the American people have failed us because we have failed them. We?ve stopped listening to their concerns, and most of all we?ve stopped speaking their language. As in any relationship, all the love and goodwill in the world don?t make up for an unwillingness to listen and communicate. The moral vision that we progressives hold can be the most important weapon in our arsenal. We must not focus on narrow legal and procedural concerns; we need to be up front about our moral commitments, ?nding ways to articulate them and relate them to ABORTION Abortion in Jewish Law political concerns. Americans are most responsive to that which makes the most moral sense. For that reason, what is deepest and truest is also what is potentially most popular. America has been talking to us all along. It?s up to us to ?nd the right words to say in return. If we can listen to what America is telling us, be humble enough to see what we have misunderstood, and express our ideals and our compassion in words that speak to the American heart, then a new political era may begin. Cl Rachel Bzale ewish law (halakha) has no single coherent position on abortion. Instead it presents a number of central opinions-that, when carried to their logical con- clusions, lead to a range of possible rulings on abortion and to internal contradiction. Abortion appears in biblical legislation only in the case of accidental miscarriage: ?When men ?ght and one of them pushes a pregnant woman and a miscarriage results, but no other harm ensues, the perpetrator shall be ?ned whatever the woman?s husband may exact from him" (Exodus 21:22). Accidentally induced abortion is treated as a civil matter, and the husband is compensated for his loss of progeny (since, according to biblical law, all his wife?s ?products? are his property). If, however, ?other harm? occurs, namely, the woman is killed or injured, ?the penalty shall be life for life" (ibid.). The destruction of a fetus is not considered a capital crime, and therefore, later sources conclude, a fetus is not considered a living person. In fact, the fetus is de?ned as a part of its mother?s body: ?ubar yerelel) z'mmo? fetus is [like] its mother?s thigh,? Hulin 58a, Gittin 23b). The fetus has no independent rights, and it may be destroyed to save the mother?s life, even as late as the birth process itself: ?If a woman is having dif?culty giving birth, one cuts up the fetus within her and takes it out limb by limb because her life takes precedence Rachel Bz'ale is the author of Women and Jewish Law (Scbocken Books, 1984). She is a practicing social worker in Berkeley, California. 26 TIKKUN VOL. 4, No. 4 over its life. Once its greater part has emerged, you do not touch it because you may not set aside one life for another? (Mishna Oholot Thus the fetus becomes an independent person only when its head or most of its body has emerged (Sanhedrin 72b). In fact, a newborn is not considered fully viable until thirty days after birth, and a neonate?s death before thirty days is not mourned like other deaths. Nevertheless, the fetus is valued as a potential life, and thus one may violate the law in order to save its life?for example, carrying a knife on the Sabbath in order to operate and assist in the delivery (Yoma 85b). Consequently, even those halakhic authorities who base their ruling on the principle that a fetus is not a person allow abortion only in the gravest circumstances. In fact, most halakhic authorities permit abortion only to save the life of the mother. They follow, in one way or another, Maimonides?s argument that the fetus is a pursuer (rodef) who, like a murderer chasing a victim, may be killed to save the life of the pursued: ?Therefore the Sages have ruled that when a woman has dif?culty in giving birth one may dismember the child within her womb, either by drugs or by surgery, because he is a pursuer seeking to kill her? (Mishneh Torah, Hilkhot Rotze?akh U-Shmirat Nefesh Maimonides?s ruling that the fetus is a ?pursuer? implicitly undermines the argument that a fetus is not a person. In other words, if the only reason that the fetus can be destroyed is that it is a pursuer, the implication is that it might be considered a person. Although Maimonides did not explicitly draw this conclusion, subsequent authorities did. Rabbi Hayyim Soloveitchik makes this argument more radically than other halakh- ists when he states: ?The reason for the opinion of Maimonides here is that he believed that the fetus falls into the general category in the Torah of pikuakb nefesb [saving life], since the fetus, too, is considered a nefesb and is not put aside for the life of others? (Hiddushei Rabbi Hayyim Soloveitchik to Mishneh Torah, Hilkhot Rotze?akh, In any case, whether one accepts the talmudic or the Maimonidean position on the status of the fetus, abortion is permitted?required? to save the life of the mother. In addition to allowing abortion to save the mother?s life, the Talmud cites another situation when abortion is permitted: ?If a woman is about to be executed, one does not wait for her until she gives One strikes her against her womb so that the child may die ?rst, to avoid her being disgraced? (Arakhin 7a?b). Thus, the dignity of a condemned woman takes prece- dence over the life of the fetus, as does the mental anguish she would experience if she were to wait