Jewish Views on Abortion

Jewish Views on Abortion

Rabbi Immanuel Jakobovits

In recent years, no medico-moral subject has undergone a more revolutionary change of public attitudes than abortion. What was previously either a therapeutic measure for the safety of the mother or else an actionable criminal offense is now widely and legally performed not only as a means to prevent the birth of possibly defective children or to curb the sordid indignities and hazards endured by women resorting to clandestine operators, but simply for convenience to augment other birth-control devices. Under the mounting pressure of this shift in public opinion, generated by intense agitation and skillful propaganda campaigns, the abortion laws have been liberalized in many countries, starting with the British Abortion Act of 1967 and culminating in the decisions of the United States Supreme Court of January 22, 1973. In effect, abortion is now-or, pending anticipated changes in existing laws, will soon be-available in most parts of the Western world virtually on request, or at least at the discretion of doctors within some general guide-lines.

Many physicians have, of course, always claimed that the decision whether or not to terminate a pregnancy should be left to their judgment- a claim already for some time asserted on a wide scale through the establishment at many hospitals of "abortion boards," composed solely of physicians, charged with the responsibility of sanctioning all such operations.

In the Jewish view, this line of argument cannot be upheld.

The judgment that is here required, while it may be based on medical evidence, is clearly of a moral nature. The decision whether, and under what circumstances, it is right to destroy a germinating human life, depends on the assessment and weighing of , on determining the title to life in any given case. Such value judgments are entirely outside the province of medical science. No amount of training or experience in medicine can help in ascertaining the criteria necessary for reaching such capital verdicts, for making such life-and-death decisions. Such judgments pose essentially a moral, not a medical problem. Hence they call for the judgment of moral, not medical specialists.

Physicians, by demanding that as the practitioners in this field they should have the right to determine or adjudicate the laws governing their practice, are making an altogether unprecedented claim not advanced by any other profession. Lawyers do not argue that, because law is their specialty, the decision on what is legal should be left to their conscience. And teachers do not claim that, as the profession competent in education, the laws governing their work, such as on prayers at public schools, should be administered or defined at their discretion. Such claims are patently absurd, for they would demand jurisdiction on matters completely beyond their professional competence.

There is no more justice or logic in advancing similar claims for the medical profession. A physician, in performing an abortion or any other procedure involving moral considerations, such as artificial insemination or euthanasia, is merely a technical expert; but he is no more qualified than any other layman to pronounce on the rights or legality of such acts, let alone to determine what these rights should be, relying merely on the whims or dictates of his conscience. The decision on whether a human life, once conceived, is to be or not to be, therefore, properly belongs to moral experts, or to legislatures guided by such experts.

Jewish Law

Every monotheistic religion embodies within its philosophy and legislation a system of ethics-a definition of moral values. None does so with greater precision and comprehensiveness than Judaism. It emphatically insists that the norms of moral conduct can be governed neither by the accepted notions of public opinion nor by the individual conscience. In the Jewish view, the human conscience is meant to enforce laws, not to make them. Right and wrong, good and evil, are absolute values which transcend the capricious variations of time, place, and environment, just as they defy definition by relation to human intuition or expediency. These values, Judaism teaches, derive their validity from the Divine revelation at Mount Sinai, as expounded and developed by sages faithful to, and authorized by, its writ.

The Sources of Jewish Law

For a definition of these values, one must look to the vast and complex corpus of Jewish law, the authentic expression of all Jewish religious and moral thought. The literary depositories of Jewish law extend over nearly four thousand years, from the Bible and the Talmud, serving as the immutable basis of the main principles, to the great medieval codes and the voluminous rabbinical writings recording practical verdicts founded on these principles, right up to the present day.

These sources spell out a very distinct attitude on all aspects of the abortion problem. They clearly indicate that Judaism, while it does not share the rigid stand of the Roman Catholic Church which unconditionally proscribes any direct destruction of the fetus from the moment of conception, refuses to endorse the far more permissive views of many Protestant denominations. The traditional Jewish position is somewhere between these two extremes.

