Judaism and abortion

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In Judaism, views on abortion draw primarily upon the legal and ethical teachings of the Hebrew Bible, the Talmud, the case-by-case decisions of responsa, and other rabbinic literature.

Sources[edit]

The Torah contains no direct references to pregnancy termination, only to miscarriage following violent altercation. The chief biblical source referring to abortion is Exodus 21:22–25 concerning the man who inadvertently strikes a pregnant woman, causing her to lose the pregnancy. The attacker is not liable for homicide for the death of the fetus, but if the woman dies, the man is liable for her homicide.[1] The reference reads:

And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined ... But if any harm follow, then thou shalt give life (nefesh) for life (nefesh) ...

The Mishnah reference in Oholot 7, 7 does not refer directly to abortion. It does refer to a case of life-threatening childbirth and, if the birth is partial or the head has not yet emerged, the fetus can be killed to save the life of the woman (see pikuach nefesh). The tractate has been subject to debate.

Genesis 9:6 says

Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man.

The Talmud (Sanhedrin 57b) understands this verse to be talking about the killing of a fetus;[citation needed] that is a fetus is considered to be alive with regard to the prohibition against murderer and all are warned not to kill him. The fetus however, although being considered "alive" to the extent that his or her life is protected, is not considered to be fully alive to the extent that if it endangered the mothers life it takes precedence. Thus if a pregnancy risks the life of the mother the Rabbis rule that the mother's life takes precedence and that the child may be aborted so as to save the mother's life.

Early rabbinic Judaism[edit]

In mainstream rabbinic Judaism, the Biblical verse is one of several key texts that substantiate the later rabbinic prohibition on abortion, albeit not as murder. Owing partly to this verse, rabbinic law or halakhah sanctions abortion under some circumstances, namely for medical reasons. In principle, Judaism does not regard the fetus as a full human being. While deliberately killing a day old baby is murder, according to the Mishnah, a fetus is not covered by this strict homicide rule.[2] In the reading of Biblical homicide laws, rabbinic sages argue that homicide concerns an animate human being (nefesh adam from Lev. 24:17) alone, not an embryo... because the embryo is not a person (lav nefesh hu).[3] However the Talmud (Sanhedrin 57b) says that a fetus is included in the Noahide prohibition of bloodshed (distinct from homicide) that is learned from Genesis 9:6 that states (in a direct translation from the Hebrew); He who spills the blood of man in man shall have his blood spilt. The Talmud interprets "the blood of man in man" as to include a fetus, which is the blood of man in man. Things that are prohibited under the Noahide laws are also prohibited to Jews.[4] The penalty of having his blood spilt, in regard to Jews, is interpreted by Maimonides as referring to a punishment by the hands of heaven, and not by the courts.[5]

A core text in rabbinic law crystallizes the status of the fetus. The Mishna explicitly indicates that one must abort a fetus if the continuation of pregnancy might imperil the life of the woman.

If a woman is in hard travail, one cuts up the offspring in her womb and brings it forth member by member, because her life comes before the life of her foetus. But if the greater part has proceeded forth, one may not set aside one person for the sake of saving another.[6]

According to the text this can be done until the point of yatza rubo (יָצָא רֻבּוֹ), that "the greater part has proceeded forth".[7] This is taken to refer to the emergence of the baby during childbirth.[8]

In Talmudic law, an embryo is not deemed a fully viable person (bar kayyama), but rather a being of "doubtful viability" (Niddah 44b). Hence, for instance, Jewish mourning rites do not apply to an unborn child. The status of the embryo is also indicated by its treatment as "an appendage of its mother" (ubar yerekh 'imo Hullin 58a) for such matters as ownership, maternal conversion and purity law.[9] In even more evocative language, the Talmud states in a passage on priestly rules that the fetus "is considered to be mere water" until its 40th day.[10] In another passage the Talmud speaks of a "moment of determination" and a "moment of creation" in regard to different stages of the fetus.[11] Rashi explains that the moment of creation is when bones and arteries begin to form[12] and in other places he says that the "moment of creation" is at the 40th day.[13]

Later authorities have differed as to how far one might go in defining the peril to the woman in order to justify abortion, and at what stage of gestation a fetus is considered as having a soul, at which point one life cannot take precedence over another.