for the execution in order to complete the pregnancy. The implication of this ruling, in the opinion of the more permissive legal authorities, is that abortion may be actively sought and induced in order to save a woman from great suffering, even if that suffering is only Thus, the eighteenth-century halakhist Jacob Emden allowed a woman who conceived a child through adultery to have an abortion because of her ?great need,? namely, her anguish at ?the thought of giving birth to a mamzer [bastard] (She?elat Ya?avetz No. 43). Even an unambiguous etbical argument could be made against abortion, tbe lack of public consensus and tbe probibition against endangering ones life would raise signi?cant balabbic problems. However, unlike Emden, most halakhists?even ?le- nient? ones?allow abortion only when there is a pbysical (not hazard to the mother. Ben Zion Uziel, for example, Ashkenazic chief rabbi of Israel in the 19505, permitted abortion in a case where a pregnant woman would become deaf if she did not have an abortion (Mishpetei Uziel, Hoshen Mishpat 3:46). A minority of halakhists, however, follow Emden?s example of allowing abortion to prevent cal harm to the mother. Among more contemporary halakhists, Rabbi Yehiel Jacob Weinberg in Switzerland permitted abortion of a fetus conceived by a woman infected with rubella, and Rabbi Eliezer Waldenberg in Israel ruled that a Tay-Sachs fetus may be aborted. Neither of these halakhists justi?ed their rulings on the basis of the expected suffering of the baby, a halakhically unacceptable argument since there is no halakhic per- mission for euthanasia based on arguments of ?quality of life.? Rather, these rabbis based their decision on the motber?s anguish at the prospect of bearing a fatally ill or deformed child, for, as Waldenberg argues, logical suffering is in many ways much greater than the suffering of the ?esh? (Responsa Tzitz Eliezer, Part 13, No. 102 In short, the halakha does clearly state that the fetus is not a person, not just until the end of the second trimester of pregnancy but until the actual moment of birth. Yet the principle of protecting potential life and the justi?cation of abortion on the grounds that the fetus is a ?pursuer? limit even the most lenient halakhic authorities to sanctioning abortion only in circumstances of grave physical or threat to the mother. ABORTION 27 he question remains how the halakhic discussion I of abortion relates to the constitutional issues raised by Roe v. Wade. Much of the discussion of R06 0. Wide focuses on the question of whether abortion should be immune from legislative interference .based on the rights of privacy and individual freedom. The halakha does not adhere precisely to the constitu- tional categories of privacy and individual freedom, but some analogies seem evident. One of the halakha?s fundamental ?metarulings? is: ?We do not make a ruling [gezeyra] unless the majority of the community can abide by it? (Baba Kama 79b). Indeed, one of the major ?pragmatic? arguments in favor of legal abortion has been that the majority of women who seek abortion would not abide by a prohibition; they would resort to illegal abortion. Such abortions force women to put their lives in signi?cant danger, and endangering one?s life is forbidden by the halakha. One is required to violate any commandment in order to save one?s life, with the exception of the prohibitions against murder, idolatry, and illicit sexual relations. Thus, even if an unambiguous ethical argument could be made against abortion, the lack of public consensus and the prohibi- tion against endangering one?s life would raise signi?cant halakhic problems. The halakha may also be implying that a woman has the right to determine her own fate and the future of her pregnancy when it insists on exempting women from the legal duty of procreation. While men are bound by the mitzvah (commandment) of procreation based on Genesis 1:28 (?be fruitful and multiply?) and Genesis 9:7 (the blessing/ commandment of procreation to Noah and his sons after the Flood), the Rabbis engaged in hermeneutical acrobatics in order to exempt women from that duty (Yevamot 65b). Although the exact rationale for this exemption is only alluded to, it is clear that the Rabbis felt it necessary not to require women to do something that ?puts their lives on the line.? The Rabbis were concerned primarily with the physical dangers of childbirth, but they were also aware of the emotional and social dimensions: the ways in which women?s lives were devoted to and determined by childbearing. The Rabbis? determination to exempt women from the duty to procreate left a signi?cant halakhic opening for the practice of contraception (Yevamot 12b). Perhaps the fact that the talmudic statement regarding contra- ception is descriptive, not prescriptive (which has led to much controversy in post?talmudic rulings on contra- ception), was on purpose. Just as the Rabbis intentionally refrained from prescriptive rulings on matters of preg- nancy and birth, so too did they refrain from offering such rulings about conception and childbearing. Thus we may point to halakhic justi?cations for the argument that the state or any other legal authority should not legislate in those areas that require a woman to endanger her life. 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