Abortion has become a highly volatile moral issue

Abortion

by Rabbi David Novak, University of Toronto

Abortion has become a highly volatile moral issue in which neutrality proves almost impossible. Jews are no exception. Despite much discussion of abortion in the classical and modern Jewish legal and ethical literature, the issue does not lend itself to the often simplistic positions of "pro-life" or "pro-choice" advocates that one hears every day.

The most basic question on any discussion of abortion is whether the fetus, or unborn child (one's very terminology frequently indicates an underlying moral position on the question), is a human person or not. Two differing Jewish views can be identified on this point. On one side are those who see the fetus as "a human within a human" (Sanhedrin 57b, re Genesis 9:6). On the other side are those who regard the child as a human person only after it emerges from the womb (Rashi on Sanhedrin 72b, re Ohalot 7.6); before that, it is simply a part of the mother's body. Yet accepting either of these views as an absolute moral principle from which to deduce the practical rules is inconsistent with the complexity of the issue and, of the two positions.

According to the first view, it would seem that any abortion ought to be prohibited. In fact, however, abortion is not only permitted but mandated when there is a direct threat to the mother. (We will soon examine just what "direct threat" means.) According to the second view, it would seem that any abortion ought to be permitted. Yet Jewish legal authorities (poskim; sing. posek) have always regarded abortion to be an exception, a dispensation from an act generally prohibited, something permitted only because of extenuating circumstances in a particular case. The fact is that most pregnancies are not considered to pose any direct threat to the mother. Thus, within the normative Jewish tradition, there is no permission of elective abortion based on a woman's "right" to do with her own body as she (or anyone else) pleases.

Those who accept the first view, that the unborn child is a human person, can still justify the direct-threat-to-the-mother exemption by arguing that in situations where two lives are at stake, the moral obligation is to save the one closest at hand--namely, that of the mother, whose life is always more immediate than that of the unborn child within her body. Similarly, those who accept the second view, that the fetus is not a human person, can justify the general prohibition of abortion on the grounds of the proscription of wanton destruction (bal tashhit), which is this case would be self-mutilation. As we saw above, Judaism does not regard anything in the universe as being the property of anyone but God. 

Therefore, one may not destroy anything unless one has been specifically authorized to do so by the Torah for purposes that the Torah regards as acceptable. For example, Jews are authorized to slaughter certain animals, but only in a specified way, and only for the sake of obtaining meat for food or hides to make clothing. (Thus, though vegetarianism is an acceptable Jewish option, it cannot be promoted as a Jewish moral requirement, thereby making the eating of meat immoral.) Jews are also mandated to kill in self-defense, an injunction that has long been used to allow the killing of a fetus that in any way threatens the life of its mother. One is not, however, permitted to kill a fetus for any lesser reason. To do so would be an act of unauthorized mutilation--either self-mutilation or, in the doctor's or another petitioner's case, complicity in self-mutilation, even when done at the mother's request.

So far it would seem that the same practical result emerges whether one holds that the unborn child is a human person or that the fetus is part of its mother's body. But in all legal reasoning about a question of any complexity, practical results are not deduced from one principle alone. Rather, at work is an interplay of several principles. This process is best described by the Talmudic term pilpul, meaning "debate" but more often seen as futile hairsplitting. Yet when pilpul is carried out responsibly, it is a highly subtle form of legal analysis, one that grounds practical conclusions within the interaction of a variety of principles. And indeed, pilpul on this question of abortion does show that some practical differences qualify the two basic views regarding the fetus/unborn child, differences that emerge when the "direct threat" stipulation is specified more precisely.

If the unborn child is regarded as a person, but one whose life can be forfeited for that of the mother because her life is closer at hand than his or hers, then direct threat receives a narrow interpretation, namely, as a threat to the physical life of the mother only. (Indeed, even the source from Ohalot 7.6 mentioned above, which is used by those who argue that the fetus is not a human person, specifically limits the authorization of abortion to cases in which only the dismemberment of the fetus in utero will save the mother from being torn apart by its passage down the birth canal.) In this view, anything less than a direct threat to the mother's life, such as a threat to her overall health or general psychological well-being, would be insufficient to warrant abortion. (It should be noted that this stance would ban virtually all abortions for Jews in the United States, where today less than 2 percent of the abortions performed are for reasons of a direct threat to the mother's life, thanks to a quality of prenatal care unavailable when the rabbinic texts were formulated.)

If the fetus is regarded as part of its mother's body, however, direct threat can gain a broader interpretation. For example, permission for an abortion could then be based on psychiatric considerations such as prepartum depression, especially if there is responsible psychiatric opinion that a continued pregnancy raises the strong probability of suicide in a clinically depressed patient. (Although in fact psychiatric opinion is itself divided on whether abortion in such cases is psychically beneficial of not.) Those who adhere to this view will even authorize an abortion in the case of a fetus that is diagnosed with Tay-Sachs disease, a circumstance of considerable interest inasmuch as Tay-Sachs is an untreatable genetic disease that occurs almost exclusively among Jews. 

The reasoning in such authorizations, significantly, does not address the hopeless life awaiting the Tay-Sachs fetus once it is born. Rather, authorization is based on the question of maternal well-being: that is, it causes the mother (and the father, though his concerns are not discussed as a reason for abortion in the traditional sources) acute psychic pain to know that the child she is carrying is doomed to such a brief, miserable life. Still, even according to this more liberal view, there has to be some objective criterion calling for an abortion, such as clinical depression. Even advocates of this view could not possibly endorse elective abortion as it has been so widely practiced in the United States since the Roe v. Wade decision of 1973. From the perspective of halakhah (Jewish law), the burden of proof is clearly on those seeking an abortion, either for themselves or on behalf (and at the request) of someone else.

Although the traditional Jewish position is generally "pro-life," or at any rate anti-abortion, this does not mean that a traditional Jew must actively support the "pro-life" movement as it is constituted politically in American society today. Indeed, one could well question whether the maternal safeguards so much emphasized in Jewish tradition--especially as interpreted by the more liberal current of the faith--would be sufficiently respected if that position became the law of the land. On the other hand, the "pro-choice" stance is clearly inconsistent with the whole thrust of Jewish tradition, for it is based on a notion of human ownership of the human body, an idea that directly contradicts the Jewish dogma that everything belongs to God--men's bodies, women's bodies, anyone's body (Ezekiel 18:4). Rights over any being, including ourselves, are but limited privileges, Divinely decreed duties must always take precedence in the Jewish tradition.

Admittedly, this outlook contravenes the emotional inclinations and political opinions of many Jews today, especially American Jewish liberals. But in traditional Judaism the Torah takes precedence, irrespective of how few Jews accept its teachings, whether on a specific issue or in general. In the case of abortion, there is little doubt that the inclinations and opinions of may Jews have been strongly influenced by the secular culture in which they live. On the question of abortion, especially, traditional Judaism is countercultural.