Medieval and pre-Modern Judaism[edit]

After the Talmudic period, Jewish views on abortion become more refined, and diverse, as rabbinic literature expanded and Jewish philosophy developed. Maimonides, notably, justified the requirement to abort a pregnancy that threatens the woman's life not because the fetus is less than a nefesh (human being), as the Talmud held, but rather through the principle of the rodef or pursuer, "pursuing her to kill her." Schiff argues that the Maimonidean view is "unprecedented" and "without doubt, this hitherto unexpressed insight had dramatic potential ramifications for the parameters of permissible abortion." Meir Abulafia and Menachem Meiri reaffirm Rashi's view.[14]

Maimonides codified in the Mishneh Torah that the definition of murder according to the Noahide Laws includes a person who kills "even one unborn in the womb of its mother," and adds that such a person is liable for the death penalty. The killing of an embryo is also recognized as murder in the Talmud Sanhedrin 57b: "A heathen is executed..for the murder of an embryo..Because it is written, Whoso sheddeth the blood of man within [another] man, shall his blood be shed. What is a man within another man? An embryo in his mother's womb." Another explicit reference to abortion is in the Zohar, where it is likewise forbidden.

In regard to life-risking pregnancies, Jewish scholar Rashi said that a fetus is not a viable soul until it's been born, and killing it to save the woman is permitted. Maimonides supported the ruling using din rodef (Hebrew: דין רודף‎), thus likening an endangering pregnancy to the fetus killing the woman.

The question of the fetus's viability is addressed in two sources in the Talmud: in Yevamot 69, 2 the fetus in the first forty days of pregnancy is likened to water, "עד ארבעים יום מיא בעלמא"; in Nida 8, 2 the fetus is recognized from the second trimester, three months into the pregnancy, "וכמה הכרת עובר ... שלשה חדשים".

Jewish law permits abortion in order to save the life of the mother. Various Jewish scholars have expressed additional lenient stances on abortions under specific circumstances. These include contemporary scholar Eliezer Waldenberg, who argued in favor of abortions in cases of serious birth defects or extreme mental or psychological danger to the woman.

Another reason to prohibit abortion is found in the Talmudic commentaries known as the Tosafot. The Tosafot argued that abortion is forbidden to Jews because it is forbidden to non-Jews under the Noahide laws. "A gentile is culpable for the death of a fetus, while a Jew is forbidden to cause its death but is not culpable."[15] Here the Tosafot follows the statement in the Talmud (Sanhedrin 59a) that there is nothing that is prohibited to the Noahide that is permissible to Jews, that Jews are not permitted actions that are forbidden to gentiles, though the (theoretical) punishment for violations would apply only to gentiles.[16][17] Relying on such reciprocal logic, the Tosafot also hold that, since Jews are permitted therapeutic abortions for the sake of maternal life, then Noahide law likewise allows non-Jews to undergo therapeutic abortion. Given this near parity, rabbinic law prohibits Jews from assisting gentiles with forbidden abortions, for which the gentiles would be culpable of bloodshed.[18] Viewing Noahide law as a universalizing ethics, Sinclair states: "it is evident that the halakhah in the area of foeticide is shaped by a combination of legal doctrine and moral principle."[19] However, the Tosafot text that applies Noahide law to forbid abortion does not go unchallenged. Another commentary in Tosafot (Niddah 44b) appears to question whether foeticide is permitted.[8][20] However this is not the plain interpretation of that Tosafot.[21]

Scholars of Talmudic and Medieval rabbinic law draw a sharp contrast between the theologies behind Jewish and Catholic opposition to abortion. After favorably reviewing Christian opposition to abortion, Immanuel Jakobovits writes in Jewish Medical Ethics: "In Jewish law, the right to destroy a human fruit before birth is entirely unrelated to theological considerations. Neither the question of the entry of the soul before birth nor the claim to salvation after death have any practical bearing on the subject." Although halakhic regulations works strenuously to protect the unborn child, he says that "none of these regulations necessarily prove that the foetus enjoys human inviolability." In contrast to the neo-Platonic and Christian approach, moreover, Talmudic thought does not "make any legal distinction between formed and unformed foetuses,"[22] after the 40th day. Feldman, likewise, is emphatically comparative, saying: "... while Christianity's position on abortion has raised the moral level of western civilization in this regard and has succeeded in sensitizing humanity to a greater reverence for life, it is obviously comprised, at the same time, of theological postulates which the Jewish community can not share." Feldman also points out that Talmudic debate over whether the soul achieves immortality upon conception, or at a far later stage, has little bearing on halakhic protections for the fetus because, absent a doctrine of original sin, "abortion would not interfere with the immortal rights or destiny of the foetus."[23]

