Of Slopes and Hopes

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“Oh, come on!” the e-mail read, “What’s a few dead children on the altar of my liberal slippery-slope paranoia?”

Gruesome as the imagery was, I had to smile. The message was intended as a humorous “touché!” from an academic who had originally contacted me in anger. He was not only honest enough to concede his error but perceptive enough to identify its origin.

What had motivated him to write in the first place was a letter published in The New York Times in which, on behalf of Agudath Israel of America, I welcomed the U.S. Supreme Court’s upholding of the federal “partial-birth abortion ban” law.

“How in the world could you write such a letter…?” the professor fumed. “You know perfectly well that the so-called ‘partial-birth abortions’ are almost always only performed when there is a serious, potentially mortal danger to the birth-mother, and that Jewish law is clear and unambiguous in such cases: the life of the mother takes precedence over that of an unborn child…”

The professor is correct about Jewish religious law’s placement of the life of a Jewish mother before that of her unborn child. The Jewish legal metaphor for the fetus is a “rodef,” or “pursuer” – someone in the act of threatening a life, thereby forfeiting all rights to legal protection. But the professor, like many others who reacted with outrage to the High Court’s ruling, had several facts about the particular case in question very wrong.

If a mother’s health is endangered during labor, even a late-term fetus can be legally dispatched in utero; it need never be partially extracted alive and then killed. What is more, the partial-birth abortion law contains an explicit exception in a case (if any in fact exists) where a physician feels it necessary to kill a partially emerged baby to save its mother’s life.

But beyond all that, my correspondent had simply not comprehended the most salient aspect of the procedure at issue: the baby has been born.

At least that is how Jewish religious law – which was what the professor invoked – views a baby whose “entire… head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,” in the federal law’s words.

That being the case, the law, at least from a Jewish perspective, does not address abortion at all. It addresses homicide. Case closed.

Which fact yielded the professor’s admirable, if crudely expressed, admission of error, and his further admission of its roots.

He had taken his cues, he realized, from a gaggle of groups, including several with “Jewish” in their names but judiciaries on their minds. Their members’ nightmares are dominated by the frightening possibility that our nation might one day reconsider its current blanket enshrinement of a “right” to abort. They insist on viewing the world through a tunnel called “Roe,” and are not beyond misrepresenting Judaism in the service of their myopia.

Hadassah Magazine, for one example, in its Summer 2003 issue, quotes unnamed “authorities” to maintain that Jewish law “implicitly assumes that a woman has the right to make her own reproductive choices.” The supplement’s “Jewish Law” section goes on to claim that “restricting access to reproductive services… undermines basic tenets of Judaism.” None of which is true.

To be sure, as my correspondent noted, a right to abortion in certain cases is sacrosanct to observant Jews. Talmudic sources are clear that the life of a pregnancy-endangered Jewish mother takes precedence over that of her unborn child. But that is so only when there is no way to preserve both lives. Although the matter is hardly free of controversy, there are some respected rabbinic opinions that also permit abortion when a pregnancy seriously jeopardizes the mother’s health. But those narrow exceptions in no way translate into some unlimited mother’s “right” to make whatever “choice” she may see fit about the life of the child she carries.

Put simply: The abortion issue is not only about rights but about right – as in “right and wrong.” While Judaism has little to say about rights – it speaks rather about duties and obligations – it has much to say about rightness. And preventing potential life from developing when there is no truly compelling reason to do so, according to the Torah, is wrong.

The laws of civilized societies reflect and shape those societies’ values. And the devaluing of potential human life wrought by Roe has helped devalue all human life in America for over three decades. No, a straight line cannot be drawn between Columbine or Virginia Tech and the ready availability of abortion in the United States. But a society that shows respect for life at its earliest stages cannot but empower respect for life at every stage. The possibility that individual states might one day be permitted to place some limits on the current “no fault” abortion law of the land is not a threat; for some of us it represents a hope, the possible beginning of a more strongly life-affirming era in our land. An era in which we are all a little less concerned with slippery slopes, and a little more about ennobling ideals.

