The Jews And Partial Birth Abortion

Here is a bit of text that I think many of you will find very interesting.

The Jewish distinction (rooted in the original Hebrew text) between the life of the mother and the life of the child is emphasized in a striking text of the Mishnah (Ohalot 7:6):

"If a woman has difficulty in childbirth, the embryo within her should be dismembered limb by limb, because her life takes precedence over its life. Once its head or its greater part has emerged, it may not be touched, for we do not set aside one life for another."

This text seems especially remarkable because it refers to a procedure quite like what today is called "partial-birth abortion," and which is viewed with especial horror by abortion opponents. Even if one could be sympathetic about a first-trimester abortion when the embryo is still barely formed, the killing of a full-term fetus shortly before its birth seems abominable. And yet this is precisely the gory example which the Mishnah uses to clarify its position. As long as the fetus is still enclosed within the mother, it is in some sense a "limb" of the mother, and if the hard choice must be made between the life of the mother and the life of the fetus, the life of the mother takes precedence. However highly the fetus is regarded and however fully it has formed, it does not pass the threshold where it can be regarded as a "person" with equal legal standing to the mother until its head or the greater part of its body has emerged from her womb.

This Mishnah text makes a strong argument for the legal acceptability of abortion when it is necessary for the life of the mother, but the circumstances that will actually justify an abortion are not so clear. What is a "difficulty" in childbirth, and how great must the threat to the mother’s life be? What if the mother faces some serious physical injury because of the pregnancy or the childbirth, but her life itself is not in danger?

Maimonides (12th century) seemed to strictly limit the cause for abortion to a case where the mother’s life itself was threatened, likening the fetus to a "pursuer," one whom we are justified in killing because it is actively seeking to kill someone else. But most rabbis since Maimonides have not interpreted so narrowly. Most have agreed that serious physical injury to the mother is also grounds for abortion.

In fact, the prevailing position in halacha (Jewish law) today, though restrictive, is rather lenient. It is the position argued by former chief rabbi of Israel, Rabbi Ben Zion Uziel. He declared that abortion is permissible even for what he calls "a very thin reason," meaning that one should give broad latitude to how a woman interprets "difficulty" or "injury," or "life-threatening," and even allowing an abortion in certain circumstances of great emotional anguish where there is no physical danger to the mother. But how thin is "thin"? What about the case where the child is known to be physically or mentally defective? What about the regrets after consensual adultery? Does a woman’s shame or embarrassment at the consequences of her own actions justify the termination of a pregnancy? What about the woman whose education or career will be made difficult if she has a child to look after? Is the Jewish position simply abortion on demand?

Certainly Judaism never allows abortion for birth control purposes when having a child would be simply an inconvenience or embarrassment. But in practice there remains considerable disagreement among halachic authorities and among the various streams of Judaism concerning specific cases. For example, most Orthodox authorities do not permit abortion on the grounds that a fetus is severely defective. Conservative and Reform authorities would permit aborting a physically or mentally defective fetus.

Of course with the Jews, having no central authority since the destruction of the Temple in Jerusalem, there are many contending schools of thought. In addition even when the Temple was in existence there was the oral or common law which modified the law handed down in the Torah. In fact the law was highly developed and it is where our common phrase "it depends on whose ox was gored" comes from.

What do I get from all this? That the various positions on abortion come out of religion and not some absolute rule that can be unequivocally applied and that the best thing the government can do is to stay out of the question and let the individual decide what is best.

Cross Posted at Classical Values