November 08, 2012

Choice

Thank goodness the election is over and we can get on with the fun things in our lives! The Bible clearly encourages men and women to procreate, and big families are regarded in our tradition as blessings. Avraham, for example, tells God that having a son is the one thing missing in his life. At the same time, we are told repeatedly of how profoundly women suffer, Sarah, Rivkah, Rachel, and later Shmuel’s mother Hannah because of their inability to reproduce for long periods of their lives.

So if having children is so important why should abortion (or contraception for that matter), ever be allowed? Jewish law is against abortion unless a woman’s life is in danger. In this we differ from Catholicism, for we do not consider a child to be a full-fledged human being until its head and the majority of its body has come out of the womb. And we do allow abortion to save her life. Neither do we consider what is in the mother’s womb to be anything more significant than liquid until after 40 days from conception. The issue of what constitutes a danger to a woman’s life is, interestingly, one of the areas where we see Jewish law responding to changing circumstances and knowledge. Many experts now include psychological damage into that zone. None that I know of would consider financial circumstances a reason for abortion (although there are increasingly Orthodox rabbis who would include this in the justification for contraceptive use).

The Talmud in Sanhedrin tells of how Rebbi Yehuda HaNasi had an argument with the Roman Emperor Antoninus about the question of when the soul enters the human body. And remember this is a theological issue rather than a legal one. Rebbi said it is from the moment that it acquires a human form (the Talmud assumes a period of three months for that, in Brachot 60a). Antoninus said it is when the egg is fertilized. To which Rebbi replied that, after consideration, Antoninus was right. And he quotes Job to support his position.

That story is remarkable in itself, in that the compiler of the Mishna was prepared to accept the superiority of Roman knowledge. But it also teaches us that although there is a developmental difference between the stages of the embryo, and we make use of that to allow for abortions under certain circumstances, pure logic really belongs to those who say you cannot differentiate in human life at all. Drawing the line is arbitrary. Nevertheless, halacha is practical, and we do draw lines. Jewish Law considers the fetus to be a limb of the mother until it has emerged from the womb. Which is why if the fetus endangers the life of the mother, we can ‘amputate’ it so that the existing, viable human, the mother, can live. This is the genius of Jewish law; that although Torah is paramount, it is trumped by the need to preserve life (Leviticus 18).

Ironically, in Jewish law killing a fetus before it reaches maturity is not a capital crime, but it is to a descendant of Noah (who, in previous times, if he or she adhered to the Seven Noachide Laws, had to be given equal civil rights in Jewish society). It sounds illogical. If the demands on a Noachide are in general far less strict, why be tougher in this issue? But if your culture is one that respects human life in general, and at high levels of concern, then you will only take it under the most extreme circumstances, such as to save a life. But if your culture treats human life casually in general, believes in child sacrifices (as most pagans then did), you will be much more lax and loose in how you deal with the unborn.

We do, indeed, value all life from egg to birth. But we may make use of it in its early stages to preserve and protect human life in specific and in general. But just as the law in regard to the fetus assumes a foundation of respect, so the way we legislate for women ought to assume a foundation of respect.

It has taken Western society a long time to come near to approaching women as equals and, sadly, in too many cultures, including some parts of our own, we are still a long way from it. The very fact that some, mainly males, want to remove personal choices from women over matters of terminating or preventing pregnancy, is indicative of the continuing male orientated mentality.

As a Jew, I know what my laws are and they lay down the boundaries. I have the freedom to choose to follow them. If some rabbis choose to be too cautious or prohibitive in applying Jewish Law in regard to women, that is a fault in them, not the law. But in the end, the woman is the one who must weigh up the conflicting emotions and traditions and decide for herself (or if she is married with her husband). It is the height of arrogance for people to decide for her in a democratic world on the basis of their own religious convictions or biases. All the more so, since most of us nowadays live in two or more moral and political frameworks. It is up to us to decide on our personal moral choices, not for others. Any more than others can tell us how to worship.

When it comes to legislation in a democracy, religions have no right to impose their stringencies on the general population, whether on free speech or free choice. Religious people can choose to abide by their Sabbaths, but they ought not impose them on others unless it is a democratic decision and then, as when you do not like whom the country voted for President, you can always pick up and move. That is why I support the right of women, in society in general, to have abortions and to make choices about their bodies. Nevertheless, given that there are alternatives, including contraception, I agree that the law should not be a free-for-all. There can be a balance as there is with driving a car--just because you are allowed to drive, that doesn’t permit you to drive dangerously.

