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abortion and halacha

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.

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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.

Thank you for this reply.

I did not intend to speak about all Christians; I tried to use phrases like "the far right" to limit the scope of my comments. I obviously did not do this well enough and I apologize for that. I certainly don't believe that all Christians oppose all abortions.

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.

I didn't mean to imply that. I know that some Christians believe that (you see news stories about these cases from time to time), but not all. But am I correct in my perception that Christianity (limit that however you like) would never consider abortion to be mandatory? That's an important point because under Jewish law it can be mandatory.

Thanks to the pointer to the essay on natural law and double effect. Interesting article. Double effect strikes me as rules interpretation worthy of talmudists. :-) I wonder about its applicability in this case, though. I don't think anyone who has an abortion goes into it with the attitude of "kill that parasite!". 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. (I'd have other stipulations for that law, but they're tangential to this point.)

So what I'm getting at is that I don't see abortion as the deliberate killing of the fetus. That killing is a side-effect of ending the pregnancy. But clearly this isn't the interpretation the developers of this doctrine intended, so I must be missing something. They could, of course, make the argument that some outcomes are so evil that intent doesn't matter (and they make that argument elsewhere), but I'm wondering about the appicability to double effect.

How does all of this change if the threat to the mother is not death but rather grave harm? Where does the line get drawn? For example, would chemotherapy be permitted only if failure to trate the cancer before the end of the pregnancy would assuredly result in death? What if it's 50-50? What if it's 1 in 100? As soon as there's a line there are legitimate questions about its placement, after all.

I'm not trying to give you grief; I'm just trying to understand the application of the doctrine.

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.

This, too, raises questions. At the one extreme, if you are standing right next to someone who is being attacked and you are not incapable, you are required to intervene. Christians, Jews, and most others would probably agree. At the other extreme, you are probably not required to sabotage the Smith & Wesson plant in the next state over because their product could lead to crimes being committed. So where is the dividing line? I had been under the impression that the moral requirement to intervene involved individual cases.

If a law results in that type of situation, it is due to politics or ignorance and not Christian teachings.

An excellent point. That some folks on the right wing use Christian doctrine in their arguments does not make it so.

Thank you again for your reply. I hope I've been able to clarify some things and not offend with my questions.

I should say once again as a blanket statement that anything that gets into double effect is messy and not as clear cut as one would like. It is certainly too messy for my preferred tastes but it is a way to try to understand how to make moral decisions in a world that can be messy. I will also retain my blanket statement that I can only speak to Catholic Christianity.

But am I correct in my perception that Christianity (limit that however you like) would never consider abortion to be mandatory?
That is true as stated because, even with double effect, direct abortion is not considered a moral act. Christians are called to treat the illness and failing to do that could be an immoral act.

If a method of extracting the fetus alive existed...
I'm sure that ethicists would be spending a long time working on the implications of that. My off the cuff response would be that it certainly seems to be an improvement over disposing of the fetus but I couldn't give a response more than that. Looking at my nephew and his dicey situation from being born at 27 weeks and the health consequences that he still carries 3 years later (and fortunately his health consequences are diminishing over time), my guess is that the technology to do this practically won't be available for a while yet. That is, of course, a guess. Until that time it would seem that the death of the fetus is attached to the act of abortion and conversation regarding abortion will most likely treat it as such. Even when one talks about double effect, there is a proportionality to the response and it requires a grave situation to get to the level where the death of the fetus can be a legitimate side effect.

I am unable to draw the specific lines in the questions that you raise but they are good questions. I do know that there are medical ethicists that study this sort of thing and provide guidance. If I come across a reference I'll send it to you. My short answer is that since double effect is involved, it must be messy. :)

(2 parts due to LJ size restrictions)

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.
I have a couple of thoughts here. The first is that a Christian cannot commit an immoral act to achieve a moral good and have that act be considered moral. I realize that the sabotage thing was just for the purposes of example but I guess that's part of a "line".

In general, one is supposed to do what is in one's power to choose good and avoid evil so applying that would seem to indicate that you are certainly responsible for yourself and you are responsible for other situations where you can reasonably be expected to act.

Finally, there is a concept called social sin that might help here. Social sin is a situation that is sinful by its nature but is supported or institutionalized in some way by the society as a whole. The typical example that is not particularly controversial in our time is slavery. The example you propose of the gun manufacturer probably doesn't seem to rise to quite that level but I can see how some might feel that it does. When faced with something at the level of a social sin, it is not something that an individual alone can change because, clearly, it is on a societal level. However, an individual is still called to do what they can to address the situation. In our form of government this would certainly be done in the voting booth and perhaps with letters to government representatives lobbying for better gun control laws or by possibly picketing the Smith & Wesson plant if you are able. Going back to abortion for a moment to use me as an example, imperfect as that example may be, to help specify a bit more. For me, it means that I consider a candidate's stance on abortion when casting my vote in an election where it is relevant and I go on the March for Life in DC each year. Should I do more? Perhaps I should, but I am not a debater or a picketer and have a relatively fierce dislike for both activities. All of that probably doesn't draw lines clearly enough to be fully satisfying but hopefully it helps clarify the thought process a bit more.

