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

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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