abortion and halacha

[cellio]

This afternoon I was reading the dead-tree edition of Moment magazine and came across an excellent article on how anti-abortion laws conflict with halacha. They only seem to have the first few paragraphs on their web site, alas. (They sometimes have full articles. Maybe there's a time lag.)

To summarize, Jewish law does not hold (as much of Christianity appears to) tha life begins at conception; rather, human life begins at birth. (Specifically at crowning, as I recall.) The torah covers causing the death of a fetus; it's a property crime. Killing a person, of course, is not. So abortion is permitted under Jewish law. Not desirable, but permitted.

Now here's where the halachic problem with the agenda of the far right comes in: under Jewish law, there are cases where abortion is mandatory. It is unambiguous that this is required to save the life of the mother; the rabbi generally agree that it is also required to preserve the health of the mother.

Most pro-choice folks (certainly myself included) argue on the grounds of individual liberty, but the author of this article points out that as Jews we should be considering the halachic issue, too. The rest of this entry is me talking, not the author.

If Bush gets his way (through legislation or by stacking the Supreme Court), we could end up in a situation where national law forbids the correct practice of our religion, specifically as regards to how we treat other people. I've been trying to think of an analogy for Christians (staying away from murder because it's emotional), and the closest I can come up with is: suppose the government required you to bear false witness against your neighbor, with the result that he would be criminally or economically ruined. (And if you think that can't happen...) That's a violation of one of the ten commandments. Would you be outraged? Would you heed that law? Requiring the Jewish community to stand by while an actual life is ruined in favor of a fetus is kind of like that. A Jew who does that violates laws (both between man and man, and betweeen man and God) that we take every bit as seriously as Christians take their laws that say life begins at conception. But Christians do not sin if they fail to prevent an abortion; we do in some cases if we fail to perform one.

If religion has no bearing on government, then the anti-abortion lobby has to rework its arguments. If religion does have bearing on government, then all religions must be considered, not just the one most popular with lawmakers. Some of the founders of the country may have been Christian (many were Deists), but this is not a Christian nation. Not then and certainly not now.

Comments

[goldsquare.livejournal.com]

So, talk to me about the law, and Levirate marriage. :-)

[siderea]

Ooooh. Letty Cottin Pogrebin! Wow, she's still around! I haven't read something by her since, um.... um.... I think I was 10.

[ichur72.livejournal.com]

I'm not sure I agree, for several reasons. (Note: Of course you and I are coming from an different POVs WRT halachah, but here's my two cents.)

First, so far as I know (and I will readily admit to being no expert on halachah), the status of a fetus is not an either-or proposition. It isn't alive and it isn't not-alive; it's potential life. Destruction of a fetus may carry the same penalties as property crimes, but that doesn't mean it *is* a property crime.

Second, IIRC, halachah's position on abortion by non-Jews appears to be stricter than for Jews. I believe that the Rambam says something in the Mishneh Torah to the effect that abortion is categorically forbidden for Bnei Noach. Since it's obviously not feasible to set up a two-tiered system for abortion in the US -- permissible for Jews in certain circumstances, forbidden for everyone else -- I am a little wary of bringing halachah into the national political discussion.

Third, US abortion laws in their current form aren't an all-or-nothing proposition -- i.e., they don't either forbid it outright or allow it in all cases with no questions asked. Halachah as I understand it is the same way. That is, in most cases Jewish law says abortion is *NOT* OK for a Jew unless it presents a clear danger to the mother's life, and even then it's not a decision that should be made without consulting a rav. If so, what's the problem with writing abortion laws that permit it if and only if certain conditions apply? Nevertheless, circumscribed abortion laws are not likely to go over well with everyone in the pro-choice camp. Some will say fine, but some will take the position that any attempt to limit abortion is a stepping-stone to outlawing it completely. I just don't think this is a black-and-white issue.

Personally, I don't think abortion is doomed if the composition of the Supreme Court changes. There is a good argument to be made for the proposition that Roe v. Wade is bad constitutional law and that scrapping it would just kick the issue back to state legislatures. Again, I can't see it as a black-and-white thing.

