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Life and Potential Life:  Abortion in Jewish Tradition

Baruch  Atah Ado-nai Elo-henu Melech Ha'olam asher kidshanu be'mitzvotav ve'tzivanu la'asok bi'divray Torah.  

Blessing to You Ado-nai Our God, Sovereign of the Universe, who made us holy  with the mitzvoth and instructed us to study Torah.

Source Sheet by דף מקורות מאת Neil Tow
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Created July 8, 2016 · 346 Views · נוצר 8 July, 2016 · 346 צפיות ·
  1. (כז) וַיִּבְרָ֨א אֱלֹקִ֤ים ׀ אֶת־הָֽאָדָם֙ בְּצַלְמ֔וֹ בְּצֶ֥לֶם אֱלֹקִ֖ים בָּרָ֣א אֹת֑וֹ זָכָ֥ר וּנְקֵבָ֖ה בָּרָ֥א אֹתָֽם׃

    (27) And God created humans in God's image, in the image of God he created him; male and female God created them.

  2. God as the Source of Life imprints part of God's-self onto us.  The infinite meets the finite.  The Source of Holiness meets those charged with creating and maintaining holiness in the world.  Life itself, then, is sacred.

     

    What, though, defines life?  When does 'life' begin?  (And to stretch the question further, but beyond the scope of this discussion, when does life end?)

  3. (ו) שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּ֚י בְּצֶ֣לֶם אֱלֹקִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם׃

    (6) Whoever sheds the blood of a human, By a human shall his blood be shed; For in God's image Did God make humanity.

  4. This teaching appears after God permits human beings to eat meat.  Humans had been vegetarians prior to this moment.  It reinforces the sacredness of life, but does not yet answer the question of what constitutes life.

  5. (י) וַיֹּ֖אמֶר מֶ֣ה עָשִׂ֑יתָ ק֚וֹל דְּמֵ֣י אָחִ֔יךָ צֹעֲקִ֥ים אֵלַ֖י מִן־הָֽאֲדָמָֽה׃
    (10) Then He said, “What have you done? Hark, your brother’s blood cries out to Me from the ground!
  6. According to this text from Genesis Chapter 4 - the story of Cain who murders his brother Abel - what constitutes life?

  7. סנהדרין ע״ב ב:ל״ד-מ״ה

    ...יצא ראשו אין נוגעין בו לפי שאין דוחין נפש מפני נפש ואמאי רודף הוא שאני התם דמשמיא קא רדפי לה נימא מסייעא ליה רודף שהיה רודף אחר חבירו להורגו אומר לו ראה שישראל הוא ובן ברית הוא והתורה אמרה (בראשית ט, ו) שופך דם האדם באדם דמו ישפך אמרה תורה הצל דמו של זה בדמו של זה

    'If his head emerged' we do not touch him since we do not push away one life for another.  Why?  It is a pursuer (rodef)....A pursuer who was chasing another to kill him, say 'He is a Jew and a child of the covenant.' But the Torah said, 'The one who sheds blood, shall his own blood be shed.', meaning, save the blood of the pursued by the blood of the pursuer. 

  8. "[I was told] kill that person, if not, I will kill you...Let yourself be killed and do not murder.  How could you prove your blood is redder (than the potential victim's)?  Perhaps the potential victim's is redder than yours?  (Talmud, Pesachim 25b)

  9. Contrast the Sanhedrin case with the Pesachim case - What is the difference in the situation?  How does that difference inform the ruling?

     

    One approach to abortion in Jewish tradition is that the fetus is a pursuer/rodef.

  10. (כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ (כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃ (כד) עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃ (כה) כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)

    (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 penalty shall be life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, bruise for bruise.

