Jewish Law, Abortion, and Rape 29-Sept-12

Jewish Law, Abortion, and Rape

Because of recent events in the news, people are asking me about the position of Jewish law on the question of whether rape is warrant for an abortion. The first thing to know is that, in the words of Orthodox physician Daniel Eisenberg, who writes on Jewish medical ethics, “The traditional Jewish view of abortion does not fit conveniently into any of the major ‘camps’ in the current American abortion debate. We neither ban abortion completely, nor do we allow indiscriminate abortion ‘on demand.’”

Secondly, a key basis of Jewish law of abortion is Exodus 21:22-23, which says, When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband shall exact from him, and he shall pay as the judges determine. We understand this to mean that the woman’s death would be a capital crime, but not that of the fetus. Furthermore, Exodus 21:12, which states, He who fatally strikes a man shall be put to death, is understood by the rabbis to mean, “a man, but not a fetus.” So, in Jewish law, abortion may be permitted, it may be forbidden, but it is never murder!

Third, the Talmud states that if it in a choice between the unborn fetus and the mother, we save the mother’s life, “because her life comes before its life.” Many authorities agree that even a danger to the mother’s health that is less than life-threatening would be sufficient justification. Furthermore, we also take into account the mother’s mental and emotional well-being. As Dr. Eisenberg writes, “In cases of rape and incest, a key issue would be the emotional toll exacted from the mother in carrying the fetus to term. In cases of rape, Rabbi Shlomo Zalman Aurbach [one of the most respected 20thcentury Haredi authorities on Jewish law] allows the woman to use methods which prevent pregnancy after intercourse. The same analysis used in other cases of emotional harm might be applied here.” Notice that the reference point is always the mother’s life, physical health, or mental and emotional health. The general rule is that her life takes precedence over the life of the fetus.

I quoted an Orthodox authority to emphasize that this is not a matter of importing “liberal” values into Judaism. Of course, even within Orthodoxy there is a spectrum of opinion concerning abortion, but there is no Jewish opinion that considers abortion murder, or that doesn’t allow for abortion in certain cases. Thus we can never be aligned with the fundamentalist Christian or Catholic principle that abortion is murder, based as it is on a theological doctrine about when the soul enters the unborn.

What about Conservative Judaism? A responsum issued by our Committee on Jewish Law and Standards in 1983 (link below), states, “[The Committee] takes the view that an abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm…”

In another responsum endorsed by the Law committee, Rabbi Robert Gordis addressed the issue of rape (and incest), “It will be generally agreed that the victims of such atrocities have already undergone major psychological trauma even if they did not suffer additional physical violence. To permit such a pregnancy to run its course means to bring into the world a permanent reminder of the terror and the shame that the woman experienced at the time the crime was committed.” So an abortion would be permitted, based on the mental well-being of the mother.

One final thought. The anti-abortion forces in America today tend to be absolutist: abortion is always murder and never permitted. By contrast, we have a method for determining how to apply Jewish law: we learn from the relevant texts, laws and teachings, then we apply them to a carefully researched understanding of the specific situation, and then we use reason and judgment to come to a decision. This is the opposite of absolutist.

Were the “abortion is murder, no exceptions” position become the law of the land, it would, in effect, impose one religious viewpoint on every American citizen, including those, like Jews, who differ. Didn’t we Jews come to America in large part so that no religion’s beliefs and practices could be forced on us? As a 1991 United Synagogue resolution put it, “to deny a Jewish woman and her family the ability to obtain a safe, legal abortion when so mandated by Jewish tradition, is to deprive Jews of their fundamental right of religious freedom.” So no matter how we vote, we have a responsibility to oppose any attempt to define abortion as murder, and any restrictions on abortion that would compel us to go against Jewish law and practice.

Links:

Dr. Eisenberg’s article: http://www.aish.com/ci/sam/48954946.html

The summary statement of the Law Committee: http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20012004/07.pdf

 

You can find the full responsa on this page under the heading “Harming Others”: http://www.rabbinicalassembly.org/jewish-law/committee-jewish-law-and-standards/hoshen-mishpat