In his article entitled, "This Matter of Abortion", David M. Feldman1 begins by discussing the fact that he was asked to testify on behalf of the National Organization for Women (NOW) in the early 1970s when they took the State of New York to court to remove the anti-abortion statutes there.
He asks the attorney for NOW a 'simple' question "Is abortion murder?" The answer to that question greatly impacts the Jewish position on abortion. Given the high regard for the sanctity of life according to Jewish law and tradition that murdering of anyone, even a fetus would be unacceptable (to say the least), Rabbi Feldman goes on to explain that according to Jewish law, abortion is not considered murder. For some rabbis it can be understood as a grave offense and "akin to murder", but not murder in terms of it being a capital offense.
Jewish law mandates that the life and well-being of the mother are paramount. This would include her physical, psychological, and spiritual well being. Since Jewish law does not teach that the fetus is a person (nefesh), but is rather an extension of the mother's body the act of feticide does not constitute a capital offense. One of the arguments given, in support of abortion, is the "pursuer" argument put forth by R. Huna, which states that "a minor in pursuit may be slain to save the pursued." However, even this teaching has its limits since once the head has come forth, he may not be harmed, because one life may not be taken to have another, which is stated in Oholos 7:6.
Another issue which Rabbi Feldman discusses the ensoulment of the fetus. He makes the point of contrasting the Jewish position on the condition of the soul with the Christian position. Christianity, as Rabbi Feldman states, tends to be a "next world" religion while Judaism tends to be a "this world" religion. Jewish tradition does not accept the doctrine of 'original sin' as professed in Christianity so there is no belief that the soul is tainted by virtue of the acts of our first parents, but instead teaches that the soul is pristine at birth. Therefore, there is no concept of the soul needing to be cleansed from a stain which was inherited at conception. Jewish law also teaches that while the child is considered a person once the head or greater part of the body appears, viability is still not certain for forty days for males and eighty days for females.
I found Rabbi Feldman's insights regarding the topic of "right to life" to be interesting. He makes the point that there is a wide spectrum of Jewish positions on the matter of abortion; however, there is consensus with regard to neonatal defectives. He makes the point that prior to birth the welfare of the mother is paramount, but after birth the welfare of the child and mother are equal. According to Rabbi Feldman this makes the Jewish position the real "pro-life" position.
While Rabbi Feldman accepts and professes the Jewish teaching on abortion, he also believes that it should be a last resort. He speaks of procreation as a positive mitzvah, and potential life has the sanctity of its potential. So great is the importance of procreation to Judaism that bachelors or couples who decline to conceive are called "guilty of bloodshed" according to the Talmud.
Abortions for reasons of population control or for economics are not permissible according to Jewish law. Material or career concerns are also not considered to be valid reasons for an abortion, especially since there are those who are ready and willing to adopt and raise those children as their own.
While this next author does not disagree with Rabbi Feldman's position, his approach to the topic is slightly different. Rabbi Immanuel Jakobovits, former chief rabbi of Great Britain2, begins his discussion on abortion by making reference to the fact that physicians, prior to the Roe v. Wade decision, were claiming that the decision of whether or not to legally terminate a pregnancy should be left up to them. Rabbi Jacobovits is opposed to this argument because while it is certainly based upon medical evidence, it is a moral decision and should be left to a metaphysician rather than a physician since this is a moral matter which is beyond the purview of medical science.
Not surprisingly, Rabbi Jacobovits references the same texts with regard to the teaching on abortion which Rabbi Feldman referred to. In reference to Exodus 21: 22-25, he explains how this passage has been interpreted differently by Jews and Christians and how that interpretation has influenced their given position on abortion. The Jewish interpretation is that if two men are fighting, a woman is struck, and she miscarries as a result of this accident the offender is to provide financial compensation to her husband. However, if the woman dies as a result of this accident the offender is to lose his life as well. There is no mention of additional compensation for the loss of the child in that case. Therefore, we see that the killing of an unborn child is not considered murder punishable by death according to Jewish law.
The Christian interpretation of this same passage stems from a mistranslation of the Septuagint where the phrase "no harm follow" was translated as "[her child be born] imperfectly formed." Based upon the distinction between an unformed and formed fetus, this act would be tantamount to murder according to the Christianity. Rabbi Jacobovits, quoting Tiberghien, states that since the Catholic Church accepts the viewpoint that life begins at the moment of conception it does not allow for abortions even if both mother and child will perish, for "better two deaths than one murder."
An argument could be made that since the mother is already baptized and the child could easily be baptized at birth that both of them will actually be saved as a result of the experience. For those who do not accept the Church's teaching of 'original sin' this argument may make little or no sense. While others may not accept the idea of original sin, there is something internally consistent (logically) that if the most important thing is our eternal salvation then both mother and baby are actually earning their reward as a result of what has transpired.
Rabbi Jacobovits also discusses the issue of deformed children in rabbinical writings. He states that the recognition of this problem goes back to 1941; however, all the authorities of Jewish law are agreed that physical or mental abnormalities do not in themselves compromise the title of life, whether before or after birth. This same issue is dealt with in regard to what Rabbi Jacobovits refers to as "monster births". The term refers to children who are born so physically deformed as to appear to be monsters. He states that in the early nineteenth century a famous rabbinical scholar advised a questioner that it was forbidden to destroy a grotesquely misshapen child. He ruled that to kill or even starve such a child to death was unlawful as homicide.