In the standard code of Jewish law, the Shulchan Aruch, therapeutic abortion is permitted; Maimonides's language, speaking of the fetus as pursuer, is included verbatim.[14] A key commentator, R. Joshua Falk, explains that abortion does not trade off one life for another life because the embryo is "not a person" prior to birth.[24] An ordinary abortion is a violation of civil or monetary law, not criminal law, as emphasized by R. Ezekiel Landau among others.[25]

In a key responsum, R. Yair Bachrach is asked whether to approve an abortion for a woman with an illegitimate embryo. R. Bachrach distinguishes early stage from later stage abortions. His reasoning is based on a Talmudic commentary to the effect that Sabbath laws may be violated for a fetus, but only for a later-stage embryo.[26] Several authorities say that Jewish law is less strict for terminating embryos before 40 days.[27] He also concludes that the embryo may be treated as a pursuer rodef, as Maimonides as opined, though simultaneously he upholds Rashi's view of the reduced status of the fetus.[28] Bachrach then offers a novel rationale for denying the requested abortion. He argues the abortion, like certain forms of contraception, frustrates the mitzvah of reproduction and destroys the "seed" needed to be "fruitful and multiply."[29]

With the emergence of modern Jewish identity in the late 18th century, Jewish views on abortion have bifurcated along movement lines, especially between Orthodox Judaism and its more liberal counterparts. By the 20th century, liberal-minded Jews were among those most active in the pro-choice movement. These reproductive rights activists included Betty Friedan, Bernard Nathanson, and Gloria Steinem (however, later in life Nathanson became a pro-life activist and converted to Catholicism). In the U.S., a few politically-conservative Republican Jews also have been pro-choice. A few Jewish groups concentrate on abortion issues, both pro-life and pro-choice.[30]

Orthodox Judaism[edit]

Due to the diversity within Orthodox Judaism, there are a range of halakhic opinions about abortion, though they generally prohibit abortion except in quite limited circumstances. All agree, however, that abortion is not only acceptable but mandatory to save a woman's life.

In 2001, Jewish ethicist Daniel Eisenberg summarized the typical exceptions permitted by some authorities: "Judaism recognizes psychiatric as well as physical factors in evaluating the potential threat that the fetus poses to the woman. However, the danger posed by the fetus (whether physical or emotional) must be both probable and substantial to justify abortion. The degree of mental illness which must be present to justify termination of a pregnancy is not well established and therefore criteria for permitting abortion in such instances remain controversial."[31]

Some Orthodox law deciders (poskim) forbid abortion to prevent the birth of a severely defective fetus.[32]

Nonetheless, on scattered occasions, rabbinic authorities have issued more lenient rulings on abortion. Notably, a recent rabbinical authority holds the minority view that a child with known Tay-Sachs disease may be aborted due to its dismal prognosis. As Eisenberg notes, "Rabbi (Eliezer) Waldenberg allows first trimester abortion of a fetus which would be born with a deformity that would cause it to suffer, and termination of a fetus with a lethal fetal defect such as Tay Sachs up to the end of the second trimester of gestation."[33]

Among Orthodox Jews, abortion has re-emerged as a controversial topic due to the debate over stem cell research. In general, Orthodox Jewish medical ethics tend to favor medical research. Some interest has been articulated to support stem cell research and, in so doing, demonstrate Jewish law's leniency toward abortion of "pre-embryo" cells. Thus, Eisenberg emphasizes that "Rabbi Yechiel Weinberg (author of the Responsa Seridei Aish), clearly held that there is no prohibition of abortion before forty days according to Rabbi Trani's opinion since there is no 'limb' to injure prior to formation of a recognizable fetus at forty days. Rabbi Weinberg himself at first permitted abortion prior to forty days, but later reconsidered his position, not because of the prohibition on abortion, but out of different considerations"[34] In writings on stem cell research, Rabbi Moshe Dovid Tendler has supported the use of pre-embryonic cells, whereas Rabbi J. David Bleich has opposed destruction of stem cells.[35]

Conservative Judaism[edit]

The Rabbinical Assembly Committee on Jewish Law and Standards takes the view that an abortion is justifiable if a continuation of pregnancy might cause the woman severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective. The fetus is a life in the process of development, and the decision to abort should never be taken lightly. Thus, the Conservative position is in line with some of the Acharonim who permit an abortion in case of acute potential emotional and psychological harm.