The Rulings of Jewish Law

While the destruction of an unborn child is never regarded as a capital act of murder (unless and until the head or the greater part of the child has emerged from the birth canal), it does constitute a heinous offense except when indicated by the most urgent medical considerations. The foremost concern is the safety of the mother. Hence, in Jewish law an abortion is mandatory whenever there is a genuine fear that a continued pregnancy might involve a grave hazard to the life of the mother, whether physical or psychiatric (such as the risk of suicide, following previous experiences of mental breakdown).

More difficult to determine-and still widely debated in recent rabbinic writings-is the judgment on abortions in cases of risks to the mother's health rather than to her life; of rape or incest; and of fears of physical or mental defects in children born to mothers who had German measles (rubella) or took certain teratogenic drugs (e.g. thalidomide) during the first months of pregnancy. Quite recently, several leading authorities have reaffirmed the Jewish opposition to abortion even in these cases, branding it as an "appurtenance of murder." But some others have lately given more lenient rulings in these circumstances, provided the operation is carried out within the first forty days following conception, or at least within the first three months. However, whatever the verdict in these particular cases, they are of course exceptional, and Jewish law would never countenance abortions for purely social or economic reasons.

Moral and Social Considerations

These conclusions, though deduced from ancient principles and precedents by legal reasoning, must be viewed in the context of Judaism's moral philosophy and against the background of contemporary social conditions. In Jewish thought the law, while legalistically constructed, is always but the concrete expression of abstract ideas, the vehicle to convey, as well as to implement, moral and religious concepts. Judaism uses the medium of law much as an artist presents the genius of his inspiration in colours on canvas, in sounds of music or in the building-blocks of sculptured and architectural designs. Accordingly, neither the rationale nor the significance of the Jewish rules on abortion-as indeed on any other subject with social ramifications-can be properly understood except by enucleating the spirit, the moral ethos, from the somatic letter of the law.

The moral thinking set out in the rest of this article, especially insofar as it concerns abnormal births and the products of rape or incest, reflects in particular the majority view of the stricter school of thought which sanctions abortions only for the safety of the mother.

The "Cruelty" of the Abortion Laws

At the outset, it is essential, in order to arrive at an objective judgment, to disabuse one's mind of the often one-sided, if not grossly partisan, arguments in the popular (and sometimes medical) presentations of the issues involved. A hue and cry is raised about the "cruelty" of restrictive abortion laws. Harrowing scenes are depicted, in the most lurid colors, of girls and married women selling their honor and their fortunes, exposing themselves to mayhem and death at the hands of some greedy and ill-qualified abortionist in a dark, unhygienic back-alley, and facing the prospect of being hunted and haunted like criminals for the rest of their lives- all because safe, honorable, and reasonably-priced methods to achieve the same ends are or were, barred from hospitals and licensed physicians' offices by "barbaric" statutes. Equally distressing are the accounts and pictures of pitifully deformed children born because "antiquated" abortion laws did not permit us to forestall their and their parents' misfortune. And then there are, of course, always heart-strings or sympathy to be pulled by the sight of "unwanted" children taxing the patience and resources of parents already "burdened" with too large a brood, not to mention the embarrassing encumbrance of children "accidentally" born to unwed girls.

There is, inevitably, some element of cruelty in most laws. For a person who has spent his last cent before the tax-bill arrives, the income tax laws are unquestionably "cruel"; and to a man passionately in love with a married woman the adultery laws must appear "barbaric." Even more universally "harsh" are the military draft regulations which expose young men to acute danger and their families to great anguish and hardship.

Moral Standards in Society

All these resultant "cruelties" are surely no valid reason for changing those laws. No civilized society could survive without laws which occasionally spell some suffering for individuals. Nor can any public moral standards be maintained without strictly enforced regulations calling for extreme restraints and sacrifices in some cases. If the criterion for the legitimacy of laws were to be the complete absence of "cruel" effects, we should abolish or drastically liberalize not only our abortion laws, but our statutes on marriage, narcotics, homosexuality, suicide, euthanasia, and numerous other laws which inevitably result in personal anguish from time to time.