“Choice” is the motto of those who want the fates of fetuses consigned to the decisions of their mothers. Moving from the book of social liberalism to the book of Deuteronomy, though, we find the Torah’s take on choice somewhat different.

“I have placed before you,” the Creator informs us through Moses, “life and death, the blessing and the curse.”

“Choose life,” the verse continues, “so that you and your seed will live.”

This essay appeared in The Forward and is republished with its permission.

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25 Responses

  1. Noam says:

    Dear Rabbi Shafran,

    The analogy is apt in that in both the abortion bill and my proposed burglery bill the price of forbidding the action is higher than acceptable. And, it demonstrates that one can oppose a bill and but not the goals of the bill, something you were unwilling to allow me to do. Your alternative analogy ignores the probable consequences of the abortion bill- that the health and probably life of some women will be imperiled by this bill.

    If you “did not mean to imply that there are no different shades of opposition to abortion or of support of a right to abortion”, why did you write

    “The only debate here is between those who are committed to an unfettered right to abortion (and even infanticide, if it follows closely enough to the birth) and those who feel that treating a fetus as mere detritus is not morally acceptable?”

    The funny reality is that we probably agree significantly more than we disagree. Certainly the statistics show that the common reasons for abortions are not halachically justifiable, and morally indefensible. The freedom of choice is also not an automatic trump. However, ignoring the health of the woman and passing laws which will almost certainly result in making some halachically acceptable abortions unavailable in some situations is also not justifiable.

    Shabbat Shalom

  2. Rabbi Avi Shafran says:

    Dear Noam,

    I’m always happy to agree to disagree, but I have a constitutional intolerance of faulty analogies.

    A burglary-law analogy to what we have been discussing would be not the one you propose but rather a law forbidding and penalizing burglary even when the burglar is acting out of financial hardship. Opposing such a law would indeed be accepting burglary. To be sure, it would not necessarily be accepting it as a fine way of life but it would, ipso facto, be accepting of it in the circumstances defined by the law.

    Likewise, here, the act in question, as I think has been well demonstrated, is effectively infanticide. So those who oppose the law are “defending infanticide” – at least in the situation the law describes (a just-born baby). That does not mean that I believe such opponents of the law would support the raiding of hospital nurseries and the wanton killing of their residents. But they are, by their opposition to the law, in fact, to a degree, tolerating infanticide.

    As to a dichotomy about abortion, I did not mean to imply that there are no different shades of opposition to abortion or of support of a right to abortion. In the very essay that engendered this discussion, I explicitly endorsed the need for a right to abortion in certain circumstances, despite my own opposition to an unfettered right to abortion. Obviously there are many nuances of attitude on the topic. And I have no gripe with anyone who chooses to draw lines in different places than I do. My only complaint is when Judaism is invoked to support “a woman’s right” to decide by fiat whether her fetus should be born or extinguished – an unsupportable contention.

    I am gratified to hear that the CCAR expressed its feelings about abortion. But more important that any such expressions by the CCAR (or by Hadassah or the NCJW), what counts are the actual stances taken by the groups. I have no idea if the CCAR has taken any position on any proposed legislation to limit the unfettered, “for any reason,” right to abortion that Roe bestowed. But the other two groups oppose any such laws. That, to me, bespeaks a de facto endorsement of abortion on demand as morally acceptable, indeed laudable.

    The Guttmacher statistics are much more than “interesting.” They go to the heart of the matter – to the fact that most abortions in the United States are being performed for reasons that are, to put it mildly, less than compelling. One can certainly argue that that fact need not concern Torah-respecting Jews. But I feel otherwise. And so does Agudath Israel of America, in keeping with the judgment of its rabbinic leadership.