Before reaching her final decision, Conservative Judaism holds that the woman should consult with the biological father, other members of her family, her physician, her Rabbi and any other person who can help her in assessing the many grave legal and moral issues involved.

Reform Judaism[edit]

Reform Judaism permits abortion, not only when the woman's life is at stake, but also when a pregnancy is "a result of rape or incest; when through genetic testing, it is determined that the child to be born will have a disease that will cause death or severe disability, and the parents believe that the impending birth will be an impossible situation for them," and for several other reasons.[36] More generally, the "Reform perspective on abortion can be described as follows: Abortion is an extremely difficult choice faced by a woman. In all circumstances, it should be her decision whether or not to terminate a pregnancy, backed up by those whom she trusts (physician, therapist, partner, etc.). This decision should not be taken lightly (abortion should never be used for birth control purposes) and can have life-long ramifications. However, any decision should be left up to the woman within whose body the fetus is growing."[36]

The Reform Movement has acted to oppose legislation that would restrict the right of women to choose to abort a fetus, especially in situations in which the health of the woman is endangered by continued pregnancy. This pro-choice position has been linked by some Reform authorities to the value that Reform Judaism places upon autonomy—the right of individuals to act as moral agents on their own behalf. In writing against a legal ban on so-called "partial birth abortion," Rabbi David Ellenson, president of the Reform Movement's Hebrew Union College, has written, "This law as it has been enacted unquestionably diminishes the inviolable status and worth that ought to be granted women as moral agents created in the image of God."

Jews and abortion policies[edit]

In the United States, Orthodox Jews are usually affiliated with the National Pro-Life Religious Council, whereas Conservative Judaism, Reconstructionist Judaism and Reform Judaism are usually aligned with the interfaith Religious Coalition for Reproductive Choice. Nonetheless, Orthodox organizations such as the Orthodox Union and Agudas Yisrael have occasionally partnered with pro-choice organizations when necessary to ensure that abortions will be available to women whose lives are endangered by the fetus.

As feminists[citation needed] or health professionals, Jews have been among those most active on reproductive rights advocacy in the U.S. Generally, Jews have been less involved with the pro-life movement.

In July 2012, Tablet Magazine, an online Jewish publication, quoted the Public Religion Research Institute’s 2012 Jewish Values Report: "American Jews are overwhelmingly in favor of abortion in all (49%) or most (44%) cases. There is little denominational or demographic variation on this level of overall support." The author went on to summarize:

"That’s 93%, folks. The report goes to explain that while opinions are more varied by political affiliation among Jews, over 75% of Jewish Republicans believe that abortion should be legal in all or most cases. From the data, it seems that Wasserman Schultz isn’t saying anything that isn’t reflective of the vast majority of Jewish opinion. In fact, it seems that access to abortion is the issue upon which the most Jews agree." [37]

Polls of Jews in America report that 88% of American Jews are pro-choice.[38]

In Israel, abortion is allowed with the approval of a termination committee if the woman is unmarried, because of age (if the woman is under the age of 17 - the legal marriage age in Israel - or over the age 40), the pregnancy was conceived under illegal circumstances (rape, statutory rape, etc.) or an incestuous relationship, birth defects, risk of health to the mother, and life of the mother. According to the Israel Central Bureau of Statistics report from 2004, in 2003 most abortion requests were granted, with 19,500 legal abortions performed and 200 requests for abortion denied. Reasons for termination went as follows: the woman was unmarried (42%), because of illegal circumstances (11%), health risks to the woman (about 20%), age of the woman (11%) and fetal birth defects (about 17%).[39]

See also[edit]

References[edit]