  11. To whom or what does 'if other damage ensues' refer?  

     

    The Septuagint (Greek translation of the Torah, 3rd c. BCE) suggests the referent here is the fetus, not the woman.  Philo proposes the death penalty for causing an abortion.  The Talmudic teachers disagree - 'harm' refers to the woman based upon the following text from Exodus 21.(EJ)

  12. (יב) מַכֵּ֥ה אִ֛ישׁ וָמֵ֖ת מ֥וֹת יוּמָֽת׃
    (12) He who fatally strikes a man shall be put to death.
  13. This text, according to the Rabbis, does not apply to a fetus.(EJ)

  14. (ו) האשה שהיא מקשה לילד, מחתכין את הולד במעיה ומוציאין אותו אברים אברים, מפני שחייה קודמין לחייו. יצא רבו, אין נוגעין בו, שאין דוחין נפש מפני נפש.

    (6) A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.

  15. The reasoning here does not accept rodef (pursuer) as the basis for aborting the fetus, rather, it is an argument about preserving the life of the mother.  What does the source suggest about when life begins?  How do we make sense of 'her life comes before his' if the fetus is not yet 'alive'?  Is this a deficiency of language and categories?

  16. יבמות ס״ט ב:ל״ו
    טובלת ואוכלת עד ארבעים דאי לא מיעברא הא לא מיעברא ואי מיעברא עד ארבעים מיא בעלמא היא

    She performs the immersion but may eat terumah only until the fortieth day. For if she is not found pregnant36 she never was pregnant;37 and if she is found pregnant,38 the semen, until the fortieth day, is only a mere fluid.

  17. If the fetus until the 40th day is considered 'like water', then the fetus after the 40th day has a different status but is still not considered yet as 'living'.  

  18. גיטין כ״ג ב:ל״ב
    עובר ירך אמו הוא ונעשה כמי שהקנה לה אחד מאבריה:

    ...the fetus is it's mother's thigh...

  19. Here, the fetus is thought of as a part of the mother's body.  Consequently, if one of our 'limbs' is causing damage to the rest of the body, it may be removed in order to save the mother's health.

     

    We will see later rulings that extend the idea of a mother's health to both her physical and emotional well-being.

  20. (ז) המפלת ליום ארבעים אינה חוששת לולד, ליום ארבעים ואחד תשב לזכר ולנקבה ולנדה. רבי ישמעאל אומר: יום ארבעים ואחד תשב לזכר ולנדה, יום שמונים ואחד תשב לזכר ולנקבה ולנדה, שהזכר נגמר לארבעים ואחד והנקבה לשמונים ואחד. וחכמים אומרים: אחד ברית הזכר ואחד ברית הנקבה, זה וזה לארבעים ואחד.

    (7) If she miscarries on the fortieth day [since her prior immersion], she need not be concerned that it was a fetus. If [she miscarries] on the forty-first day, she should sit [for the required number of days] for a male and for a female, and for [being] a niddah. Rabbi Yishmael says: on the forty-first day she should sit for [the required number of days for one who gives birth to] a male and for [being] a niddah. On the eighty-first day she should sit for a male and for a female and for [being] a niddah, because [the formation of] a male is completed in forty-one [days], and a female in eighty-one. And the Sages say: this and that [are both completed] in forty-one.

  21. We see here a fuller account of how the identity of the fetus changes through the course of the pregnancy.

  22. Rabbi Jacob Emden (Germany, 1697-1776)

    "And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, so long as labor has not begun (or:  as long as the child has not yet begun to move); even if the mother's life is not in jeopardy, but only so as to save her from an evil associated with it that would cause her great pain...("When Life is in the balance", p. 92)

  23. *Rabbi Yehiel Jacob Weinberg:  1966 ruling permitting a woman who contracted rubella during the 1st trimester to abort due to fear it would be born "without some organ or without intelligence...causing her pain."

     

    *Rabbi Ben Zion Uzziel (former chief Rabbi of Israel) - case of a woman in danger of becoming totally deaf in both ears if she continued the pregnancy, ruled that "[deafness] will ruin the rest of her life, make her miserable al her days and make her undesirable in the eyes of her husband...Therefore...she should be permitted to abort her fetus.

