Laurie Zoloth. Bioethics. Editor: Bruce Jennings, 4th Edition, Volume 1, Macmillan Reference USA, 2014.
The Jewish discourse of medical ethics is a multi-vocal and contentious one that crosses several centuries of text, traditions, and historical norms in global communities. However, for a tradition in which so much is in contention, and in which maklochat (intense debates) are the normal form of reasoning, the legal and ethical norms surrounding the issue of abortion are relatively less controversial. The Jewish tradition, in general, takes a clear middle path—allowing certain abortions, in certain circumstances, for certain, specific reasons justified by rational moral appeals. Abortion is not absolutely prohibited, as in some religious traditions, nor is it understood as the murder of a fully human person. Ending a pregnancy is understood as regrettable but permissible, or even necessary, in certain instances.
Historical Background
The discussion about reproductive ethics is part of larger discussion about the role of women, the place of families, and the vision of the human future. Thus, it is one of the earliest debates in moral systems that attend to the questions of family life, health care, and community continuity. In antiquity, pregnancy was seen as a moment for celebration but also as a time of grave risk. All early religious responses to the issue of abortion are made in that context, in which the intention is to create and maintain families, but not at the risk of the lives of mothers. As pregnancy became safer, as childhood mortality decreased, and, finally, as the possibility of prenatal diagnosis emerged, the issue of choosing when and under what conditions to have children became a matter for religious concern. Abortion, because it addresses the fundamentally metaphysical question of when life begins, will always be a religious question. For Jews, religion is not a set of external institutional events visited on occasions of crisis or celebration; it 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 concerned with—the inescapable call of the stranger, the constancy of the demand for justice in every interaction, and the significance 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 sanctioned, permitted and sanctioned, 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.
Since the twentieth century, Judaism has had four distinct branches: Orthodox, Conservative, Reform, and Reconstructionist/New Age. For Jews who are not close followers of Talmudic law (those who belong to one of the last three branches noted), the cultural and economic realities of modernity affect religious practice, social justice decisions, and personal ethical norms that tend to raise the issue of women’s authority over their embodied choices and to broadly support arguments that permit abortions. Even within Orthodox Judaism, the issue of abortion and family planning has long been shaped by both historical reality and the essentially permissive tradition that permits abortion for defensible reasons. In Jewish ethics, one considers both the whole of human activity and the whole of the community when making such decisions: Women as well as men are moral agents, with responsibilities and obligations to and within a wider community. The argument for this ethical framework is found primarily in the extensive debate and exegesis of the rabbinic literature, a contentious discourse of 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.), and which continued throughout the medieval and modern period.
In the 1,500 years since the redaction of the Talmud, Jewish law has developed 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 are these shifts more evident than in the rapidly changing field of reproductive health. Nearly all commentators would agree that the concerns of the tradition are specific, and protect four principles:
- To ensure that women are not required to have children because childbirth was seen in the Talmudic period as potentially life-threatening;
- To ensure 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;
- To ensure that sexuality within marriage after producing two children—the halachically required number for men—can be enjoyed without intending pregnancy under certain conditions; and
- 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. The method of reasoning preserves both sides of the debates within the texts, in which there is rarely a history of unanimity; rather, it is a centuries-long, global argument, as Jewish communities in different times and places, with sharply disagreeing authorities, make definitive and, in many 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.
Biblical Text
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 miscarriage occurs because a pregnant woman is injured 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: First, that the event described—a loss of a fetus through miscarriage—which results in the abortion of the fetus—was an accidental occurrence, but was caused by a non-natural intervention; second, that the event was not in the woman’s control, and that the lost fetus has a defined value (since it is, presumably, the property of the her husband); and third, that the being that is “departed” is not a fully human life in the way that the woman is a human life, for while it is clear that a crime of some sort has been committed, it is not a capital crime. What is at stake in the text is whether the woman herself is hurt, for the end of the pregnancy, while a loss, is explicitly not the loss of a life.
The rabbinic texts that emerge far later address the question of permissibility: When can a pregnancy be ended by human action? The response is found in the earliest texts of rabbinic discourse (200 B.C.E.) in the Mishnah. Although clearly it was seen as an emergency option, abortion was nevertheless clearly available and permitted under several circumstances. These commentaries interpret the biblical text noted above, but they do so with two different types of justifying exegetical arguments, both of which allow abortion in some circumstances.
Rodef Argument
The first argument posits that the fetus is in some way a danger to the woman, and thus 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” (Mishnah 6). Here the text assumes three things: first, that abortion is a deliberate moral act; second, that the decision to abort is a joint one, made by the woman and her birth attendant, and it is somewhat in the woman’s hands because she is the “sufferer,” so it is her suffering that calls the question, and it must have something to do with her limits of endurance; and third, that it is a child that is in her womb, but not a child who counts as a nefesh (fully ensouled human person) until a physical event occurs—its head, or “greater part,” is born. Here, abortion is permitted because a women’s life is of more value than the life of a fetus.
