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Sherry F. Colb

Abortion in Israel and the United States: A Lesson in Questioning Assumptions


Wednesday, January 6, 2010

Last week, while I was visiting Israel to teach a course on comparative reproductive rights, the country's two Chief Rabbis sent out a letter urging state-employed rabbis across the land to devote their Sabbath sermons to speaking out against abortion.

On the surface, such a letter might seem to suggest that pro-life groups around the world are quite similar to one another. Their views are apparently tied to religion, and it does not much matter what the religion is or whether the opposition appears in the U.S. or somewhere else.

To draw this conclusion, however, would be to miss important distinctions between how Judaism and Christianity (Catholicism, in particular) conceptualize abortion, and how the U.S. and Israel each treat the practice of terminating pregnancies.

When Does Life Begin? At Conception, Versus At Birth

The first major difference between the Catholic and Jewish views of abortion, respectively, is that Catholic doctrine holds that "life" begins at conception, while Jewish law holds that "life" begins at birth (or actually, when most of the baby's body has emerged from inside its mother's body). This does not mean that Judaism considers abortion a trivial or generally permissible procedure, but the difference does have important implications for how religious Catholic and religious Jewish women, respectively, are likely to think about their choices when they face an unwanted pregnancy.

I place "life" in quotations because here, the term refers to a value judgment, rather than an empirically verifiable observation about living and nonliving organisms. If "life" – in the sense of the existence of a being holding the same entitlement to live that any person has – begins at the moment of conception, then it does not matter whether a woman has an abortion in the first week of pregnancy or the very end of her third trimester. Either way, she is killing a fully-realized person, and such a killing is as impermissible as any other.

The belief that life begins at conception has other consequences as well. On this approach, the availability of early medical abortions – accomplished by a drug such as RU486, for example – is a very unfortunate development, because it makes abortion simpler, more private, and therefore more likely to occur.

Thinking of a zygote as "life" in this way means that when drugs such as RU486 succeed in moving abortion earlier into the pregnancy, this does not represent a countervailing benefit, any more than the murder of a three-year-old child would count as a "better" homicide than the murder of a four-year-old child. Earlier is better only if one considers life in the womb to be an evolving process, rather than a sudden development that occurs at the moment of fertilization.

Another Consequence of When Life Begins: What (If Anything) Counts as a Legitimate Reason for Abortion?

Another implication of Jewish/Catholic differences on the question of when "life" begins has to do with what might qualify as a legitimate reason for an abortion. There is agreement among even the most observant Jews that if a pregnancy threatens a woman's life, then the right thing to do is to kill the fetus to save the mother. Indeed, there is a passage in the Talmud that says that if a woman is in labor (i.e., at the very end of her pregnancy) and her life is in danger, then the proper course of action is to dismember the fetus limb from limb if necessary to prevent the mother's death. On the other hand, if most of the baby has already emerged, then abortion is prohibited, because we cannot favor one life (that of the mother) over another life (that of the baby).

Different thinkers have drawn quite divergent lessons from this Talmudic passage. Some have concluded that because the passage discusses a pregnant woman whose life is in danger, it follows that the only legitimate ground for an abortion is to save the mother's life.

Others, however, have concluded that although killing the fetus is mandatory under the circumstances of a threat to the mother's life, abortion may still be permissible under other, less extreme, circumstances.

In responsa literature, eminent rabbis, teachers, and heads of academies respond to specific questions about Jewish law with rulings and decisions meant to address situations not explicitly covered by existing sources of authority. One such responsa concluded that a woman could have an abortion for the benefit of her (already-born) infant, because if she continued her pregnancy, her milk supply would diminish substantially, to the detriment of her nursing child. Though the woman's life was not in danger, in other words, she could terminate her pregnancy to benefit her existing child by lengthening his or her opportunity to nurse.

Under Catholic doctrine, by contrast, abortion is never allowed, even if it is necessary to save the life of the mother. The Doctrine of Double Effect (which I covered in detail in a prior column) softens the impact of this rule a bit, because it permits the provision of medical treatment for a woman's life-threatening condition, even if the treatment will likely result in the fetus's death, so long as causing the death is not an inherent, intentional part of the treatment.

I suspect that most Catholics, at least in the United States, would not favor applying an absolute prohibition against abortion when the pregnant woman's life is at risk, but Jewish doctrine simply does not confront anyone with this demand in the first place.

The Concept of "Potential Life"

As mentioned above, Catholic law and Jewish law take distinct positions on what might constitute a valid reason for an abortion. I would suggest that this division stems quite naturally from disparate views on the question of when "life" begins. But if a fetus is not a "life," according to Jewish law, then what is it?

The answer to this seemingly simple question is not straightforward. One Biblical passage in Exodus states that if a man hits a pregnant woman and the woman miscarries, then the man must pay damages to the woman's husband (not a very modern idea, but recall that we are talking about the Bible). The passage goes on to say, however, that if the pregnant woman dies, then the man who caused her death must give his life for her life. From this, it would seem reasonable to conclude that a woman is a person (though one subject to her husband's dominion), while the fetus is a sort of property, the loss of which necessitates compensation rather than punishment. In the Talmud, moreover, the fetus as it exists prior to forty days into the pregnancy is described as being like water.