     

    *Rabbi Eliezer Waldenberg (Jerusalem):  In the case of a baby who will have Tay-Sachs, "One should permit...abortion as soon as it becomes evident without doubt from the test that, indeed such a baby shall be born...if, indeed, we may permit an abortion according to the halachah because of 'a great need' and because of pain and suffering, it seems that this is the classic case for such permission.  And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological.  Indeed, psychological suffering is in many ays much greater than the suffering of the flesh.

     

    *Rabbi Kassel Abelson (Conservative, 1980s):  "If the tests indicate that the child will be born with major defects that would preclude a normal life and that make the mother and the family anxious about the future, it is permitted to abort the fetus.

     

    *Rabbi Isaac Klein (1979):  Abortion is permissible in all cases that the mother's physical or mental health is threatened by the likelihood of bearing a deformed child.  However, "...when in abortion is desired for reasons of convenience...it is forbidden."

    ("When Life is in the Balance, pp. 93-95)

  24. Summary of Roe V. Wade 1973 from www.lawnix.com

     

    Summary of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

    Facts

    Roe (P), a pregnant single woman, brought a class action suit challenging the constitutionality of the Texas abortion laws. These laws made it a crime to obtain or attempt an abortion except on medical advice to save the life of the mother.

    Other plaintiffs in the lawsuit included Hallford, a doctor who faced criminal prosecution for violating the state abortion laws; and the Does, a married couple with no children, who sought an injunction against enforcement of the laws on the grounds that they were unconstitutional. The defendant was county District Attorney Wade (D).

    A three-judge District Court panel tried the cases together and held that Roe and Hallford had standing to sue and presented justiciable controversies, and that declaratory relief was warranted. The court also ruled however that injunctive relief was not warranted and that the Does’ complaint was not justiciable.

    Roe and Hallford won their lawsuits at trial. The district court held that the Texas abortion statutes were void as vague and for overbroadly infringing the Ninth and Fourteenth Amendment rights of the plaintiffs. The Does lost, however, because the district court ruled that injunctive relief against enforcement of the laws was not warranted.

    The Does appealed directly to the Supreme Court of the United States and Wade cross-appealed the district court’s judgment in favor of Roe and Hallford.

    Issues

    1. Do abortion laws that criminalize all abortions, except those required on medical advice to save the life of the mother, violate the Constitution of the United States?
    2. Does the Due Process Clause of the Fourteenth Amendment to the United States Constitution protect the right to privacy, including the right to obtain an abortion?
    3. Are there any circumstances where a state may enact laws prohibiting abortion?
    4. Did the fact that Roe’s pregnancy had already terminated naturally before this case was decided by the Supreme Court render her lawsuit moot?
    5. Was the district court correct in denying injunctive relief?

    Holding and Rule (Blackmun)

    1. Yes. State criminal abortion laws that except from criminality only life-saving procedures on the mother’s behalf, and that do not take into consideration the stage of pregnancy and other interests, are unconstitutional for violating the Due Process Clause of the Fourteenth Amendment.
    2. Yes. The Due Process Clause protects the right to privacy, including a woman’s right to terminate her pregnancy, against state action.
    3. Yes. Though a state cannot completely deny a woman the right to terminate her pregnancy, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life at various stages of pregnancy.
    4. No. The natural termination of Roe’s pregnancy did not render her suit moot.
    5. Yes. The district court was correct in denying injunctive relief.

    The Court held that, in regard to abortions during the first trimester, the decision must be left to the judgment of the pregnant woman’s doctor. In regard to second trimester pregnancies, states may promote their interests in the mother’s health by regulating abortion procedures related to the health of the mother. Regarding third trimester pregnancies, states may promote their interests in the potentiality of human life by regulating or even prohibiting abortion, except when necessary to preserve the life or health of the mother.

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