I hope I've been able to clarify some things and not offend with my questions.
I am certainly not offended by honest questions and yours have given me some more to ponder. Thank you. My knowledge certainly has its limits but I try to answer as best I can.

My short answer is that since double effect is involved, it must be messy. :)

Fair enough. :-)

I have a couple of thoughts here. The first is that a Christian cannot commit an immoral act to achieve a moral good and have that act be considered moral. I realize that the sabotage thing was just for the purposes of example but I guess that's part of a "line".

Right. And similarly, I think most people would agree that the guys who bomb clinics and shoot doctors are not acting in accord with Christian teachings no matter what the perpetrators say.

In general, one is supposed to do what is in one's power to choose good and avoid evil so applying that would seem to indicate that you are certainly responsible for yourself and you are responsible for other situations where you can reasonably be expected to act.

Judaism sometimes has a notion of widening circles, and I wonder if Christianity does too. For example, you must first combat poverty in your city, and then in your region, and then in your country, and then in the world at large. (There is a tangent about where poverty in the land of Israel fits in, and I am choosing to ignore it.) In preventing sin, the principle is similar -- mind yourself first, then your family, then your immediate community, and so on. This is not to say that you shouldn't intervene if you come across a problem that would not otherwise be "in scope" -- "do not stand idly by the blood of your brother" -- but in terms of proactive actions, you start closest to home.

When faced with something at the level of a social sin, it is not something that an individual alone can change because, clearly, it is on a societal level. However, an individual is still called to do what they can to address the situation.

That makes sense. While I knew the concept I had not heard the term "social sin" before.

Should I do more? Perhaps I should, but I am not a debater or a picketer and have a relatively fierce dislike for both activities.

You have to balance what you "ought" to do with what you can do -- and also with all the other demands on your time. You're doing more than many.

Thank you for taking the time to explain all of this.

You are correct that people who shoot doctors and bomb clinics are not behaving in a Christian manner.

Judaism sometimes has a notion of widening circles
I haven't heard that concept expressed as such but it makes sense to me. I assume that you don't have to complete dealing with poverty, for example, in your city before you address it on a regional level and that it's a way to express focus rather than limit behavior, correct?

You are correct in pointing out that there are many productive demands on time and that they have to be balanced. Of course we all do that kind of balancing act in life. I'll have to keep my ears open to see if I hear anything similar to the circles notion. Perhaps it'll come up if I end up taking another morality class at some point.

I assume that you don't have to complete dealing with poverty, for example, in your city before you address it on a regional level and that it's a way to express focus rather than limit behavior, correct?

Right. You're not forbidden to look more broadly, but that can be overwhelming sometimes and at the very least, you should try not to neglect the more immediate folks. Of course, sometimes the best way to help locally is to work regionally or nationally, so you have to take that into account too.

So, what follows is a response from a Catholic Christian perspective. [...] 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 don't think the issue being discussed was treatments of a condition, where the treatment might/would indirecltly harm the fetus, but rather conditions that make it impossible for a woman to survive a pregnancy.

For example, the *only* treatment for pregnancy-related eclampsia is to terminate the pregnancy. In many cases it is possible to deliver a severely premature baby, who may live or may die - I think we can both agree that delivering a baby who might or might not live is not an act that deliberately takes a life. But what if the fetus is not yet well-enough developed to have any chance at surviving? Do you risk a woman with pre-eclampsia's life by keeping her pregnant for another week so that her fetus has a 10% chance of living?

I admit that I had to look up the term eclampsia as I had heard it called toxemia but this is a case that I know well as my sister went through that just a few years ago. She was put on bed rest but that didn't work and she had to have an emergency c-section 27 weeks into the pregnancy. The chances of my nephew surviving were not good and he was tiny (2lb 2oz). Almost 3 years later he is doing fine but is a little small for his age, has lung damage, and visits the hospital due to, primarily respiratory, illness a few times a year. My sister had similar troubles, but not as severe with her second child but he was only about a month early. I can still remember how I felt during the phone call when my mother was telling me that my sister was rushed into the emergency room. The fear of losing her was very real.

So, my answer, which I believe to be in line with Catholic teaching, would be to do what you can. Do what you can to ensure that the mother can keep the baby, be it bed rest at home or in the hospital as necessary because that is still the child's best chance for survival. If that fails, deliver the baby and do what you can to help it to survive. In that situation if you've done what you can and the baby dies it is extremely unfortunate but you can't be faulted for it.

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