A look back at the Israeli Knesset’s debate on abortion rights in the 1970s sheds light on the relationship between religion and state generally, with implications for other issues being contested in Israel, the United States, and elsewhere.
In Israel, abortions are legal, contingent on approval by a three-member panel. In practice, approvals are granted in the overwhelming majority of cases. In 2020, the most recent year for which data from the Central Bureau of Statistics is available, 99.6% of the 16,492 requests were approved. In 1988, only 89.8% of requests were granted approval. This number increased throughout the early 1990s, and has been above 98% since 2000. (For more information regarding the current criteria and current process: https://www.kolzchut.org.il/en/Termination_of_Pregnancy)
This was not always the case. For nearly the first three decades of the state, abortion was banned by the Criminal Law Order (1936), which had been in effect since the British Mandate. The legal status of abortion was somewhat liberalized not by court decision, but by Knesset legislation. The primary law governing abortion in Israel is the Law to Amend the Penal Code (1977), which established the three-member panel which grants legal approval to terminate a pregnancy, which is still in use today. That law, however, was not the last word on the matter, the Knesset actually backtracked somewhat once it was passed.
The debate in the Knesset in the 1970s focused on issues common to the discourse on the topic throughout the world. In addition, a number of issues unique to Israel’s particular situation as a Jewish state were raised, such as the place of rabbinic authority and the influence on Jewish demographics.
The first, preliminary discussion on the bill that would become the Law to Amend the Penal Code (1977) was held by the Knesset on January 15, 1975. The Prime Minister at the time was Yitzhak Rabin (Alignment). In introducing the bill, MK Haviv Shimoni (Alignment) discussed the prevalence of underground abortions (at that time, according to Shimoni, estimated to be 25,000 to 40,000 annually). In his remarks, he touched on a number of issues pertaining to religion and state. He considered the importance of the natural growth of the Jewish population in Israel, before arguing that unwanted pregnancies are not an ideal way to promote such a goal:
Yet there is great doubt as to whether the birth of children unwanted by their parents is desirable for society.
Shimoni even inserted himself into the debate over Jewish law regarding contraception between the country’s leading religious authorities, the Ashkenazic Chief Rabbi, Shlomo Goren and the Sephardic Chief Rabbi, Ovadia Yosef:
We must note with contentment the important declaration of Rabbi Goren that in terms of Jewish law, there is no objection to a young woman using a pill to prevent pregnancy if the couple has already fulfilled the commandment of being fruitful and multiplying by giving birth to at least one son and one daughter. This statement is immeasurably important, particularly to families with many children, who are traditional and even religious in the vast majority of cases, and did not dare until now to use pills and to plan their families, and forced upon themselves a burden that from the outset they would be unable to bear. Were this opinion to be held by all leaders of the rabbinate, it could well be that the abortion law would lose much of its significance from the start. However, we have quickly come to know that Rabbi Ovadia Yosef saw fit to come out in opposition to this humane and social declaration.
Shimoni summed up the approach of his bill as a compromise approach due to a slew of considerations, among them “ethical” and “moral”:
Due to a number of considerations, including ethical, moral, legal, demographic, psychological, societal, and social, the proposal is not a wholesale legal approval for performing abortions. The approach of the bill is a middle-way: On the one hand, to hold generally accountable one who performs an abortion, yet on the other hand exempting from such responsibility when certain criteria are met as stated in the bill. These criteria include: Firstly, a pretense that justifies the abortion procedure; and secondly, the administration of certain procedures regarding the abortion, which serve to ensure proper medical treatment and proper supervision of such.
The committee created by the 1977 law to grant approval to undergo an abortion consists of three members: an obstetrician-gynecologist, an additional medical professional, and a social worker.
On January 25, 1977, as the legal approval of the bill neared its completion, MK Menahem Yedid (Likud) floated the idea that the local chief rabbi sit on the panel:
MK Yedid: Honorable chairman, in Judaism and in Jewish law there is reference to the health of the woman and her condition. Accordingly, I ascribe special importance to the makeup of the committee including the municipal rabbi, who would be equipped with the clear instructions of Jewish law: when it is permitted, and when it is forbidden.
MK Meir Pa’il (Moked): Why does a rabbi need to be there? Why not a lawyer?
MK Shulamit Aloni (Civil Rights Movement): The rabbi would make the blessing, “Blessed is the One who did not make me a woman.”
The law was adopted by the Knesset on January 31, 1977, and the structure which it created– which did not include a rabbinic presence on the committee– largely continues to this day.
In the original version of the law, one of the reasons that the committee could grant an approval for an abortion if “the continuation of the pregnancy is liable to cause severe damage to the woman or to her children, due to the difficult familial or social conditions of the woman and her environs.” That clause, which gave a sociological justification for approval to terminate a pregnancy, became the target of lawmakers in the ninth Knesset, after Prime Minister Menachem Begin’s Likud took power with the support of religious parties.