So far our reasoning, which could be supported by any number of references to Jewish tradition, has merely sought to demolish the "cruelty" factor as a valid argument by which to judge the justice or injustice of any law. It still has to be demonstrated that restrictions on abortion are morally sound enough and sufficiently important to the public welfare to outweigh the consequential hardships in individual cases.

The Hidden Side of the Problem

What the fuming editorials and harrowing documentaries on the abortion problem do not show are pictures of radiant mothers fondling perfectly healthy children who would never have been alive if their parents had been permitted to resort to abortion in moments of despair. There are no statistics on the contributions to society of outstanding men and women who would never have been born had the abortion laws been more liberal. Nor is it known how many "unwanted" children eventually turn out to be the sunshine of their families. . .

Abortion Statistics

There are, then even from the purely utilitarian viewpoint of "cruelty" versus "happiness" or "usefulness"-two sides to this problem, and not just one as pretended by the pro-abortion lobby. There are the admittedly tragic cases of maternal indignities and deaths as well as of congenital deformities resulting from restrictive abortion laws. But, on the other hand, there are the countless happy children and useful citizens whose births equally result from these laws. What is the ratio between these two categories?

Clearly, any relaxation of the abortion laws is bound greatly to increase the rate of abortions, which was already high even under rigid laws. In England, for example, the figure shot up from a rate of 25,000 per annum in 1967 to 90,000 by 1971. On the apparently realistic assumption that the demand for abortions, in the absence of restrictive legislation, might be 500 or more per thousand live-births, it is estimated that the figure will approach three million in the United States by 1980.

Out of this staggering number of annual abortions only a minute proportion would be fully justified for the principal reasons advanced by the advocates of liberalization. Based on the approximate rate of 30,000 abnormal births annually (as reliably estimated), and making allowance for the number of women whose hazards would be reduced if they did not resort to clandestine operations, well over 95% of all abortions would eliminate normal children of healthy mothers.

In fact, as for the mothers, the increased recourse to abortion (even if performed by qualified physicians), far from reducing hazards, would increase them, since such operations leave at least five per cent of the women sterile, not to mention the rise in the resultant mortality rate. One can certainly ask if the extremely limited reduction in the number of malformed children and maternal mortality risks really justifies the annual wholesale destruction of three million germinating, healthy lives, most of them potentially happy and useful citizens, especially in a country as under-populated as America (compared to Europe, for instance, which commands far fewer natural resources).

The Individual's Claim to Life

These numerical facts alone make nonsense of the argument for more and easier abortions. But moral norms cannot be determined by numbers. In the Jewish view, "he who saves one life is as if he saved an entire world"; one human life is as precious as a million lives, for each is infinite in value. Hence, even if the ratio were reversed, and there was only a one per cent chance that the child to be aborted would be normal-in fact the chances invariably exceed 50% in any given case-the consideration for that one child in favor of life would outweigh any counter-indication for the other 99 per cent.

But, in truth, such a counter-indication, too, is founded on fallacious premises. Assuming one were 100 per cent certain (perhaps by radiological evidence or by amniotic fluid tests) that a child would be born deformed, could this affect its claim to life? Any line to be drawn between normal and abnormal beings determining their right to live would have to be altogether arbitrary. Would a grave defect in one limb or in two limbs, or an anticipated sub-normal intelligence quotient of seventy-five or fifty make the capital difference between one who is entitled to live and one who is not? And if the absence of two limbs deprives a person of his claim to life, what about one who loses two limbs in an accident? By what moral reasoning can such a defect be a lesser cause for denying the right to live than a similar congenital abnormality? Surely life-and-death verdicts cannot be based on such tenuous distinctions. The only cases possibly excluded by this argument might be to prevent the birth of children who would in any event not be viable, such as Tay-Sachs babies, if their foetal affliction is definitely established by amniocentesis.