    I have no doubt that some who oppose the partial-abortion law are motivated by high ideals. But good intentions, to soften a saying, are not always what matter in the end. That “women’s freedom of choice” automatically trumps potential life does not speak well for our culture. But that the law now states clearly that it cannot trump already-born life is, to me, heartening.
    That said, I do not discount other points of view, even those I cannot “hear.” Let’s hope, though – and I think we can all agree on this – for the coming of a day when the value of life, even its potential, is truly recognized by all.

  3. Noam says:

    Rabbi Shafran- you wrote “The only debate here is between those who are committed to an unfettered right to abortion (and even infanticide, if it follows closely enough to the birth) and those who feel that treating a fetus as mere detritus is not morally acceptable” I used the CCAR quote to demonstrate that there are those who are NOT committed to an unfettered right to abortion, AND feel that treating a fetus as mere detritus is not morally acceptable. This shows that the dichotomy you set up is not accurate. One can oppose the bill and still oppose infanticide. The conditions set by the bill are not the only ones under which infanticide can be banned. One can oppose the details of the bill, but not the intent. As an example, lets say that there is a bill that thieves should be shot on sight. If one opposes the bill, does that mean that they are in favor of burglery? No, of course not. And, it would be silly and untrue to label all of the opponents of such a bill as being opposed to outlawing stealing.

    You brought interesting statistics as to why women have an abortion. However, this does not have any bearing on the mindset of those who who are opposing the bill. The group of women who have an abortion is a selected population who obviously are in favor of abortion, and are going to have all sorts of reasons, including many that you and I do not agree with. However, reasons for a woman to have an abortion is not the same as reasons to oppose the bill. The issue I raised was not reasons women have abortions, but the mind set and rationale of those who oppose the bill- totally seperate issues, and one that is not covered by the statistics you cite.

    I appreciate your closing paragraph, and the time you have spent discussing the issue. We will agree to disagree.

  4. Noam says:

    Bob- do you have any data to back up your assertion?

  5. Rabbi Avi Shafran says:

    Dear Noam,

    Thanks for the url’s. The articles were indeed very interesting, and very telling. But they make me more convinced than ever of the propriety of the partial-birth abortion law.

    The authors all bristle at the intrusion of the law into decision-making to which they feel they alone have the right. As I have noted earlier, a doctor is no more a moral arbiter than a plumber, and laws to prevent doctors from acting in ways that harm others (their patients or others – like their patients’ newborn children) are entirely justified.

    One of the NEJM articles, in fact, begins with an approving citation of Dutch physicians who performed illegal euthanasia on their patients. The same argument made by the NEJM writers about how medical decisions should not be subject to legislative control could be (and have been) made to permit doctors to decide when a life is “not worth living” – a decision that many Dutch doctors, incidentally, often make.

    What is more, and should be needless to say, the NEJM writers are hardly the only medical voices on the issue we’re discussing. In fact, in the Journal of the American Medical Association, two respected doctors note that “[a]n extraordinary medical consensus has emerged that [partial-birth abortion] is neither necessary nor the safest method for late-term abortion.” The American College of Obstetricians and Gynecologists, moreover, said it “could identify no circumstances under which this procedure… would be the only option to save the life or preserve the health of the woman.”

    So what we have are doctors who feel the procedure is unethical and others who either feel it is – or are more concerned with preventing government from intruding on what they consider their sacrosanct ability to decide matters of life and death. In terms of the facts of the matter, though, they are clear: the law at issue prohibits the killing of a (“partially”) born baby, and even includes an exception for saving the mother’s life, should such a situation ever become reality. I can (perhaps, although with difficulty) understand a doctor’s feeling put-upon by such a law. But I honestly cannot understand why any neutral observer with a respect for human life would regard such a law as oppressive or dangerous.

    As to reasons for abortions, I do not need to resort to any supernatural powers. A 2004 survey by the Alan Guttmacher Institute of reasons given by women for their abortions yielded 25% who said they were not “ready” for a child, 7% who felt they were “too immature or young” to have one, 8% who had “problems with [a] relationship or want[ed] to avoid single parenthood”, 19% who “had all the children she wanted” and 23% who felt they could not “afford a baby now.” Feel free to do the math.

