Blogging for Choice: The Rodef, Jewish Law, and Abortion

Today, January 22, is the anniversary of Roe v. Wade, the landmark Supreme Court of the US case in which a woman's right to choose abortion as a medical procedure was upheld and state laws against it were thereby overturned.


Personally, I have not ever been in a position in which abortion was a consideration. Indeed, my problems with fertility have all been from the standpoint of not being able to carry pregnancies to term, and I have thus endured multiple miscarriages. At the same time, I have sat with women friends who have had pregnancies that threatened their lives, or that, for reasons of genetics, or development, were not viable for life. In these cases, I supported their decisions for medically induced abortion. My personal moral reasoning on this issue comes from my Jewish understanding of life, death and the rights of the individual.

Before I begin to discuss Jewish law and abortion, and the formation of my personal ethics about it, however, I want to be up front. With respect to US law, I support the right of women to reproductive choice. And I do not consider the death of a fetus to be a matter for government interference. This is because I believe that the constitution protects the rights of individuals and I do not hold the unborn fetus to be such. My reasoning for this is that the fetus is biologically a part of the mother, and the mother is the individual with the right to life. She has the right to protect that life and the right to determine whether to take risks to it when making decisions about healthcare and the child she carries. If a fetus is granted the status of an individual under constitutional law, what do we do when the interests of the fetus conflict with those of the mother? Should we force a woman to undergo life-threatening surgery in order to save the fetus? I would say that in that respect, the woman's interests are paramount. It is her body and her life and she has the right to determine her own fate, even when she is pregnant. It would be a violation of her right to life and self-determination to require her to sacrifice her own life for that of the unborn baby.


But back to Jewish law and abortion. Or maybe I ought to write "on with Jewish law and abortion" because really, even my idea that one person cannot be forced to sacrifice her own life for another, comes from my understanding of Jewish law.


Actually, Jewish law itself is nuanced when it comes to the termination of a pregnancy. It cannot be used to support either of the polarized positions shouted across the trenches on the battlefield of the culture wars. But then, I think most Americans have a more nuanced position as well. See for example, Doc's post for today.


Before I go further, though, I need to tell you that Jewish law is case law (causuistry) which means that decisions are made based on the circumstances particular cases. A decisor of Jewish law, when presented with a question, will argue the position based on law, precedent and consideration of the particular circumstances. Finally, the movement of Judaism a person adheres to will also affect her view of Jewish law. In Reform Judaism, for example, an individual is ultimately responsible for learning and choosing the ritual practice, and it is not considered binding beyond that choice.


Jewish law assumes that pregnancy is a good thing in most circumstances. It assumes that most people want to have children and that children are a blessing. But Jewish law also recognizes who it is that takes the risks in childbearing. Therefore, even among the most orthodox rabbis, it is recognized that it is the man who is commanded to be fruitful and multiply, and not the woman. The woman is not so commanded because it is understood that G-d delights in life, and would not command a person to risk her own life. Every individual's claim to life is equal. (For example, if you and I were lost in the desert and there was only enough water to see one of us safely home, Jewish law would not command me to sacrifice my life for you. Certainly, one person could choose to do so but cannot be commanded to do so). This is why a woman's use of birth control is not forbidden by Jewish law, although a man's use of it could be, depending on whether he had fulfilled the commandment to be fruitful and multiply. This would be determined by the man upon consultation with his own rabbi and his own conscience. (In the Reform Judaism, it has been said that human beings have fulfilled this commandment very well and that part is done. Others would disagree).


In the case of an unborn fetus, however, another principle of Jewish law also applies. That is that the fetus is not recognized as a person with rights under the law until the head is completely born. Prior to that, the fetus is part of the mother. This does not mean that Jewish law would sanction abortion on demand. It does not, because it assumes that the parents of the child do have an interest in having children. However, in the case where the fetus threatens the mother with death or morbidity, it is deemed to be a rodef, a pursuer. In Jewish law, the rodef forfeits all rights to consideration. In such cases in which the mother's life is in grave danger, a rabbi would not only permit an abortion, but would say that it was commanded because the mother, being a person, has the right to life and the fetus, not having been born, does not. The mother, therefore, has an obligation to preserve her own life.


In cases where the fetus poses a threat to the mother's health, an abortion may be permitted or not, depending on the circumstances of the case. In these cases, the woman would most likely go to her rabbi, who would then either refer her to a rav (a scholar who decides Jewish law), or counsel her about the situation. Much here would depend on the rabbi and the particular philosophy of Judaism that is being practiced.


Finally, with respect to cases in which the fetus will be born with some grave condition that is incompatible with life, or poses a grave threat to security of the family, an abortion may or may not be permitted. In different cases, in different parts of the world, in different movements within Judaism, these questions have been decided differently. Even among the orthodox poskim (decisors), different rabbis have tendered different decisions.


I believe that the choice to induce abortion is a grave moral decision. In such cases, I would personally choose to go to my husband, my rabbi, and my doctor and try to determine what is the best, and most moral choice for me and for my family. I do not want the government to a priori determine these things for me. Ultimately, it is my life that might be at stake. It is my family that will live with the consequences of such a choice. I am the person who must stand before the Eternal and respond for my moral decisions. It would be wrong and immoral for the government to take that responsibility from me. This is why I oppose the attempts of well-meaning people to impose their religious morality on me or on anyone else.


There are some who will argue that not all women take this responsibility and make this choice with equal gravity. It is not my place to determine this. Just as I want to keep government interference out of my life, I want to keep it out of the lives of others as well.

The constitutionally protected rights to life and liberty apply to all or they apply to no one.

There are those among us who would like to think that they have a particular entitlement to determine the extent of liberty allowed the rest of us. They would like to tell you and me who we can marry, how many children we ought to have, what health care decisions we must make, and what world-view we must hold. Whether they are on the left or on the right, they are tyrants. Whether they seek to rule us in small matters or large, in personal decisions or public policy, we have the obligation as free men and women to resist them.


I do not ask anyone else to practice my religion, or to abide by its laws and customs. I recognize that others have the right to practice their own religion in peace. But I expect that those of other religions respect my rights as well. American patriotism begins with respect for the rights of all.