[mrpeck.livejournal.com]

I do not wish to debate this emotional issue but I do feel that it is necessary for me to clarify some of the misconceptions of Christianity, particularly Catholic Christianity, implied in your post. I make the Catholic Christianity distinction because I am unable to speak to the beliefs of other denominations. So, what follows is a response from a Catholic Christian perspective.

To start with, you are correct that if a governmental law conflicts with the natural moral law (of which the ten commandments is an expression) that it is an invalid law and cannot be morally followed.

The implied misconception that I saw in the original post is that Christian teaching requires women who are pregnant and have a fatal condition aggravated by that pregnancy to die rather than have their illness treated if that treatment could harm the child. The short answer is that the illness should be treated. The longer answer gets into an application of the principle of double effect.

I found a page the describes the application of natural law theory and double effect better than I can here. You probably won't like the body of it but might find the introduction useful and you should definitely check out the first paragraph of the conclusion. Also, to warn you, the author needed a better editor to catch the typos.

My shorthand explanation of double effect theory is that it is always very messy and is best to be avoided if at all possible. However, the world is not always nice enough for us to do that. So the extremely short definition with a lot of hand waving is that an act may be judged as moral even if it produces evil consequences provided that the act itself is good (or neutral), the evil and its effects are not intended, and the situation is grave. Most applications of double effect involve life or death situations and accidentally killing someone out of self-defense is the most common one.

The first part of applying double effect principles in this case would be to avoid it, meaning, the Christian would first try to save both lives. For the act to be moral, there can never be an intention to kill either the mother or the child. If there is no way to save both lives, a medical procedure to fix the problem is permissible. Please note that I am using the term 'medical procedure' in its generic meaning and not as a euphemism for an abortion because the direct act of an abortion remains morally wrong. If there is a side effect of the medical procedure that the baby dies, it can still have been a moral act depending on the conditions including whether that procedure was the only means available and that the death of the baby was not intended. Pope Pius XII says basically the same thing as quoted in this footnote of the document linked to above.

My point is that proper application of Christian teaching in the situation of medical care would not result in the situation where a Jewish person would be forced by law to violate her beliefs. If a law results in that type of situation, it is due to politics or ignorance and not Christian teachings. Please accept my apology if I misinterpreted the original post.

The other thing I should mention is that a Christian is morally culpable for their failures to act when they could have done so as well as for the acts that they commit.

[ichur72.livejournal.com]

>> Rather, people seek abortions because they do not want to continue the pregnancy. If a method of extracting the fetus alive existed (and posed no more medical risk than conventional abortions) then I would expect most patients to happily go along with it, and I would support law that mandated trying that first.

Do people seek abortions because they don't want to continue the pregnancy or because they don't want to be a parent at that particular time? I don't think you can separate the two, and I bring it up because there is certainly a way to extract the fetus alive and not parent the resulting child -- and that would be giving the child up for adoption. Not that this is by any means an easy out, and I don't mean to portray it as such. It is, so far as I understand, emotionally agonizing and perhaps physically draining as well. But the option exists.

[aliza250.livejournal.com]

suppose the government required you to bear false witness against your neighbor, with the result that he would be criminally or economically ruined. (And if you think that can't happen...)

Substantial numbers of the death penalty cases overturned by DNA evidence involved witnesses paid or coerced to submit false testimony.

As a side note, a number of people arguing against same-sex marriage say "what's next? polygamy?" However, the majority of the people in North America trying to make polygamy, or de-facto equivalents, legal, are doing so precisely on the grounds of freedom to practice their religions.

(As a tangible example, the BC government refused to take action against the polygamist community of Bountiful for many years precisely because they didn't want to get involved in a possibly bad-precedent-setting freedom of religion case.)

(And, as a side note, while I have nothing against polygamy being practiced among informed and consenting adults, the controversial examples all involve community and religious coercion that forces underage women to become junior wives to older men.)

[psu-jedi.livejournal.com]

If religion does have bearing on government, then all religions must be considered, not just the one most popular with lawmakers.

caryabend has been saying for quite some time that he would like the pro-chioce community to turn this into a 1st Amendment argument based on religion, for the very reasons you've stated above.