    I did not, moreover, portray “anyone opposed to the bill [sic] as promoting infanticide.” I simply stated, and accurately, that infanticide is what this law prohibits, and opposing it is, de facto, opposing the outlawing of infanticide. One can permit infanticide without particularly liking it, and certainly without promoting it. But opposing this law is in fact opposing the outlawing of infanticide.

    I don’t believe I referenced the Reform movement in any way and so I don’t understand the pertinence of your comment about it. But I wonder if the CCAR would back laws designed to limit abortions to cases of true medical need – or that require parental notification in the case of minors (with protections in cases where the girl’s safety may be threatened in some way). I suspect not.

    In closing, I do not define anyone but extremists as extremists, and certainly do not consider you, Noam, one. You are entirely entitled to disagree with my embrace of the partial-abortion law as a societally healthy development, or to disagree with my opposition to the morality (and jurisprudential integrity) of Roe. You are entirely entitled, even, to believe that the partial-birth abortion law somehow compromises women’s health or gratuitously burdens the medical profession. But I am entitled to believe, as I do, that you have provided no convincing evidence of either.

  6. Bob Miller says:

    Public statements of principle by “pro-choice” groups tend to be smoke screens much more moderate than their actual views and practices. Hardly anyone wants to say outright that he/she actually favors abortion as a tool for the mother to do whatever she wants whenever she wants for whatever reason.

  7. Noam says:

    More proof that the sides of this debate are NOT what Rabbi Shafran purports them to be. My guess(please correct me if I am wrong) is that the Reform movement has not signed on as a supporter of this bill. However, the official CCAR site(at the end of a discussion of abortion) states specifically that “….We do not encourage abortion, nor favor it for trivial reasons, or sanction it “on demand””

    Clearly they are not on either side that R. Shafran defines. From a political point of view, there is much utility in defining one’s opponent as an extremist, and showing them in the poorest light possible. However, I think accuracy has to count for something, even if it is not expedient.

  8. Noam says:

    Rabbi Shafran- With all due respect, the quotes came from this past month’s issue of the NEJM(I gave the cites in my first reference to it, and I strongly suggest you read both persepective articles and the subsequent article), and specifically address the recent developments.

    I have read the entire bill. The factual findings in the bill are the facts that the bill originators wanted placed in the bill. I dont think any of use are naiive enough to think that a bill passed by congress is the place to find objective and unbiased information. The information placed there is designed to promote passage and acceptance of the bill.

    The supreme court of course is a respected body, but with regard to law, not to medical facts.

    I think your last paragraph is the most telling. How do you know what people believe? Are you bochen k’layot v’lev(investigating peoples inner thoughts)? Certainly there are those who want unfettered access to abortion, but the majority don’t want infanticide. There are many who are in favor of significant limits on abortion. However, you choose to portray anyone opposed to the is bill as promoting infanticide. That makes for a good sound bite and a compelling arguement, but it isn’t the least bit true.

    The reality is that this bill is very flawed, and has significant potential to harm women. Of course, you can make the claim that this medical evidence is wrong, but that doesn’t change the facts. The fact that a bunch of politicians with an agenda put together ‘facts’ doesn’t make that collection the objective truth. They can also claim that the sky is purple, but that doesn’t change the color of the sky.

  9. Rabbi Avi Shafran says:

    Dear Noam,

    The act described by the nurse was self-evidently the killing of a child. “Viability” – i.e. how long the baby might have lived if not killed – is of no consequence; the baby was clearly alive when its skull was punctured. And that is the point to which the partial-birth abortion law speaks: it prohibits a doctor from killing a baby that is effectively (and halachically) already born. The procedure described was not being done to save the life of the mother — in a case where it is indeed done for that purpose (if any such case even exists; it seems none does), the law, once again, does not apply.