One could imagine therefore that abortion is acceptable under Jewish law in all circumstances. You generally can, after all, destroy your own property without triggering application of the criminal law. Yet the oral traditions, which are an essential part of Jewish law, do not take this approach. Instead, where abortion arises as an issue, it is treated as the taking of potential life, which is a harmful thing to do, though not as harmful as murder.

There has accordingly been debate among Jewish scholars on the question whether an abortion is allowed in the case of a severely abnormal fetus. And the consensus around saving the woman's life generally appears to extend to the woman's health as well, including her psychological health. Indeed, one of the Israeli Chief Rabbis who recently issued the letter opposing abortion said that there are cases when abortion is permitted "such as when there is a danger to the mother's life or in extreme welfare situations." (emphasis added).

Jewish law emphasizes the obligation (of men) to be fruitful and multiply, and this entails the wellbeing of the woman through whom the "multiplying" takes place. In this sense, Jewish law suggests that abortion is wrong – when it is wrong – in part because it frustrates the propagation of more people, rather than because it violates the individual rights of the fetus itself.

Under Catholic doctrine, of course, an abortion to save a woman's health or to avoid the birth of a severely abnormal child would be unequivocally prohibited, and no situation of "extreme welfare" would justify terminating a pregnancy.

Israeli Law Versus Jewish Law

Israeli law is not the same as Jewish law. Under Israeli law, abortion is a crime, except under four sets of circumstances: (1) when an abortion is necessary to save the mother's life or health (physical or psychological); (2) when an abortion is undertaken to prevent the birth of a severely abnormal child; (3) when an abortion will terminate a pregnancy conceived in rape, incest, or outside of marriage; and (4) when an abortion is undertaken by a woman over the age of 40 or under the minimum age for marriage.

Israeli law thus reflects the idea, first, that abortion is a serious and generally disfavored procedure – hence the criminal prohibition. It also, however, reflects the notion found in Jewish law, that an abortion is not the same thing as a murder, that an embryo or fetus is not a full person, and that therefore, a variety of circumstances under which having a baby might be undesirable qualify as legitimate grounds for terminating an unwanted pregnancy. The embryo or fetus thus has some value, but it does not have as much (or nearly as much) value as a born person.

Another feature of Israeli law is that fertility medicine is not only permissible but subsidized by the government. The subsidy reflects the importance of having children, a reaction in part to the Third Reich's extermination of six million Jews (including 1.5 million children) in Europe, and in part to the desire to continue to have a democratic Jewish state.

Under Catholic doctrine, fertility medicine is impermissible – for at least two reasons. First, it separates sexual union from procreation (by achieving the second without the first). Like artificial birth control (which achieves the first without the second), fertility medicine is therefore a sin.

Second, as currently practiced in the U.S., in vitro fertilization involves the creation of many more embryos than will actually be implanted in women. The excess embryos, which will eventually expire, are thus human casualties of fertility medicine, to the extent that they are all deemed to be full persons. This view of embryos, for example, animated former President Bush's limiting of funds for embryonic stem cell research, on the ground that he (and those who belong to his Evangelical Christian base, which seems more or less to share the Catholic position on "life") considered it to be objectionable human experimentation.

In the U.S., the Constitution, as interpreted by the Supreme Court, protects a right to abortion up until the point of fetal viability, with the caveat that regulation prior to viability is constitutionally valid under many circumstances. Interestingly, the structure of U.S. abortion law appears to take as its point of departure a view of embryonic development that mirrors that of Jewish doctrine.

First, U.S. law treats late abortions as morally worse than early abortions. This view is at odds with the Catholic approach but resembles the Jewish perspective on developing potential life. For this reason, the introduction of RU486 in Israel did not provoke the wrath of the (Jewish) religious right in the way that it did the (Christian) religious right in the U.S.

Second, U.S. law permits abortions that are necessary to save the woman's life or health. Jewish law, but not Catholic doctrine, condones this approach.

And third, U.S. law prohibits so-called "partial-birth" abortions, which are distinguished by the fact that the fetus has already been partially delivered (past a landmark) from the woman's body at the time that it is killed. Such an abortion harks back to the description of the difference between mandatory and proscribed feticide in the Talmud, where the point at which abortion becomes unacceptable is the point at which the fetus's body is more than half outside of the woman's body.

The Significance of the Difference Between Judaism's and Catholicism's Views of Abortion

Neither the United States nor the State of Israel prohibits all abortions, and neither country's law faithfully tracks any religious doctrine. So, readers might ask, why should we care that Judaism's approach to abortion differs from that of Catholicism (and, apparently, from that of Evangelical Christianity)? The law, readers may think, is what ought to count.

The answer – beyond the intrinsic interest of the topic – is that one should care because those who cite religion as a basis for condemning abortion as murder sometimes speak as though any devout person would necessarily join in this condemnation. They imply that only the secular population takes a less absolutist view of reproductive rights. In fact, however, we have seen that there is disagreement among the devout.

My colleague Steve Shiffrin, in his book The Religious Left and Church-State Relations, expressed the view that the religious left should engage with the religious right on its own terms. In keeping with this suggestion, I would urge those who wish to think about abortion in a religious framework to consider the fact that in this supposedly "Judeo-Christian" country, the "Judeo" tradition rejects the American Christian pro-life positions that an embryo is a full person from the moment of conception, and that abortion is akin to murder.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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