of discrimination.”
The Supreme Court reversed the Eleventh
Circuit, holding, “Although it is true the disputed
word will not always be evidence of racial animus,
it does not follow that the term, standing alone,
is always benign. The speaker’s meaning may
depend on various factors, including context,
inflection, tone of voice, local custom and histor-
ical usage. Insofar as the Court of Appeals held
that modifiers or qualifications are necessary in all
FIRE has played an important and admirable role in
American society, standing up for one of our most
important democratic values. It’s perplexing that
the group’s position on the IHRA definition rests on
an obvious factual error.

instances to render the disputed term probative of
bias, the court’s decision is erroneous.”
Similarly, under the IHRA definition, references
to Israel are not always evidence of antisemitism,
but it does not follow that references to Israel will
always be benign. This is what the definition rec-
ognizes and addresses.

For example, when “criticism” of Israel takes the
form of typical antisemitic tropes, like depicting
Israeli soldiers drinking the blood of non-Jews or
harvesting their organs, that is not legitimate crit-
icism. It’s simply repackaging the blood libel and
applying it to the Jewish collective that is Israel.

When “criticism” of Israel holds that a Jewish
state shouldn’t exist, but no objection is made
to the existence of any other nation-state in the
world, that is not legitimate criticism. It’s apply-
ing a double standard on the basis of Israel’s
Jewish character.

The IHRA definition recognizes that antisem-
itism has evolved over many centuries. As the
late Rabbi Lord Jonathan Sacks once said, “In the
Middle Ages, Jews were hated because of their
religion. In the 19th and early 20th century they
were hated because of their race. Today they are
hated because of their nation-state, the State of
Israel. It takes different forms, but it remains the
same thing: The view that Jews have no right to
exist as free and equal human beings.”
FIRE has played an important and admirable
role in American society, standing up for one of
our most important democratic values. It’s per-
plexing that the group’s position on the IHRA defi-
nition rests on an obvious factual error.

Hopefully, the organization will issue a correc-
tion. Efforts to protect our freedom of speech and
expression should be based on an honest discus-
sion of what is and isn’t at stake. JE
David M. Litman is a media and education
research analyst at the Committee for Accuracy in
Middle East Reporting and Analysis, or CAMERA.

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