    I don’t know what legislation the NEJM article you cite refers to – there have been many versions of partial-birth abortion laws, including at least one that was ruled unconstitutional. But if it refers to the bill that became federal law and was upheld by the Supreme Court (also a respected body), the magazine’s judgment is simply wrong (peer-review, we should remember, applies to factual articles, not the magazine’s editorial stances, which are reflective of only the editors’ opinions).

    Please read the entire federal law again, including the preamble of factual findings. You will find that the law does only one thing: it gives a born baby the right to live (and even that, not at the expense – if ever it is – of its mother’s life). It is tempting to focus, as you do, entirely on the mother. But there are two lives involved in the scenario covered by the law.

    The only debate here is between those who are committed to an unfettered right to abortion (and even infanticide, if it follows closely enough to the birth) and those who feel that treating a fetus as mere detritus is not morally acceptable.

  10. Noam says:

    Dear Rabbi Shafran- I(and most if not all of America) are against infanticide. The story you brought is certainly sad and heart-wrenching. However, it is one nurse’s description of an event with no context. We don’t know if the baby was viable. We don’t know if the procedure was being done to save the life of the mother. I could bring an equally sad story of a woman dying from a poorly done abortion in a place where abortions are illegal. I am not in favor of killing infants. I am against this bill as it does not adequately protect women. In the end, it is an unbearable sad story with no implications in this debate.

    You have brought one nurse’s story. I bring information from a peer reviewed internationally recognized medical journal. The New England Journal of Medicine brings these objections to the bill:

    1. The decision poses a threat to physicians who perform the still legal D and E(dilitation and extraction) procedure, and to those who dtermine that a D and X is indeed needed to save the life of a pregnant woman.

    2. Even if physicians expect to be exonerated, the prospect may have a chilling effect. Certainly that was the effect on many physicians after the 1975 prosecution of Dr. Kenneth Edelin who was indicted for manslaughter for performing a second-trimester abortion 2 years after Roe v. Wade.

    3. What counts as risk to a woman’s life rather than merely to her health, and where is the threshhold?

    4. there is no distinction between pre-viability and post-viability.

    5. The decision indicates a shift, where the woman’s health no longer (is) paramount, but rather societal morality and the state’s interst in life even before the point of viability outside the womb.[I certainly agree with societal morality, but what is the cost?]

    6. The American college of Obstetrics and Gynocology called the bill “shameful and incomprehensible”

    This is not a debate between baby killers and the people who want to save the babies. It is a debate between those who want to err on the side of protecting even non-viable fetuses, and those who want to err on the side of protecting the health of women. On the halachic side, if the fetus is not viable, I am not sure that the prohibitions you bring apply, especially if the mother’s health is at risk. I am not sure that halacha is as monolithic as you and Tal are depicting it.

    It is a sad situation where society has abortion on demand, especially when the fetus is viable. It is also a sad situation where the law demands that the health of a woman is ignored in favor of a non-viable fetus.

  11. Rabbi Avi Shafran says:

    Dear Noam,

    I’m not sure what the language you quote told you that my essay didn’t – I quoted it myself. In both cases, though – whether the head is outside the mother’s body or most of the baby’s body is – the child is considered by halacha (and, I think, by most reasonable people’s estimation) to be born. In the case of breech birth, when most of the body is in the delivery room’s air, it makes no difference (at least according to halacha, and I would say, here too, to reasonable people) whether the head is in the cervix or the birth canal.

    Perhaps the testimony of a nurse about just such a breech birth, cited in the Supreme Court decision, will better focus us on what we are speaking about:

    “Dr. Haskell… delivered the baby’s body and the arms – everything but the head. The doctor kept the head right inside the uterus…

    “The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

    “The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp…”

    That is infanticide.