The Obligations of Society

The birth of a physically or mentally maldeveloped child may be an immense tragedy in a family, just as a crippling accident or a lingering illness striking a family later in life may be. But one cannot purchase the relief from such misfortunes at the cost of life itself. Once any innocent person can be sacrificed because he has lost his absolute value, the worth of every human life would become relative-to his state of health, his usefulness to society or any other arbitrary criterion-and no two human beings would have an equal claim to life, thus destroying the only foundation of the moral order. So long as the sanctity of life is recognized as inviolable, the cure to suffering cannot be abortion before birth, any more than murder (whether in the form of infanticide, euthanasia or suicide) after birth. The only legitimate relief in such cases is for society to assume the burdens which the individual family can no longer bear. Since society is the main beneficiary of restrictive public laws on abortion (or homicide), it must in turn also pay the price sometimes exacted by these laws in the isolated cases demanding such a price.

Just as the state holds itself responsible for the support of families bereaved by the death of soldiers fallen in the defense of their country, it ought to provide for incapacitated people born and kept alive in the defense of public moral standards. The community is morally bound to relieve affected families of any financial or emotional stress they cannot reasonably bear, either by accepting the complete care of defective children in public institutions, or by supplying medical and educational subsidies to ensure that such families do not suffer any unfair economic disadvantages from their misfortune.

Illegitimate Children

Similar considerations may apply to children conceived by rape. The circumstances of such a conception hardly have bearing on the child's title to life, and in the absence of any well-grounded challenge to this title there cannot be any moral justification for an abortion. Once again, the burden rests with society to relieve an innocent mother (if she so desires) from the consequences of an unprovoked assault upon her virtue if the assailant cannot be found and forced to discharge this responsibility to his child.

In the case of pregnancies resulting from incestuous, adulterous, or otherwise illegitimate relations (which the mother did not resist), there are additional considerations militating against any sanction of abortion. Jewish law not only puts an extreme penalty on incest and adultery, but also imposes fearful disabilities on the products of such unions. It treats relations as capital crimes, and it debars children born under these conditions from marriage with anyone except their like (Deut. 23:3).

(1) The Deterrent Effect

Why exact such a price from innocent children for the sins of their parents? The answer is simple: to serve as a powerful deterrent to such hideous crimes. The would-be partners to any such illicit sexual relations are to be taught that their momentary pleasure would be fraught with the most disastrous consequences for any children they might conceive. Through this knowledge they are to recoil from the very thought of incest or adultery with the same horror as they would from contemplating murder as a means to enjoyment or personal benefit. Murder is comparatively rare in civilized society for the very reason that the dreadful consequences have evoked this horror of the crime in the public conscience. Incest and adultery, in the Jewish view, are no lesser crimes; hence the juxtaposition of murder and adultery in the Ten Commandments, for it makes little difference whether one kills a person or a marriage. Both crimes therefore require the same horror as an effective deterrent.

(2) Parental Responsibility

Why create this deterrent by visiting the sins of the parents on their innocent children? First, because there is no other way to expose an offense committed in private and usually beyond the chance of detection. But, above all, this responsibility of parents for the fate of their children is an inexorable necessity in the generation of human life; it is dictated by the law of nature no less than by the moral law. If a careless mother drops her baby and thereby causes a permanent brain injury to the child, or if a syphilitic father irresponsibly transmits his disease to his offspring before birth, or if parents are negligent in the education of their children, all these children may innocently suffer and for the rest of their lives expiate the sins of their parents. This is what must be if parental responsibility is to be taken seriously. The fear that such catastrophic consequences ensue from a surrender to temptation or from carelessness will help prevent the conception of grossly disadvantaged children or their physical or mental mutilation after birth.

Public Standard v. Individual Aberration

In line with this reasoning, Jewish law never condones the relaxation of public moral standards for the sake of saving recalcitrant individuals from even moral offenses. A celebrated Jewish sage and philosopher of the fifteenth century, in connection with a question submitted to his judgment, averred that it was always wrong for a community to acquiesce in the slightest evil, however much it was hoped thereby to prevent far worse excesses by individuals. The problem he faced arose out of a suggestion that brothels for single people be tolerated as long as such publicly controlled institutions would reduce or eliminate the capital crime of marital faithlessness then rampant. His unequivocal answer was, "It is surely far better that individuals should commit the worst offenses and expose themselves to the gravest penalties than publicly to promote the slightest compromise with the moral law."

