With the fate of Roe vs. Wade again in question following the retirement of Anthony Kennedy from the Supreme Court, some Jews have argued in favor of upholding the decision based on claims of religious liberty. That is, since halakhah—even in the eyes of the most Orthodox—not only permits but requires abortion in certain circumstances, a ban on abortion would threaten Jews’ freedom to practice their religion. Mitchell Rocklin and Howard Slugh contend that this line of reasoning perverts the meaning of religious liberty:

The irony of this particular pro-choice argument is that liberal Jews are advancing it even as they are quick to accuse traditional proponents of “religious liberty” of seeking to impose their religious views on America. . . .

The Supreme Court’s Hobby Lobby case illustrates this [point]. The plaintiff, an arts-and-crafts store named Hobby Lobby privately owned by the Green family, sought an exemption from a regulation requiring employers to provide health insurance that covered abortion-inducing drugs. The Greens argued that providing such insurance would violate their religious liberty, and they therefore requested a religious-liberty-based exemption.

The Greens did not argue that abortion-inducing drugs should be outlawed, that their employees should be prohibited from buying such drugs, or that the government could not require other employers to purchase such insurance. The Greens made a much more modest claim: they should not be required to participate in a process that they considered sinful. The Supreme Court ruled in favor of Hobby Lobby, finding that the government had not proved that exempting employers with sincere religious objections would prevent it from achieving its goal: ensuring that women had access to the drugs in question. The law continued to apply to the vast majority of Americans, and the government was free to fill the gaps through other methods. . . .

This brings us back to abortion. Too many Jewish pro-choicers have, in contrast [to the Greens], demanded a blanket constitutional right to abortion in virtually all circumstances. They insist upon such a permissive abortion regime because, in some circumstances, Jewish law may permit or require a mother to procure an abortion. But they are not arguing that they would need specific religious liberty-based exemptions from an abortion ban. Nor are they arguing that a state may achieve its goal of protecting the life of the unborn, so long as it does not unnecessarily infringe on their religious beliefs.

Even if the agreement with Hamas to secure the release of some, and possibly all, of the remaining hostages—and the bodies of those no longer alive—is a prudent decision for Israel, it comes at a very high price: potentially leaving Hamas in control of Gaza and the release of vast numbers of Palestinian prisoners, many with blood on their hands. Nadav Shragai reminds us of the history of such agreements:

We cannot forget that the terrorists released in the Jibril deal during the summer of 1985 became the backbone of the first intifada, resulting in the murder of 165 Israelis. Approximately half of the terrorists released following the Oslo Accords joined Palestinian terror groups, with many participating in the second intifada that claimed 1,178 Israeli lives. Those freed in [exchange for Gilad Shalit in 2011] constructed Gaza, the world’s largest terror city, and brought about the October 7 massacre. We must ask ourselves: where will those released in the 2025 hostage deal lead us?

Taking these painful concessions into account Michael Oren argues that they might nonetheless be necessary:

From day one—October 7, 2023—Israel’s twin goals in Gaza were fundamentally irreconcilable. Israel could not, as its leaders pledged, simultaneously destroy Hamas and secure all of the hostages’ release. The terrorists who regarded the hostages as the key to their survival would hardly give them up for less than an Israeli commitment to end—and therefore lose—the war. Israelis, for their part, were torn between those who felt that they could not send their children to the army so long as hostages remained in captivity and those who held that, if Hamas wins, Israel will not have an army at all.

While 33 hostages will be released in the first stage, dozens—alive and dead—will remain in Gaza, prolonging their families’ suffering. The relatives of those killed by the Palestinian terrorists now going free will also be shattered. So, too, will the Israelis who still see soldiers dying in Gaza almost daily while Hamas rocket fire continues. What were all of Israel’s sacrifices for, they will ask. . . .

Perhaps this outcome was unavoidable from the beginning. Perhaps the deal is the only way of reconciling Israel’s mutually exclusive goals of annihilating Hamas and repatriating the hostages. Perhaps, despite Israel’s subsequent military triumph, this is the price for the failures of October 7.