    I suppose we’ll just have to disagree about whether a physician is sufficiently protected by the language of the law in a case where he judges partial-birth abortion necessary to save a mother’s life (although, as you probably know, halacha doesn’t even provide permission to kill a born baby to save its mother’s life; but we are discussing federal law here). Congress, however, found, based on consultation with medical experts, that no such situation can ever exist. And even if somehow it did, the Supreme Court decision explicitly noted that “a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the deliver of ‘a living fetus.’”

    Thus no doctor need ever be in a position to defend himself for killing a child already partially born. He can simply dispatch the unborn life in utero. All medical procedures open the door to civil suits; that is why doctors’ insurance premiums are what they are. But a law intended to protect the most vulnerable members of society should trump financial concerns, especially when simply taking precautions ensures any doctor that he will not be found liable for misconduct.

    As to the lack of a “health of the mother” exception, it is widely understood that such a clause would effectively make the law meaningless. “A threat to a woman’s health” is so broad a category that it could be invoked for the most minor, temporary consequence. To keep perspective, pit such a concern against the description of the nurse quoted above.

  12. Tal Benschar says:

    until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother…”

    The pertinent halakha is rosho o rubo — EITHER emergence of the head OR emergence of the majority of the body. That is what the Mishna in Ohalos and the peirush of the Rash mi Shantz there state. See also the discussion in Niddah 29. (True, the Rambam mentions only the head, but that is the usual situation — the head emerges first. Other places in the Rambam make clear that rosho o rubo is the halakha.)

    So, as I have stated above, in the situation in which the new law is dealing, halakha would forbid an abortion EVEN TO SAVE THE LIFE OF THE MOTHER.

  13. Noam says:

    Rabbi Shafran- The copy of the bill I found on the internet has the following information:

    Definition of “partial birth abortion”- “an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child’s body until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother…”

    Therefore, the statement about the head of the baby being outside the body is not true in all cases, and according to the information from the New England Journal of Medicine, it seems the head is usually still inside the uterus.

    You also say that the physician is protected from prosecution in case the life of the mother is at risk. I guess it depends on your definition of protection, because what I found is not my definition of protection, nor would it be the definition that any physician that I know would use.

    We find this warning: “Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

    The doctor is also subject to civil suits from the father: “The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.”

    The “protection” of the doctor comes in the form of this paragraph: “A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

    However, the findings of the State Medical Board are not the final word. They are “…are admissible on that issue at the trial of the defendant.”

    So, a physician can perform something he thinks is neccessary(only to save a life by the way, not to save the health of a woman), the Medical Board can agree that it was neccessary, but a jury can override that finding and he can not only be put in jail but be liable to civil suits as well.

    That is not protection. And there is no protection for the health of the woman.

  14. Rabbi Avi Shafran says:

    Dear Noam,

    I am not sure what “partial birth abortion” the article you quote refers to but it most certainly is not the law that was passed by Congress and enacted by the President and recently upheld by the Supreme Court. That law (you can easily access it on the internet) is very clear that the killing of the child being prohibited takes place after its head (or most of its body) has emerged from “the mother’s body.”

    And the law also ensures that any physician that claims to have acted to save the life of the mother — even in the above case, where the baby is essentially already born — is protected from prosecution.

    To Sholom,

    What Ms. Katz likely meant was “illegal in all circumstances” and “illegal in the United States.” What Roe’s overturning would engender would be the states individually deciding under what circumstances abortion would be permitted. South Dakota’s example is illustrative: even the most conservative “life-friendly” state would not forbid abortion when the mother’s life was threatened. And most states would surely be even more liberal, some putting some restrictions on abortion, others none at all. That scenario doesn’t strike me as terribly threatening — and it would place the United States in the category of a nation respecting even unborn life.

  15. Sholom says:

    Toby writes, “If Roe v Wade were overturned, abortion would not be made illegal.”

    That is completely false. Indeed, South Dakota did just that. Their Senate passed a bill which makes it a felony for doctors to perform any abortion, except to save the life of a pregnant woman. All amendments designed to mitigate the ban, were defeated, including exceptions in the case of rape or incest or the health of the woman.

