Analysis from Israel

I don’t think something should be news just because the New York Times tries to make it so by publishing an accusatory op-ed. But if you want to write about a topic that almost never makes headlines in Israel, you have to seize any opportunity. And Israel’s abortion policy is worth writing about, because it’s an all-too-rare example of a compromise that gives something important to both sides in a case where Jewish and liberal values clearly conflict.

I admit I once thought otherwise. Raised on America’s abortion wars, in which both sides take absolutist positions, I initially scorned Israel’s policy as institutionalized hypocrisy. And in some ways, it is: Whereas the letter of the law declares abortion legal only in exceptional cases, its application in practice makes abortions available to virtually anyone who wants one. But that tension between theory and practice – or hypocrisy, if you will – is precisely what makes the policy one both sides can live with.

By law, abortions require the approval of a committee comprised of two doctors and a social worker. These committees (which all hospitals have) can approve abortions only in the first 24 weeks of pregnancy; after that, a special exceptions committee must authorize the procedure. And at any stage, approval is possible only if one of the following criteria applies: the woman is under 18 or over 40; the pregnancy stems from rape, incest or an extramarital affair; the baby is liable to be physically or mentally impaired; or the pregnancy endangers the woman’s physical or mental health.

But in practice, as Yair Rosenberg wrote in Tablet last week, 98 percent of all abortion requests are approved; these criteria – especially the one about the woman’s mental health – are flexible enough that some committee can always be found to say yes. Moreover, he noted, since abortions that meet the criteria can be approved anytime, they end up being easier to obtain here than in many liberal European countries, where limits on later-term abortions are much stricter.

The result is that while neither the liberal nor the Jewish side gets everything it wants, both get something important. Liberals get the fact that almost anyone who wants an abortion can get one, even in cases where Jewish law wouldn’t permit it; but they don’t get a legal “right” to an abortion, nor is the fetus deemed merely part of a woman’s body, subject to her full control. Religious Jews get a law which sends a clear message that destroying a potential life is justified only in exceptional circumstances; but in practice, they must accept many abortions that don’t meet that standard.

What Mairav Zonszein decried in her New York Times op-ed was the Jewish side of this compromise. Her own abortion was approved instantly. But because she sees abortion as “pertaining strictly to my own body,” she finds the very idea of needing approval objectionable. And that view is precisely what the law is meant to counter. By requiring women to obtain approval, it effectively says: “You may have an abortion if you want it, but you may not pretend that destroying a potential life is no different than removing a wart from your finger – something ‘pertaining strictly to your own body,’ to be done solely at your own discretion.”

And for most Israelis, the compromise clearly works; that’s why abortion is such a non-issue in Israel. It works for those who want abortions because they can get them. And it works for those who oppose abortions because its message about the value of life seems to be effective. At 117 abortions per 1,000 live births, Israel’s abortion rate in 2013 was lower than in any European country except Croatia. And its fertility rate, even excluding the Haredim, is the highest in the developed world; it’s the only Western country with a birthrate above replacement rate.

The compromise is possible because Jewish law doesn’t believe life begins at conception, and therefore doesn’t consider abortion murder. It’s hard to compromise over murder. But in Jewish law, a fetus is only a potential life – one that shouldn’t be destroyed without cause, but lacks the status of an actual life. Thus Jewish law actually mandates abortion if the mother’s life is endangered; an existing life takes precedence over a potential one. And some rabbis permit abortion if pregnancy endangers the mother’s mental or emotional health.

But similar compromises are possible in other areas where liberal and Jewish values clash, and we should be striving to find them. One possible example is the recent Shabus project to provide bus service on Shabbat in Jerusalem.

As an Orthodox Jew, I’d prefer no buses on Shabbat. Nevertheless, the Shabus project is as respectful of Orthodox sensitivities as any service that violates Shabbat could possibly be. It’s a private organization, so the state isn’t lending its imprimatur to violating Shabbat. It’s a co-op in which people purchase membership and then ride for free, so no money changes hands on Shabbat. And it employs non-Jewish drivers, so Jews aren’t working on Shabbat.

Granted, the organizers spoiled the picture by declaring that they hope to eventually eliminate all these restrictions. But as it stands, it’s precisely the kind of compromise that, like the abortion law, concedes something important to both liberal and Jewish values. For the liberal side, there’s transportation on Shabbat for those who want it, albeit not state-sponsored and more limited than the weekday bus service. For the Jewish side, there’s the effort to minimize Shabbat violations, and more importantly, the fact that Shabbat legally remains a day of rest rather than just another workday.

Both religious and liberal Jews would rather Israel conform fully to their very different visions. But since we have to live together in the same state, finding practical compromises that both sides can tolerate is infinitely preferable to fighting endless culture wars that never resolve anything. The abortion law is a model of what such a compromise should be, and shows just how much tension such compromises can alleviate. Our legislators should strive to imitate it on other issues.

Originally published in The Jerusalem Post on June 22, 2015

2 Responses to A model for resolving clashes between Jewish and liberal values

  • Cartiel Lev says:

    Great article, Evie.

    This is indeed a point that needs to be made: That we can find compromises that will work in practice if we really try.

    There are many examples of this in Israeli society, and I hope that some kind of “Brit Zugiut” compromise will actually be accepted into law to deal with the friction regarding religious marriage and people who don’t want/can’t have religious marriage.

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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