III. RELIGIOUS TRADITIONS: A. JEWISH PERSPECTIVES

The Jewish discussion of abortion is a multi-vocal one that crosses several centuries of text and tradition. However, for a tradition in which much is in contention, the legal and ethical norms surrounding abortion are relatively less controversial. The tradition, in general, takes a clear middle path—allowing some abortions, in certain circumstances, for specific rational moral appeals. For Jews who are not close followers of Talmudic law, the cultural and economic realities of modernity affect religious practice, social justice and ethical norms, but these norms themselves have been shaped by this largely permissive tradition. In Jewish ethics, one considers both the whole of human activity and the whole of the community as well: Women as well as men are moral agents. This argument is primarily contained in the extensive debate and exegesis of the rabbinic literature, a discourse of contention and casuistic narrative ethics that both determines and discusses the 613 commanded acts named as the mitzvot by the Rabbis of the Talmudic period (200 b.c.e.–500 c.e.)

Jewish law has developed, in the 1,500 years since the redaction of the Talmud, by an ongoing series of responsa to questions about the legal code discussed in the Talmud, called halacha. Difficult cases of social crisis of all types are brought before arbiters and scholars who rule on the facts of the cases, on the methodological principles of logical argument, and on certain key principles of relationships in familial, ritual, civic, and commercial spheres. Each commentator is intellectually tied to those who came previously, and is confronted by changes in context: politics, cultural shifts, and scientific understandings that were not available to previous generations. Nowhere is this more evident than in the rapidly changing field of reproductive health.

Nearly all commentators would agree that it is clear that the concerns of the tradition are specific and protective of four principles:

1. to assure that women are not required to have children, since childbirth was seen in the Talmudic period as potentially life-threatening;
2. to assure that the temptation to immerse oneself in a life of study is avoided and that every man is married and in a family with children;
3. that sexuality after reproduction of two children—the required number—could be enjoyed without reproductive consequence; and
4. to allow both women and men to pursue, within limits, options for family planning based on a complex assessment of personal needs and social context.

The discursive method of Jewish ethical reasoning follows from close analysis of key texts—but it is never a history of unanimity—rather, it is a centuries-long argument with sharply disagreeing authorities making definitive and, in some cases, contradictory statements. A review of the development of the internal argument of the classic texts illustrates both the mutability of the tradition and the argumentative nature of the normative debate.

Abortion as such does not appear as an option for women in the Biblical text. There is only one direct reference to the interruption of a pregnancy, and it is a sort of collateral damage: when a woman is hurt as she stands near a fight.

And if men strive, and hurt a woman with child, so that her fruit depart and yet no harm follows, he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. But if any harm follows, you shall give life for life.… (Exodus 21:22–23)

The Biblical text assumes the following conditions:

that the event described—an induced abortion—is an accidental occurrence;

that it is not in woman's control, that the being lost is of value since it is, perhaps, the property of the husband;

that the being that is departed is not a life in the way that the woman is a human life;

that a crime of some sort has been committed, but that it is not a capital crime.

What is at stake is whether the woman herself is hurt—the child's loss is explicitly not the loss of a life.

Later texts then address the question of when an abortion is sought. Is this permitted without direct mention in the Biblical scripture? The response is found in the earliest sources of the Mishneh. Clearly seen as an emergency option, it was nevertheless clearly available under several circumstances.

Two later commentaries interpret the Bible text, and they do so with different types of arguments that allow abortion in some circumstances. The first argument follows the general line of thinking that the fetus is in some ways a danger to the woman, and can be aborted because of the more general rule of self defense: This becomes articulated as the argument called the Rodef (pursuer). This is evident in the following proof text:

If a woman suffer hard labor in travail, the child must be cut up in her womb and brought out piecemeal, for her life takes precedence over its life; if its greater part has [already] come forth, it must not be touched, for the [claim of one] life can not supersede [that of another] life. (Mishneh 6)

Here the text assumes three things: Abortion is deliberate; the decision to abort is a conjoint one and somewhat in woman's hands (she is the sufferer, so it is her suffering that calls the question, and it must have something to do with her stated limits); and that all can agree that a child is in her womb, but not a child who counts as a nefesh (fully ensouled human person) until its head is out.

This first argument is further developed centuries later, by Maimonides:

This, too, is a mitzvah: not to take pity on the life of a pursuer (Rodef). Therefore the Sages have ruled that when a woman has difficulty in giving birth one may cut up the child within her womb, either by drugs or by surgery, because he is like a pursuer seeking to kill her. Once his head has emerged he may not be touched for we do not set aside one life for another; this is the natural course of the world. (Maimonides 1:9)

Maimonides assumes three things: that the fetus is in fact a nefesh; that it is a pursuing nefesh (Rodef); and that a life must be at stake to allow the killing of the Rodef. The reason for the opinion of Maimonides here, namely, that the fetus is like a pursuer pursuing the mother in order to kill her, is that he believed that a fetus falls into the general law of pikuah nefesh (avoiding hazard to life) in the Torah since a fetus, too, is considered a nefesh and is not put aside for the life of others (Hiddushei Rabbi Hayyim Soloveitchik to Mishneh Torah, Hilkhot Rotze'ah 1:9). Ben Zion Uziel, in the early modern period, then extended this argument to include not just the mother's life, but her health.

