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Abortion, Jewish Law, and the US Constitution



By Charles David Isbell
Louisiana State University

October 2009



If the teaching of religion is to be more than a dry exercise in the analysis of ancient texts and cultures, teachers of religion cannot avoid addressing the tough questions faced by their students in twenty-first century life. One of the toughest of these questions centers on the question of abortion. Here is one way in which the study of religion can inform the current debate.

On March 3, 2009, newspapers across the nation carried an editorial in which Cal Thomas made what he evidently believes to be an airtight case against abortion. Mr. Thomas expressed his personal Christian belief that all abortion is a sin, abortionists are playing God, and there is no room for reasonable people to voice a dissenting view. Of greatest interest is his argument that the separation of church and state supports his position. Here are his words: “Where is the separation of church and state when you really need it?”

On May 17, 2009, the President of the United States gave the commencement address at Notre Dame University. Although a majority of Catholic voters had chosen Mr. Obama in November, 2008, and he carried both the county and the state (Indiana) in which Notre Dame is located, the invitation extended to him by the university was met with a torrent of outrage from conservative Catholics led by a number of bishops and cardinals. The most prominent phrase used by the opponents of President Obama was their description of abortion as “a culture of death.”

Although Jews and Judaism were not mentioned either by Mr. Thomas or by the opponents of President Obama, I believe Judaism should have a voice in this controversy. Let me start with an unequivocal statement. Jews traditionally and for millennia have evinced resounding respect for life, and we take a back seat to no one regarding the sanctity of all human life. Our own history is replete with examples of the suffering we have endured when Jewish life has been devalued, often while non-Jewish eyes were averted from the tragedy that ensued. Given this Jewish reverence for life, it is significant that the early rabbis (ca. 100 BCE-220 CE) were careful to note that once an infant came into the world and was capable of living independent of its mother’s womb, every effort should be made to preserve and protect that new life regardless of its physical condition. In particular, the rabbis opposed the Roman custom of killing newborn babies that were deformed or otherwise unacceptable to their society.

But the rabbis believed that abortion was sometimes unavoidable. In Jewish law, the only circumstance that permits one person to kill another is for the purpose of saving the life of an intended innocent victim. According to the Talmud (Sanh. 8.7), whenever any person pursues (rodef) another individual with the manifest intent to kill him, everybody is under a duty to rescue the victim, even if the only way to do so is by killing the pursuer. From this premise, the argument was made that a fetus threatening the life of its mother must be terminated. In other words, if a woman is an observant Jew, her religion has taught for hundreds of years that whenever a fetus threatens her life, it is a religious obligation of the community to save the life of the mother even at the expense of the unborn fetus. Suppose her rabbi counsels her by quoting from the statement in the Mishnah that they both accept as authoritative: “the life of the mother has priority over the life of the child” (’Oholot 7.6), which meant halakhically that a woman does not have the moral right to risk her own life in order to save an unborn fetus. Does the same separation argument cited to support absolute opposition to all abortion now protect the right of the Jewish woman to follow the dictates of her personal religious convictions? Or is it only the religion of the majority that holds sway in all cases?

From this perspective, abortion is a religious issue, not a political one, and thus not simply a matter of American jurisprudence that can be voted upon by the majority or decided in a court of law. I do not have to agree with the Catholic position that abortion under every circumstance is a mortal sin in order to support the legal right of a practicing Catholic to follow the teachings of her church. By the same token, anti-choice advocates need not agree with the classical Jewish position that abortion performed to save the life of the mother is required in order to support the legal right of a practicing Jew to follow the teachings of her faith. Separation of church and state cannot apply only when it involves those who have majority status, but must be extended to every individual regardless of her faith.

The primary question is this: Are we concerned about the mother who has an established, independent life, a husband and perhaps other children who depend upon her? If the life of a mother is threatened, on what authority can we argue only about an unborn fetus whose ability to exist outside the womb has yet to be demonstrated? The Tanna’im simply made the reasonable argument that the established life of a mother takes precedence over that of an unborn fetus. Additional questions also need to be asked: What is a fair definition of “threatened?” Who determines the existence of a threat? These are all legitimate questions. But they cannot be answered by having politicians write the kind of laws for which anti-choice advocates argue, making all abortion illegal because their personal religious beliefs dictate that stance to them.

To be sure, a Jewish decision to abort should not abandon individual mothers to an agonizing choice made in isolation. But personal beliefs must be tutored not by elected politicians but by spiritual and medical professionals who take seriously their moral responsibilities. Thus it might be argued that while the woman alone must make the choice, a Jewish woman should also be granted the privilege of consultation with medical professionals, spiritual advisors, her male partner, and her family and friends.

I do not want a Catholic mother to be forced by American law to follow Jewish law and have an abortion to save her own life if her church teaches her that such a choice would be wrong for her. But neither do I want a Jewish mother to be forced to follow Catholic law and risk her own health when her faith, medical science, and her own conviction lead her to conclude that terminating her pregnancy is appropriate for her. This is nothing short of dictating to a Jewish woman what she must do merely because a majority religious system teaches that an appropriate Jewish decision would be a sin for its adherents. The laws of the USA must preserve the right of both the majority Christians and Jewish (and all other) minorities to make decisions based upon their personal religious beliefs. It is the province of government to protect the right of all individuals to follow the dictates of their own religion, not to tell individuals what those dictates should be for everyone.

Removing the issue of abortion from the sphere of the political and returning it to its appropriate place in the realm of the moral, the religious, the spiritual, can honor the principles that both sides profess to honor. Surely the goal of removing “government” from the private moral lives of its citizens is one issue on which we might agree. If such becomes the case, honorable Christians (and indeed some honorable Jews!) may oppose abortion under all circumstances within the confines of their private religious communities. Honorable religious Jews (and indeed some honorable Christians!) may consider each case carefully, spiritually, medically, and prayerfully, free from governmental intrusion into the realm of their religious lives.