Therefore, I am pro-choice but I strongly object to the implication that I am not pro-life. After all, Judaism is pro-life: "And you shall live by these commandments, not die by them." (TB Yoma 85b, etc.)

This is an example of the dishonesty of slogans that obscure truth. If anything, American pro-lifers are really pro-death. Many of them seem to want the mother to die before the fetus.

Most religious establishments want to stop abortions. Libertarians want to allow them to continue (with certain limitations). This is another example of how it can be morally compromising to have to accept the whole of any political platform and why religion in politics is so dangerous. What I choose to adhere to is not necessarily what should be imposed on everyone else.

8 Comments:

At 6:42 PM , Anonymous Anonymous said...

This reminds me of the time that someone pointed out to me that the so-called golden rule admonishing us to treat others as we wish to be treated, rather ignores the possibility that others might not want to be treated the in same way we do! :)

J Y

 
At 11:53 PM , Anonymous dk said...

Why didn't you mention Exodus 21:22-25

"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 may exact from him, the payment to be based on reckoning."

which is all about payment for damages and nothing at all to do with life. Isn't this one of the (three?) reasons abortion is allowed according to Jewish law?

The fetus being an object and not regarded as a life, and the payment for damage to this object going to the male owner (of the woman and the object she carries).

Does it sound too archaic, not quite modern enough, and quite out of step with the (wonderful!) US election result? Or has this particular section of halacha been overturned, re-interpreted, in some other way modified?

Or are we still supposed to be reading Exodus with the understanding that its application is still relevant? And if we are, don't you think it worth mentioning, in a right-on post about 'choice'?

Even as I write, I expect you to wriggle out of it and say something about how we all have choice, and something about interpretation, and so forth. But to skip all that, please could you fast forward and just tell me, where does Exodus 21:22-25 fit into your scheme of things? It's not as though I'm being awkward, I didn't say a word about Maimonides, and I haven't got the time to find a very peculiar medieval gynecological description that I once read with fascination and horror but which I think is sufficiently well known for you to probably know what I can't properly recall.

Thank you, in advance, for not fobbing me off!

But if you don't answer directly I'll dig out the stuff about the fetus being a pursuer (does that sound normal to you?) and the extremely weird medieval medical opinion based on vaginas as vestibules. (I didn't make that up, I remember the architectural parallels!) And then I'll want to know where these prize bits of Jewish law belong in the C21st, and noch, with 'choice'.

All best wishes, however you answer.



 
At 11:10 AM , Blogger Rabbi Jeremy Rosen said...

dk:
You are absolutely right. For reasons I am not entirely sure of I have always restricted my weekly pieces to around 1000 words and therefore I often cut out sections I think are dispensible to my essential argument ( I also excised a large chunk this week on cruelty to animals and shechitah and where one draws lines there and used Peter Singer to link the two issues). Were I to be writing a more academic piece I would write much more.
Even so your point is well taken. No fobs.
Jeremy

 
At 11:11 AM , Blogger Rabbi Jeremy Rosen said...

JY:
Too true and there is a certain naivitie amongst the idealists who prefer to stick to slogans than face complex realities.
J

 
At 1:37 PM , Anonymous dk said...

Thank you for a clear answer, on your editorial judgement.

Suppose for example, that all those American electoral candidates who publicly voiced their opinions about dinosaur flatulence being responsible for global warming, global warming science deriving from 'the pit of hell', who joked about global warming requiring us to wear nose clips to eliminate CO2, likened pregnancy as a consequence of rape to children born out of wedlock (from a father's perspective), believe that rapists' semen is in some way infertile since a 'woman's body has a way to shut down', and think that the method of conception, rape or consensual sex, is of no account, suppose all of these insane views actually led to positive outcomes.

For example, the politician who believed his unwed daughter's pregnancy to be the equivalent of conception by rape might, were he following a different narrative, be strongly in favour of elective abortion, and the man who thinks global warming science is from the pit of hell, might think we should be doing something to reduce the power of that science such as using public transport instead of personal vehicles but these positive outcomes would not make their opinions or the others, less mad or less abhorrent.

So to claim that because Judaism, under some circumstances, does not prohibit abortion and that this is a mark of sophistication or compassion or liberalism and is therefore deserving of applause, is to champion the lesser of various evils while focusing on the practical outcome rather than the source of the opinion.

My question was specifically about one source, Exodus 21:22-25. I didn't quote the other paragraphs, 23-24, but they follow from 22 which deals with damage to an object rather than to a life by enumerating the physical attributes (eyes, teeth, hands, feet and capacity to feel pain) which don't apply to the fetus.