  1. ^ Jewish Women's Archive: Abortion
  2. ^ Schiff p.27 on mNiddah 5:3
  3. ^ For rabbinic sources, see Feldman 254f. notes 17-19
  4. ^ Talmud, Sanhedrin 59a. See Rashi that Jews never lost their status as Noahides
  5. ^ Maimonides, Mishneh Torah, Laws of Murder 2:3
  6. ^ mOholot 7:8, trans. Sinclair p.12
  7. ^ Oholot 7:6
  8. ^ a b Rosner, Fred (2001). Biomedical ethics and Jewish law. KTAV Publishing House, Inc. p. 178pp. 
  9. ^ Feldman 253f. who also cites Y.K. Miklishanski in "Mishpat ha-Ubar" in Jubilee Volume in Honor of Simon Federbush, Jerusalem 1961, pp. 251–260
  10. ^ Yev. 69b, e.g. Schiff 33f.
  11. ^ Talmud, Sanhedrin 92b
  12. ^ Rashi,Sanhedrin 92b
  13. ^ Yevomot 69b, Psachim 9a
  14. ^ a b Schiff p.60-61
  15. ^ Tosafot on Sanhedrin 59a, trans. Schiff, p.62
  16. ^ Eisenberg compares the prohibition, without punishment, to the status of the treifah.
  17. ^ Rashi in Sanhedrin 59a explains that Jews never lost their status as Noahides
  18. ^ Feldman 260 citing R. Joseph Trani, Responsa Maharit I:97 and I:99.
  19. ^ Sinclair 44ff.
  20. ^ Feldman p. 262.
  21. ^ Tosafot is referring to a case in Talmud Erchin 7a where the mother was executed by a court and the fetus remained alive after its mother's death. The Talmud says that executing a pregnant woman is permissible because the sentence applies to the fetus along with its mother since its part of its mother's body. Tosafot questions whether it would be allowable to kill it even after the mother already died, because of the death sentence that applied to it. See also Igrot Moshe: Yoreh Deah Vol.2:60 that Tosafot does not mean to permit foeticide.
  22. ^ Jakobovits, p.182f.
  23. ^ Feldman p.271, 274 Cp. Schiff p.41f.
  24. ^ Feldman 256 on S.A. HM 425.2, Falk Me'irat Eynayim
  25. ^ Feldman 256 on Noda bi-Yehudah II:HM 59.
  26. ^ Feldman 264f. on Havvot Ya'ir 31 and Tosafot. See Schiff, too.
  27. ^ Eisenberg, note 41 states: "Rabbi Chaim Ozer Grodzinski (Responsa Achiezer, III, 65:14) even entertains the possibility that there may be no Biblical prohibition of abortion before forty days. See also: Tzofnat Paneach 59; Responsa Bet Shlomah, Choshen Mishpat 162; Torat Chesed, Even Ha'ezer, 42:33 all of whom discuss the decreased stringency of abortion within the first forty days."
  28. ^ Schiff, p.73-78
  29. ^ Schiff, p.76, who points out that Bachrach includes women on the ban on destroying seed and he applies it to every stage of pregnancy, regardless of the early embryos' differential status.
  30. ^ E.g., Jews for Life
  31. ^ Eisenberg
  32. ^ R. Moshe Feinstein argued strenuously against R. Waldenberg on the Tay-Sachs case. See, for instance, Sinclair.
  33. ^ R. Eliezar Waldenberg Tzitz Eliezer IX.51:3. See Eisenberg.
  34. ^ Eisenberg also raises the distinction of "pre-embryo" cells. He also notes significant opposition to the 40 day distinction, including R. Yair Bachrach and, more recently, R. Unterman.
  35. ^ Eisenberg at notes 46 and 47
  36. ^ a b URJ
  37. ^ Chandler, Adam. "Jews, Abortion, and Wichita’s Wailing Wall". Tablet Magazine. 
  38. ^ "Religion and the Public Square: Attitudes of American Jews in Comparative Perspective – A Follow-Up Study: Table 2". Cjcs.net. Retrieved 2011-11-16. 
  39. ^ (Hebrew) Central Bureau of Statistics. (August 30, 2005). Patterns of Fertility in Israel in 2004 Nuvola-inspired File Icons for MediaWiki-fileicon-doc.pngDOC. Retrieved February 12, 2007.

Notes[edit]

Jewish sources[edit]