    The bill was eventually overturned by ballot measure, but the fact that this was such a far reaching law and came so close to becoming law, gives lie to the canard that “If Roe v Wade were overturned, abortion would not be made illegal.”

  16. Sholom says:

    Perhaps I’m wrong, but from what I recall, although Rabbi Safran is correct that a third-party is not permitted to choose the life of the mother over that of the baby, once the baby’s head has emerged, this would not apply to the mother herself.

    I believe that she would be permitted to defend herself against the “rodef.” Although a third-party is not permitted to prefer one life over another, the contesting parties may defend THEMSELVES.

    Forgive my being gruesome, but this would mean that while the mother could not use someone else as her agent (the doctor), she could PERSONALLY use mortal force to defend herself against this baby.

    While this might have little significance practically, it is important to understand conceptually when discussing this issue.

    May we not know of such terrible things.

  17. Noam says:

    Tal- (quoting from the New England Journal of Medicine) “A so-called partial birth abortion, or D andX, involves dilating the cervix, partially extracting the fetus, puncturing the skull WHILE IT REMAINS IN THE UTERUS….”(bold face mine). Therefore the head has not emerged, as you claim. The rest of your arguement is similarly unfounded.

  18. Tal Benschar says:

    Noam:

    The new law deals with a situation where the head of the baby has emerged. The Mishnah (and all authorities afterwards) holds that at that point abortion is forbidden EVEN TO SAVE THE MOTHER’S LIFE! There is no two ways about it — according to halakha, in that situation, abortion is simple infanticide, indeed a capital crime. So in fact the new law does not go as far as halakha would demand.

    As for the broader issue of abortions in general, the reality is that in the vast majority of situations, abortion as performed today is forbidden according to halakha acc. to all poskim.

    No one can predict precisely what would happen if Roe v. Wade were overturned and the issue was returned to the States. But most who discuss the issue concede that there should and likely would be some exception for the situation where the mother’s life is in jeopardy. The greater likelihood would be that most, if not all, states would pass some type of exceptions along these lines. Such an exception would roughly encompass most situations where halakha would permit abortion.

    True, there might be a few situations where some poskim might permit an abortion while the local dina de malkhusa would not. My impression is that such would be a rare occurrence. (Q: How often did this happen prior to Roe v. Wade?) In many of these situations — less than life threatening but presenting serious health problems — are unlikely to be of the type requiring emergency abortion — so for some there would be the option of traveling to another, more liberal State. So in all only a few women might find themselves in situations where they are denied an abortion permitted by halakha.

    This is the best one can do prior to yemos ha mashiach — only a rough approximation of the din Torah.

    The alternative is that all abortions should be permitted (abortion on demand) to ensure that the rare case of permitted-by-halakha remains permitted. That strikes me as tremendous overkill (you’ll pardon the pun.) The price to be paid for such a policy is that we have millions of abortions every year — including, presumably, thousands of Jewish nefashos. Acc. to the Rambam, these are acts of shefikhas damim. While I do not pretend to be one who can espouse daas Torah, I am dubious about the notion that the Jewish community should espouse abortion on demand and tolerate millions of acts of shefikhas damim so that that the 1 in a million situation of abortion permitted by halakha should remain permitted by dina de malkhusa (excluding those that would likely be permitted anyway, such as where the life of the mother is truly in danger).

  19. Noam says:

    Please see the New England Journal of Medicine, May 24th issue(356:21) pages 2125-2129(related article on page 2201). The new laws do not allow for an exception for a woman’s HEALTH, only for her LIFE. Therefore, if a woman’s health is in danger, but not her life, then this type of abortion cannot be performed, and is against the law. Is this what Rabbi Shafran and Mrs. Katz think the halacha should be? And the courts, not a rav, are going to determine what would be a danger to a woman’s life, and what would be a danger to her health. Also, doctors are not going to want to perform an abortion in a case where there is doubt, so as not to be open to prosecution.

