Oct 27, 2020

By Claire Davidson Miller

Claire Davidson Miller is a member of Americans United’s Youth Organizing Fellowship. She is a senior at Brown University.

Watching Amy Coney Barrett’s confirmation hearing, my roommate remarked, “This might be the first time I’ve felt like a religious minority in America.” I could not agree more. Despite the fact that Jews make up only around 2% of the U.S. population, I have almost never felt alienated because of my Jewish identity. Yet, Barrett’s confirmation hearings underscored how, despite the promise of the First Amendment, the United States often extends preference to Christianity. The experience highlighted for me the ways in which my religious freedom is under attack.

Throughout four days of hearings, Barrett only mentioned religious freedom for Jews once, and she did not discuss Muslims at all. In fact, both Barrett and the Republican senators who threw her softball questions seemed focused on the purported religious freedom of only one American: Amy Coney Barrett.

If the rhetoric surrounding Barrett’s nomination hearing is any indication, the Republican leadership of this country only cares about “religious freedom” when it can be claimed as a tool for those who want to impose their religious beliefs on wider society. Neither Barrett -- nominated to the very court that rules on religious freedom -- nor the Republican Senate majority elevating her there, actually understands what religious freedom means.

Of course, Barrett should never be barred from holding any position because of her personal beliefs. At the same time, however, she should not be given the means to impose those beliefs on others. As AU likes to say, religious freedom is a shield, not a sword.

To speak frankly:  Barrett’s appointment to the Supreme Court threatens the religious freedom of millions of Americans. For instance, she will attempt to use claims of “religious freedom” as a weapon, in order to take away the right to abortion, which would actually impede the ability of Jews to follow our own religious teachings.

Not only does Jewish tradition permit abortion, but in some cases, it actually mandates it. The Talmud (central collection of Jewish law) cites a view that “until forty days from conception” the fetus is considered to be “mere water” and not in any way a living being (Yevamot 69b). Even as the pregnancy progresses, Judaism prioritizes the life of a mother over the potential life of a fetus, with the Talmud telling us that pregnancies can be terminated if they endanger the life of the mother (Sanhedrin 72b). In fact, one of the greatest Jewish sages of all time, Maimonides, permits abortion up until the moment of birth, if giving birth will kill the mother (Mishneh Torah).

While these texts I’ve just cited are centuries and millennia old, contemporary rabbis continue to permit abortion when the pregnancy causes detriment to a mother. One modern expert on Jewish medical ethics, Rabbi Eliezer Yehuda Waldenberg, reinforced the fact that “if there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation.” More importantly, perhaps, he emphasized that “if her health is poor...or to relieve her from great pain, it is necessary to abort the fetus, even if she is not in actual danger” (Tzitz Eliezer 9:51 Chapter 3). Note the wording here: Whether or not a pregnant person’s life is endangered, Judaism not only permits, but requires, the termination of a pregnancy which causes harm to the person carrying it.

Of course, there is no unanimous “Jewish view” on almost any issue, and not all Jews ascribe to the exact teachings on abortion I have laid out here. That being said, there is no Jewish text, law, or teaching to suggest that life begins at conception or that abortion should be outlawed entirely.

It is not that Judaism places a lower premium on life than other religions; in fact, Jewish texts teach us that “one who takes the life of another, it is as though he has destroyed an entire world, and one who saves the life of another, it is as though he sustains the entire world” (Mishnah Sanhedrin 4:5). Take a moment to reflect on that: Judaism considers each person a world unto himself, such that even a single unjust death is equivalent to the destruction of the entire world. This is a value placed on life so high that it is nearly impossible to understand. And it is because Judaism values life over all else, that we know lives must be protected, and that forcing people to carry unwanted or health-endangering pregnancies runs contrary to this principle.

Not only does Barrett seek to misuse religious freedom as a weapon to undermine the rights of millions of pro-choice Americans, but in doing so she will also undercut the freedom for Jews to follow the precepts of our religion.

Consider this a call to action. Not only must we keep fighting to ensure that religious freedom cannot be used to harm others, but we must also broaden our definitions of religious freedom. We must recognize that simply because some claim “religious freedom” as a tactic to undermine certain rights, such as the right to have an abortion, does not mean that all religions hold similar doctrines. We must recognize that those who pushed through Barrett’s confirmation were trying to convince us that it is her religious freedom that is currently under attack, rather than ours. We must not let them succeed.

Photo: Amy Coney Barrett is sworn in during a White House ceremony. Screenshot from C-SPAN