This first argument was further developed centuries later by the medieval commentator and physician 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, a being and not merely a part of the woman’s body; that it is a pursuing nefesh (Rodef) in other words, that it is a being that poses fatal risk to the mother; and that since a life is at stake, it is correct to to allow the killing of the Rodef, in this case, allowing for the abortion that would end the deadly pursuit. The basis for Maimonides’s opinion that the fetus is “like a pursuer” pursuing the mother in order to kill her is his belief that the situation falls under the general law of pikuah nefesh (avoiding hazard to life) in the Torah (Hiddushei Rabbi Hayyim Soloveitchik to Mishneh Torah, Hilkhot Rotze’ah 1:9). Ben Zion Uziel in the early modern period extended this argument to include defending not just the mother’s life, but also 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 [life].… 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 interpreted the text to include protection of not just the woman’s physical health, but also her mental health, allowing abortion in the case of a diagnosis of Tay-Sachs disease 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)
Moral Status Argument
In addition to the Rodef justification for the permissibility for abortion, a second line of argument can be found in the text, and it is largely based on the way that Jewish tradition understands a developmental moral status as the defining feature of pregnancy, a principle that gains ground via rabbinical medical science. This tradition emerges from the debates about menstrual blood and the blood of miscarriage. Blood, like all discharges from the human body, presents a ritual problem to be adjudicated by the rabbis, because persons (both women and men) with bodily discharges need to participate in purification rituals before they can rejoin the larger community for prayer. A woman needs to know, for example, whether her bleeding is due to her normal menstrual cycle, in which case she needs to wait two weeks, then immerse herself in a ritual bath (at the mikvah) before resuming sexual intercourse, or due to a miscarriage, in which case she needs to wait for a longer period before immersion in the mikvah. A system emerged in the early rabbinic period (and was carried forward into the present) in which every questionable discharge was collected for examination by rabbinic authorities. Because examination of the expelled contents of the womb after a miscarriage during the first forty days after conception did not reveal a fetal form, the rabbinic authorities deemed that during this period, the embryo had the status of mere water, and thus its existence could not be counted for ritual purposes. The rulings on the permissibility of abortion followed from this understanding of moral status: Abortions during this period could not be opposed. It is for this reason that modern Israeli scientists worked to develop blood tracer tests that could detect chromosomal abnormalities within the first forty days of pregnancy—so that abortions for trisomies such as trisomy 21 (Down syndrome) or 18 (Edwards syndrome) could be allowed.
Ensoulment Argument
A third line of justification develops in entirely another tractate of the Mishnah (Arakin): that abortion is permitted as a health procedure, because a fetus is not an ensouled person. Not only is an embryo in the first forty days after conception considered like water, but even in the last trimester, the fetus has a lesser moral status—it is more akin to a part of a woman’s body than a separate being: “Gemora: 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, cited above)
This proof text introduces an argument that the fetus is simply “not a nefesh,” and therefore is seen as a part of a woman’s body. A later authority, the medieval French scholar Rashi, assumes this is valid because the fetus is not a separate being until the head is born; his argument is based on the Talmudic permission to kill a pregnant woman, even one in the late stages of pregnancy. This argument continues in later response. Indeed, for some commentators, it is unclear whether the child even after birth is fully independent of its mother, with it own separate being and body. For some authorities, the status of the infant remains uncertain for thirty days after birth. Mourning practices for infants reflect this lesser moral status: “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).
Recent Concerns
In the post-Holocaust period, a new and contradictory tradition began to develop as some commentators voiced concerns that an overly liberal abortion practice is inappropriate in the face of declining numbers of Jews, and they urged a more strongly pronatalist stand. Although this position does not emerge from classic halachic sources, it has nevertheless gained some ground in the contemporary period. The argument emerges from all sectors of Jewish thought. Moshe Tendler and David Bleich in the Orthodox world, and Conservative authority Elliot Dorff both advocate for a pronatalist stand, even while clearly supporting the textual realities that permit abortion under many circumstances. Dorff argues that Jews are “a people … in deep demographic 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” (Dorff 1998).
Abortion policies also are linked to other historical and medical changes. Since 2002 extensive genetic testing has been promoted within the Jewish community, allowing for genetic screening for disease carrier status to be standard in arranged marriages for many in the Orthodox community, and to be widely used by Jewish couples of all denominations. Family planning methods have further reduced the need for abortions, which remain legal and defensible within Jewish tradition as a matter of Jewish law and practice. In Israel, abortions are legally defended as a matter of health, and the statutes protect abortion as a personal health care decision.