Rigid abortion laws, ruling out the "correction" of rash acts, compel people to think twice they recklessly embark on illicit or irresponsible adventures liable to inflict lifelong suffering or infamy on their progeny. To eliminate the scourge of illegitimate children more self-discipline to prevent their conception is required, not more freedom to destroy them in the womb. For each illegitimate child born because the abortion laws are strict, there may be ten or more such children conceived because these laws are strict.

The exercise of man's procreative faculties, making him (in the phrase of the Talmud) "a partner with God in creation," is man's greatest privilege and gravest responsibility. The rights and obligations implicit in the generation of human life must be evenly balanced if man is not to degenerate into an addict of lust and a moral parasite infesting the moral organism of society. Liberal abortion laws would upset that balance by facilitating sexual indulgences without insisting on corresponding responsibilities.

Therapeutic Abortions

This leaves primarily the concern for the mother's safety as a valid argument in favor of abortions. In the view of Judaism, all human rights, and their priorities, derive solely from their conferment upon man by his Creator. By this criterion, as defined in the Bible, the rights of the mother and her unborn child are distinctly unequal, since the capital guilt of murder takes effect only if the victim was a born and viable person. "He that smites a man, so that he dies, shall surely be put to death" (Exodus 21:12); this excludes a foetus, according to the Jewish interpretation. This recognition does not imply that the destruction of a foetus is not a very grave offense against the sanctity of human life, but only that it is not technically murder. Jewish law makes a similar distinction in regard to the killing of inviable adults. While the killing of a person who already suffered from a fatal injury (from other than natural causes) is not actionable as murder, the killer is nevertheless morally guilty of a moral offense.

This inequality, then, is weighty enough only to warrant the sacrifice of the unborn child if the pregnancy otherwise poses a threat to the mother's life. Indeed, the Jewish concern for the mother is so great that a gravid woman sentenced to death must not be subjected to the ordeal of suspense to await the delivery of her child. (Jewish sources brand any delay in the execution, once it is finally decreed, as "the perversion of justice" , since the criminal is sentenced to die, not to suffer. It should be added, however, that in practice Jewish law abolished the death penalty to all intent and purposes thousands of years ago, by insisting on virtually impossible conditions, such as the presence of and prior warning by two eyewitnesses.)

Such a threat to the mother need not be either immediate or absolutely certain. Even a remote risk of life invokes all the life-saving concessions of Jewish law, provided the fear of such a risk is genuine and confirmed by the most competent medical opinions. Hence, Jewish law would regard it as an indefensible desecration of human life to allow a mother to perish in order to save her unborn child.

This review may be fittingly concluded with a reference to the very first Jewish statement on abortion. Commenting on the version (itself a misrepresentation) of the only Biblical reference, or at least allusion, to abortion in Exodus 21:22-23, the Alexandrian-Jewish philosopher, Philo, at the beginning of the Current Era declared that the attacker of a pregnant woman must die if the fruit he caused to be lost was already "shaped and all the limbs had their proper qualities, for that which answers to this description is a human being . . . like a statue lying in a studio requiring nothing more than to be conveyed outside." The legal conclusion of this statement, reflecting Hellenistic rather than Jewish influence, may vary from the letter of Jewish law; but its reasoning certainly echoes the spirit of Jewish law. The analogy may be more meaningful than Philo could have intended or foreseen. A classic statue by a supreme master is no less priceless for being made defective, even with an arm or a leg missing. The destruction of such a treasure can be warranted only by the superior worth of preserving a living human being.

Dr. Immanuel Jakobovits was for many years the Chief Rabbi of the United Kingdom (and the Commonwealth); now retired, he sits in the House of Lords. A prolific writer on Jewish affairs (he authored ), he published the original version of this article in the book (Western Reserve University Press, 1967); at our request, he revised and updated it for our first issue (Winter, 1975), and we reprint that version here.

This article was taken from the Spring 1996 issue of "The Human Life Review." Published by THE HUMAN LIFE FOUNDATION, INC., Editorial Office, Room 840, 150 E. 35th St., New York, N.Y. 10016. Subscription inquiries should be sent directly to the editorial office. Subscription price: $20.00 per year.

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