The conviction of a man in Kansas last week who assassinated in church a physician who performed abortions has once again pushed the issue of abortion onto the public consciousness. Of course there are legal, medical and moral issues concerning abortion, and strong feelings on both sides. I have had the opportunity in the past to discuss some of those issues with Dr. Steinbach. One of those issues is touched upon in today’s Sidra, in the Decalogue, in the commandment - “You Shall Not Murder.” This morning I would like to do two things. To quickly review the secular law on the subject – but more importantly in some detail, to explain the Jewish religious point of view on abortion.
Before I do that let me say that in all my years as a rabbi in this congregation only one woman has consulted me as to the Jewish view before making her own decision. And that woman was not even someone that I spoke to face to face. It was rather a phone call from a member of another congregation who was reluctant, she said, to talk to her own rabbi. So I don’t over estimate my own influence in these kinds of practical religious and moral questions. What did I say to this woman? What would I have said to other women had they consulted me about the Jewish point of view?
First, a quick review of the areas Roe vs. Wade, the decision by the Supreme Court in 1973, adjudicated and those it left open for religious conscience. The court by a seven to two vote held that any prohibition of early abortion was an unconstitutional invasion of a woman’s right to privacy which it said was established in the Constitution. In doing that the court set three major guidelines. A) For the first three months abortion must be left to the judgment of the patient and her doctor, B) During the second trimester the state may regulate abortion procedures in ways that are reasonably related to maternal health, and C) In the last three months when an unborn child might be able to live outside the womb, the state may forbid an abortion “except where it is necessary in appropriate medical judgment for the preservation of the life or the health of the mother.”
In other words, it is only after a fetus reaches the state of “viability,” capable of independent life the court said, that the state can constitutionally step in to protect the life of the unborn child. In all that, the court carefully skirted the question of when an unborn child actually becomes a human person with a legal right to live. It said “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer.”
So that is where religion comes in and the Sixth Commandment comes in. That is where I as a rabbi weighed in with one woman in my forty-years but would have to in many other cases if they had asked me.
That abortion is included under the Sixth Commandment is a theological principle of the Catholic church (classical Christianity). Why? Because Catholicism believes that the fetus is endowed with the soul from the moment of conception, and that is the primary reason why the Catholic church opposes abortion. The argument of “reverence for life” came later as an add-on to ensoulment. Conservative Christians of other denominations folded abortion under the prohibition of murder, without the theological issue of ensoulment. At the other extreme national polls disclose that vast numbers of American, and I assume many in the Jewish community, are in favor of abortion “on demand.” That argument is of course not theological but humanistic. It argues that a woman has a right over her own body and that includes the right to decide the fate of a limb or a fetus within her body.
So what of Judaism? What would I advise if women asked me, like that anonymous one woman? To begin with Judaism, like most religions, must reject “abortion on demand,” on theological and ethical grounds. The idea that we own our own body is essentially a Pagan doctrine. I do not use the word “pagan” in a pejorative way, but descriptive of belief that separates belief in God from any relationship to one’s body. In Judaism humans have been fashioned according to God in God’s image. We are partners with the Almighty in our bodies and not masters of our bodies. That theological belief has implications for matters like suicide and euthanasia, as well as abortion. With abortion, the halachah does allow that when there is a threat to a full life, a potential life may be sacrificed. Where there is no threat to a full life, though, a potential life must be safe-guarded. What this means in practical terms is that from a Jewish perspective “abortion on demand” is not automatically endorsed.
Let me tell you exactly what the Talmud says. It is quite explicit in allowing an abortion where the continuation of the pregnancy or the process of giving the birth would imperil the life of the mother. The main Talmudic source for the statement is found in the Mishnah, which states “A woman that is having difficulty in giving birth is permitted to cut up the child inside her womb (even on Shabbat) because her life takes precedence.” An actual life prevails over a potential life. Rabbinic commentators explain this on two grounds. First, that the fetus does not become an autonomous person until after birth and secondly, that a woman’s right to self-defense (when her life is threatened) is applicable here.
Rashi, in his comment on the Mishnah explains, “For as long as the child did not come into the world it is not called a living thing and it is permissible to take its life in order to save its mother. Once the head has come forth it may not be harmed, because it is considered born, and one life may not be taken to save another.”
In January of 1977 the Israeli Knesset adopted a law both realistic and humane which incorporated this Jewish model. Under this law, abortion is permitted a) in cases of rape, incest, or extra-marital relations which results in conception; or b) if there is a danger to the life or the physical or mental well-being of the mother and c) if the woman is below 16 or above 40.
In sum, Jewish law and tradition on the issue of abortion rests between the classic Catholic prohibition on all counts and the view of endorsing abortion under all circumstances, as a privilege of the mother. According to Judaism, society has an obligation to educate its members, to recognize that though the abortion of a fetus is not equivalent to murder, it does represent the destruction of a potential life and must never be undertaken lightly.
And that is what I explained to the one woman who inquired prior to deciding, which I would have gladly explained to the others who did not ask me! 11