Arguments are given against the destruction of defective children. Based upon the principles already laid out, modern day rabbis are unanimous in condemning abortion, feticide, or infanticide to eliminate a crippled being, before or after birth, as an unconscionable attack on the sanctity of life.3 There are serious considerations to take into account such as the possibility that the mother may be rendered sterile as a result of an abortion as well as an increase in maternal mortality. Amniocentesis presents it own challenges to the well being of the fetus and should not be used as a means of determining the fetus' physical condition in order to see if an abortion is warranted.
Since Jewish law places so much importance on the well-being of the mother, the issue of psychological considerations is looked at as well. Psychological hazards to the mother are no less important than a physical threat, so if there is a genuine concern that carrying such a child to term may become such a psychological burden to the mother that she might become suicidal or exhibit violent tendencies a case could be made in favor of therapeutic abortion. However, this fear would have to be very real and supported by competent psychological opinion and based upon previous experiences of mental imbalance. A mother simply saying, "If I end up giving birth to a deformed child I will go crazy" does not, on its own, constitute a psychological imbalance. There are many people who are convinced that they do not have the physical or psychological strength to be able to handle a given situation until such time as they are actually placed in that situation and they find that they are, indeed, able to cope.
Rabbi Jacobovits then goes on to discuss the various abortion laws that were in place prior to January 22, 1973 and many of his comments turned out to be prophetic. In regard to the "cruelty" of the abortion laws, he speaks about the fact that women were facing the prospect of being hunted down like criminals for the rest of their lives. Also, since safe, honorable, and reasonably priced abortions were not legal there was also the problem of deformed children being born since these women are then forced to go some back alley "butcher" for the procedure.
Rabbi Jacobovits points out, quite accurately, that there is a certain element of cruelty in most laws. If one has only a few dollars left in his bank account and the tax bill comes due, the income tax laws are unquestionably "cruel". Adultery laws are considered cruel by a man who has fallen in love with a married woman.
The fact that these laws are considered cruel by some portion of the population is not a justifiable reason for changing them; however, this was obviously not the case in regard to abortion laws. Public moral standards cannot be maintained if there are not sacrifices and restrains on the part of the citizenry in order to enforce those standards.
His prophetic statement was, "If one considers that even with the existing, rigid laws there are well over one million abortions performed annually in the United States (most of them by reputable physicians), it stands to reason that a relaxation of these laws would raise the abortion rate by many millions."4 He goes on to say that even after taking birth control and other stricter controls on abortion in account, the American abortion rate would soar to two or three times present numbers if such liberal policies were implemented.
After thirty six years of the most liberal abortion policies our nation has ever seen the prophetic statement of Rabbi Immanuel Jacobovits has certainly come true. The United States is certainly not alone when it comes to a decrease in the birth rate. In fact, we are doing better than most of our European counterparts. Most, if not all, European countries are not even close to replacement level, meaning that the number of deaths each far outpaces the number of children being born.
When it comes to any position, one of the most important things is that it is logically consistent. The Jewish teaching on abortion certainly is that. While it does not share the Church's view regarding the ensoulment of the child at the moment of conception, one should not conclude that abortions would be permitted for any reason at all. In fact, it is quite the contrary.
Aside from the psychological and physical well-being of the mother, abortion is actually held to be a violation the sanctity of the life of the fetus. As we have seen, there are no provisions made for a woman to be able to have an abortion simply because she may not be able to afford to raise the child or because she simply decided that she does not want to have a child at this point in her life. Such considerations should have been taken into account before she got pregnant instead of relying upon abortion as a means of post-conceptual contraceptive.
When dealing with patients in a clinic setting it is important that one understands their world-view. As a medical ethicist is not my job to impose my viewpoint on others, but to understand what their religion teaches and assist them, if need be, in making the best possible decision based upon those teachings. Judaism cannot be understood outside of their covenant with God. While I am not a rabbi, as a pastoral care provider I am asked to serve as a yedid nefesh, one who accompanies another soul. A major aspect of accompanying this particular soul is to help her to be able to incorporate her decision within her world-view. In order for me to be able to do this, as a Catholic priest, it is essential that I understand her world-view and the teachings of her religion. It is not my place to judge her, but to serve as a caring presence. One need not agree with someone else's world-view in order to be a caring presence. The insights I have gained from examining the teachings of Rabbis Feldman and Jacobovits have given me a greater insight into Judaism's teaching on abortion, particularly from an orthodox Jewish standpoint, which will assist me in my efforts to be of service to those Jewish patients and their families that I work with throughout my ministry as a medical ethicist.
End Notes
1 Feldman, David "This Matter of Abortion" Contemporary Jewish Ethics and Morality: A Reader (ed. Elliot N. Dorff and Lewis E. Newman) NY: Oxford University Press, 1995, p. 382
2 Jacobovits, Immanuel "Jewish Views on Abortion" Jewish Bioethics (ed. Fred J. Rosner and J. David Bleich) Hoboken, NJ: KTAV Publishing House, 2000, 139
3 Jacobovits, p. 144
4 Jacobovits, p. 147
Bibliography
Elliot N. Dorff and Lewis E. Newman (eds.) Contemporary Jewish Ethics and Morality: A Reader NY: Oxford University Press, 1995
Fred J. Rosner and J. David Bleich (eds.) Jewish Bioethics Hoboken, NJ: KTAV Publishing House, 2000
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