  20. Noam says:

    Mrs. Katz wrote:

    “In all fifty states, a majority of the population want abortion to be legal in certain circumstances and illegal in others. Therefore, abortion will always be legal in all fifty states.” A bold prediction that could very well turn out being wrong.

    States pass laws based on a number of different factors, and what the majority desires is not always priority number one. The reality is that laws have been proposed in a number of states that do not allow abortion in cases of rape/incest. They also put limits on when an abortion is allowed. If these pass at some time(not inconceivable, despite Mrs. Katz’s predictions), than halachically allowed(and mandated) abortions will be restricted. Having an abortion because of psychological suffering or severe birth defects is an accepted part of Halacha. I dont think it is proper to cross out that part of Halacha in order to win friends with the Christian right. As I have pointed out many times, the laws being written by Christians are not in accord with halacha.

    Another point ignored by Rabbi Shafran and Mrs. Katz is that physicians by and large are very sensitive to legal challenges. In today’s climate, many baseless malpractice suits are filed. Physicians naturally tend to shy away from procedures that could get them into legal trouble. If more restrictions are placed on abortions, physicians are probably going to shy away from the line that is drawn, for fear of being accused of crossing that line, and being exposed to criminal or civil prosecution.

  21. Chizki says:

    Dear Toby,

    I agree with (or, at the very least, think there is great merit to) the points you made in your comment except for your last sentence. In it, you make two separate statements. Statement 1: there is absolutely no chance that abortion will be outlawed (presumably in the U.S.) in circumstances where it would be halachically required. Statement 2: those claiming to support abortion rights due to concerns about freedom of religion are fully aware of statement 1. Regarding statement 1, I agree with your that the chances are low. However, I feel that that the chances are certainly greater than 0%. I hope that your claim of certainty on this matter is merely a rhetorical stance. As for statement 2, your broad generalization is wrong on at least one count: my entire (albeit weak) support for abortion rights stems entirely from by doubts regarding the certainty of statement 1.

  22. Toby Katz says:

    If Roe v Wade were overturned, abortion would not be made illegal. Rather, the issue would go back to the fifty state legislatures, where it constitutionally always belonged. Even some liberal legal scholars admit that Roe v Wade was bad law, and made an end run around the democratic process.

    In all fifty states, a majority of the population want abortion to be legal in certain circumstances and illegal in others. Therefore, abortion will always be legal in all fifty states, but in some states it will be harder to get than in others. It will always be possible to have an abortion to save the mother’s life, because over 90% of the American people (including large majorities of Christians) believe abortion should be legal to save the mother’s life. The vast majority also think abortion should be legal for the mother’s “health” which will always be a big loophole. Also the majority think abortion should be legal in cases of rape and incest, and in cases where the baby has serious birth defects. So abortion will always be legal in all fifty states for those reasons, even when Roe v Wade is overturned.

    The “Jewish” groups which advocate legal abortion under any and all circumstances — like Hadassah, the Reform movement, NARAL and the ACLU — really only want one right, and that is the right to have sex with no consequences. That is what the whole debate is about, period.

    Their professed concern with freedom of religion — the right to have an abortion when halacha requires it — is just a red herring. They know perfectly well that there is no chance whatsoever that abortion will /ever/ be outlawed when halachically required.

  23. ralphie says:

    Very clear and persuasive points. I wish you hadn’t mentioned Columbine and VT, however. I don’t think that can be connected to legalized abortion with even a dotted line. Those guys were not thinking about the value of life – they were just crazy.

  24. HILLEL says:

    A terrific post that clarifies an intentionally-clousded issue.

    Here is an essay on the borton issue from the former Chief Rabbi of the Brithish Commonwealth Rabbi Immanuel Jacoboits:
    http://www.jewsformorality.org/r_jakobovits_on_abortion.htm