Even before the law formally came into effect, an ultra-Orthodox member of Knesset, MK Kalman Kahana (Poalei Agudat Yisrael) suggested scrapping the allowance of abortion based on familial or social circumstances, on the pretense that it violates the status-quo on religious issues. On January 31, 1978, MK Kahana spoke in the Knesset plenum. After noting than an agreement to such limitation on the authority to approve abortions was part of the coalition agreement, he stated:
There have been members of the Knesset who have defined the law as anti-Jewish, as a degree of destruction, God forbid, of the Jewish people. There is nothing more to say than that this law raises a hand against the Torah of Moses. It is one of the more serious cases of opposition to the law of the Torah and violates two of the three commandments regarding which it is said to die rather than transgress: forbidden sexual relations and the spilling of blood.
The proposal failed in its initial vote to be considered by a committee. However, a governmental bill similar in effect to the personal legislation offered by MK Kahana was introduced in that same Knesset nearly two years later, on December 10th, 1979.
In reaction to the proposed limitation of abortion access, MK Haika Grossman (Alignment) spoke about the disconnect between public opinion and the governmental proposal. She pointed out that 60% of respondents to a Hebrew University survey said that the current law was not liberal enough, and that women should be allowed to simply choose to terminate a pregnancy. She blamed this disconnect on the power of the ultra-Orthodox parties within the coalition:
What is happening here is a type of self-deception, the likes of which have not been seen in the history of this house. From now on, as long as the current administration continues to govern, there is no sovereign Knesset, there is no sovereign legislative body, there is the Moetzes Gedolei HaTorah (The Council of the Great Torah Sages). If it so desires – there will be a law; If it does not desire – there will be no law. Beyond that, if it so desires – there will be a government; if it does not desire – there will be no government. The Knesset has been stripped of its authority, gentlemen.
MK Zeidan Atashi (Movement for Change and Initiative) reinforced the same point:
On this subject, the government operates at the dictation of four Knesset members, in total opposition to the good will of the members of the house and the majority of the Israeli public, an act that is in opposition to the principles of democracy and majority rule.
Before final approval of the law on December 25th, 1979, MK Shoshana Arbeli-Almozlino (Alignment) remarked:
If the law passes, members of Knesset, it will be a victory of clericalism over liberal thought.
The bill passed by a vote of 55-50, with two abstentions.
A future post will focus on subsequent legislative activity on this issue.
Analysis:
- The public opinion and public policy regarding religion and state in Israel are drastically disconnected. As noted above, MK Grossman pointed out that 60% of survey respondents thought that the existing law should be made more liberal. Yet, the upshot of that legislative session was to restrict recently-granted abortion rights. Due to the parliamentary structure of the Knesset and the role that small religious parties have historically played in stabilizing coalitions, numerous issues of religion and state reflect this disconnect to this day. Although public opinion polls show again and again that a clear majority – 66% – of the public supports the existence of civil marriage within Israel, it remains the only country in the OECD without freedom of marriage. At least on this issue, the United States seems to have a disconnect of its own. Although laws around the country are likely to become drastically more strict, more Americans currently say that they would prefer less strict abortion laws (30%) than say that they want stricter ones (22%).
- When a law is so out of sync with the public, its very relevance wanes over time. Of course, even if the vast majority are ultimately approved, the fact that women in Israel still need formal approval to terminate a pregnancy provides intrusive bureaucratic hurdles. Yet, the 99% approval rate attests to the fact that the 1979 law, despite the intentions of the religious parties to limit abortions, was not particularly successful in practice. Every year, thousands of Israeli women, whose cases may or may not meet the limited criteria that exist on paper, know what they need to say in order to be approved, and the committees overwhelmingly approve them. Marriage in Israel is an example of a related phenomenon. Theoretically, a Jewish wedding outside of the official, Orthodox rabbinate is punishable by two years in prison for the couple and the officiant. Yet, this never happens, and increasingly more couples choose to wed in precisely such ceremonies. While a flurry of restrictive abortion laws are expected to pass in dozens of states of Roe v. Wade is in fact overturned, Israel suggests that ways for women to maintain access to abortion may become established over time, well-known, and somewhat tolerated.
- The trajectory of religious freedom is non-linear. In Israel, backtracking on reproductive rights happened relatively quickly, whereas in the United State, the Supreme Court seems poised to overturn Roe v. Wade after nearly 50 years. In Israel, we are familiar with this phenomenon on other issues of religion and state. Sometimes, this reversal happens due to elections and the makeup of the coalition. For example, the 19th Knesset, which did not include ultra-Orthodox parties, largely ended military service exemptions for the ultra-Orthodox in March of 2014. The next year, following elections and a new coalition including ultra-Orthodox parties, the 20th Knesset passed legislation deferring such policy changes. Zigzagging has even taken place during the term of a single government. The compromise agreement to establish a new egalitarian prayer space as part of the Western Wall plaza was approved in January of 2016, before being canceled by the same government in July of 2017. This volatility and unpredictability provides fodder for the optimists and pessimists on all sides of these issues in whatever country.
Above all, the major upshot is that even in a reality in which public opinion does not translate directly into legislation, elections still matter. Abortion rights were limited in Israel only as an indirect result of the Likud’s surprise victory in the 1977 elections, led by Menachem Begin, who went on to include the scaling back of abortion rights in the coalition agreement signed with Agudat Yisrael.
The Supreme Court of the United States would have a radically different tilt were the presidential election in 2016 to have gone differently. While religion and state issues are not typically on the ballot in an explicit sense in either country, those who care about such issues should know the implications of their votes and hold elected officials accountable.