“22 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 may exact from him, the payment to be based on reckoning. 23 But if other damage ensues, the payment shall be life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burning, wound for wound, bruise for bruise." (This is from the JPS English/Hebrew Tanach so nothing has been lost in translation.)

Assuming that Exodus 21:22-25 is a core text for halacha's views of abortion, what I asked is how is this incorporated into your views as set out in your post on 'choice'? Apart from the view of a fetus as not constituting a life, it accords women no more respect than is accorded to cattle.

I know there are more complicated sources and ideas which I accept cannot fit into a general blog post of 1,000 words but Exodus is not an obscure text, and the paragraphs I've quoted are short so I cannot see how editorial considerations apply. I would still like to know what you think about Exodus 21:22-25 which is accessible, straightforward and fundamental and should be easily accommodated into a blog in ways that are not possible for the differing interpretations of Maimonides and Rashi. It isn't unreasonable to ask a rabbi for an opinion on a biblical text in response to a blog post about the current trend among some American Christians to find biblical justification for banning abortion.

(I suspect we have rather quickly reached a typical impasse with you on the side of tradition and orthodoxy taking a pragmatic and liberal view and me, apparently on the side of liberalism, taking a much more fundamentalist one. Still, if you can accommodate Exodus 21:22-25 into your traditional, orthodox and pragmatic view point, I would really like to know the thought process!)

 
At 2:40 PM , Blogger Rabbi Jeremy Rosen said...

dk:

I'm really not sure what the problem is but here goes.

Yes the text certainly implies that a fetus is not the same as a living being otherwise causing its death would be a capital offence.

Similarly any damage to the woman herself would come under the general rules of damages.

What appears to be a contradictiion is the statement that the husband decides the value of the damages and the judges decide.

But that seems to me no different than the current secular system of assessing damages according to the potential earning power of the victim. In an era when most women did not work professionally it will have been the husbands career whether laborer, bricklayer, doctor or architect that will have decided how much the loss would be in terms of earning power and the court arbitrates.

Choice enters into the issue over an optional abortion not a forced miscarriage.
J

 
At 5:11 PM , Anonymous dk said...

In case I was wrong, I've just checked Rachel Biale, (mainstream, conservative and orthodox), "Women and Jewish Law: The Essential Texts, Their History, and Their Relevance for Today", Schocken, 1984. In Chapter 9, "Abortion", she writes, "The Bible only refers to accidental abortion, yet this reference lays the foundation of the halakhic discussion", p. 219. Immediately following this is the text from Exodus 21:22-25.

So that's the problem, "the foundation of the halakhic discussion" rests on a text which regards a fetus as inanimate and a woman as a man's belonging.

Do you really think there is nothing problematic about this? That it's the sort of thing to win friends (or votes?). The kind of thing you'd be happy to see quoted (without cringing) as 'what Jews believe'. By any normal standard this is peculiar, revolting and indefensible. You'd have to be schizophrenic to take part in a discussion with this as the text and think it possible to use it to support arguments that Judaism revers life and respects women. (I'm not saying it doesn't, but this text doesn't support those assertions.)

That the interpretation of this text admits a more lenient (balanced, humane, etc) view than some American Christians, does not make it less unacceptable.

I'm not interested in an apparent contradiction between whether the husband or the judges decide on the value of damages. Why not have Micky Mouse decide, or me decide what you'll be having for dinner? This is supposed to be about a woman's right to choose (what happens to her body), not whether anyone else thinks they have a say in the matter.

You liken the assessment of damages to a secular system "in an era when most women did not work professionally". How does this have any bearing on THIS ERA? I don't care what rules applied, or were relevant, or enlightened, in some other PAST era.

Has something changed since 1984 when Rachel Biale's book was published? Is Exodus 21:22-25 no longer the foundation text? If nothing at all has happened in the last 28 years, this being a very short span for Judaism, then this does still apply and we are still supposed to regard it as the foundation text for a discussion of the Jewish view of abortion.

 
At 7:23 AM , Blogger Rabbi Jeremy Rosen said...

dk:

Things have changed a great deal since Biblical times in relation to women (not enough perhaps but plenty ), not least of which is the end of polygamy. To assume that nothing has changed since Biblical times is simply wrong and to assume the women/chattel issue is relevant requires complete ignorance of current rabbinic literature.

And therefore given the vast amount of literature on the issue since Biblical times I judged it more helpful NOT to go to Biblical sources on the abortion issue precisely because in those days no one for one minute I think in Israelite circles would have thought of doing it other than where the mothers life was in serious danger. I certainly would not use Biales words and I would dispute that this is a good place to start.

J

 

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