We learn in this matter that according to the doctors, the fetus will cause its mother deafness for the rest of her life, and there is no greater disgrace than that, for it will ruin the rest of her life, make her miserable all her … Therefore, it is my humble opinion that she should be permitted to abort her fetus through highly qualified doctors who will guarantee ahead of time that her life will be preserved.… (Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat 3:46)

Finally, Rabbi Eliezer Waldenberg in the mid-twentieth century interprets the text to include protection of not just physical health, but mental health, allowing abortions in the case of a diagnosis of Tay Sachs in the child:

One should permit … abortion as soon as it becomes evident without doubt from the test that, indeed, such a baby [Tay-Sachs baby] shall be born, even until the seventh month of her pregnancy … If, indeed, we may permit an abortion according to the Halacha because of great need and because of pain and suffering, it seems that this is the classic case for such permission. And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh. (Eliezer Waldenberg, Responsa Tzitz Eliezer, Part 13, no. 102)

A second line of argument is largely based on developmental moral status, a principle that gains ground via rabbinical medical science. All discharges from the body present a problem to be adjudicated by the rabbis, since persons with discharges need to participate in purification rituals before they can rejoin the larger community. Since examination of the contents of the womb after a miscarriage for the first forty days after conception did not seem to show a fetus, the rabbinic authorities deemed that during this period, the fetus had the status of mere water. Abortions during this period, went the reasoning, then could not be opposed.

A third line of justification develops in entirely another tractate of the Mishneh (Arakin) that abortion is permitted as a health procedure since a fetus is not an ensouled person. Not only are the first forty days of conception considered like water but even in the last trimester, the fetus has an lesser moral status—more akin to a part of a woman's body, than like a separate being.

Gemara: But that is self-evident, for it is her body! It is necessary to teach it, for one might have assumed since Scripture says "according as the woman's husband shall lay upon him" that it [the woman's child] is the husband's property, of which he should not be deprived. Therefore, we are informed [that it is not so].… (Exodus)

This proof text is the introduction of an argument that the fetus is simply not a nefesh and therefore, is seen as a part of a women's body. A later authority, Rashi, assumes this is valid because the fetus is not a separate being until the head is born.

This argument continues in later responsa and it is clear that, even after birth, whether the child is fully independent, with it own, separate being and body, is still an issue: For some, the status of the infant remains uncertain for thirty days.

Because when a child dies within thirty days (being then considered a stillborn and not mourned like a person who had died) it becomes evident only in retrospect that it was a stillborn (nefel) and that the period of its life was only a continuation of the vitality of its mother that remained in him. (Ben Zion Uziel 3:46)

In the post-Holocaust period, a new and contradictory tradition is developing as some commentators have voiced concern that an overly liberal abortion practice is inappropriate in the face of declining numbers of Jews, and urge a more strongly pro-natalist stand. As Moshe Tendler and Elliot Dorff argue, Jews are "a people are in deep demo-graphic trouble. We lost one-third of our numbers during the Holocaust … the current Jewish reproductive rate among American Jews is between 1.6 and 1.7.… This social imperative has made propagation arguably the most important mitzvah of our time." While this position does not come from classic halachic sources, it has nevertheless, gained some ground in the contemporary period.

Religion for Jews is not a set of external institutional events visited on occasions of crisis or celebration—religion is a binding to a commanded life, in which every single daily act of practice and attention is a part of the being of the faithful person. It is the totality of life that Jewish belief is after—the inescapable call of the stranger, the constancy of the demand for justice in every interaction, and the mattering of minute details of daily life. The commanded life is a matrix of competing and complementary and contentious strands. There is both a temporal aspect to the matrix, in that interpretations are the result of more than 2,000 years of discourse, and an analytic aspect in that any act can be judged in a variety of ways. An act can be prohibited but unpunished, prohibited and punished, permitted but not approved of, permitted and accepted, obligatory but with many exceptions, or obligatory in all cases. Hence, much of our understanding about abortion comes not from these texts that describe variations and exceptions, but from the far broader range of normative texts that support a pronatalist family life.

laurie zoloth

SEE ALSO: Authority in Religious Traditions; Judaism, Bioethics in; Population Ethics: Religious Traditions, Jewish Perspectives; and other Abortion subentries

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