The chief biblical source referring to abortion is Exodus 21:22–25 concerning the man who inadvertently strikes a pregnant woman, causing her to lose the pregnancy. The attacker is not liable for homicide for the death of the fetus, but if the woman dies, the man is liable for her homicide. In either case, monetary compensation for the loss of the fetus is paid to the father. The infrequently used word ason (misfortune, accident), which according to most rabbinic texts refers to the death of the mother, was translated by the Septuagint as referring to the fetus and its stage of development. That is, if the fetus had reached a certain stage of development of identifiable human formation, the attacker was liable for its death. This difference reflects the two opposing schools of Greek philosophy: the Academy, represented by Plato/Aristotle, who held that human status obtained at fetal formation, and the Stoics, who held that the fetus is dependent on the mother. The Septuagint translation was the beginning of the separate approaches on the topic of abortion of Judaism and Christianity (which later set quickening, i.e. fetal movement, as the criterion for sufficient formation and still later equated conception with formation). Philo (Special Laws II, 19) has a similar approach to that of the Septuagint and Rabbi Ishmael (BT Sanhedrin 57b) uses Genesis 9:6 to establish abortion as a capital crime for non-Jews. Josephus has contradictory positions: in Antiquities (IV, 278) he relates to the monetary fine in the Exodus text, while in Against Apion (II, 202) he considers women who abort as murderers. The contemporary Roman Catholic position is that ensoulment occurs at conception. Abortion makes baptism impossible for Christians, leaving the fetus damned eternally by original sin. Ensoulment is not a halakhic issue, since full human status in Judaism pertains only at the birth of a full-term baby. The Hellenistic position and that of the early church stand in opposition to the position which developed in the Land of Israel and which became normative Jewish law. Although there was some tendency to accept the Hellenistic position by ascribing levels of vitality to the fetus, it never attained full human status. Consequently, abortion was never considered homicide in Jewish law.
The halakhic status of an embryo/fetus depends upon the stage of its development. From conception to the fortieth day, it is considered to be merely water. At three months the pregnancy is physically recognizable. Prior to labor the fetus is considered a “limb of its mother,” i.e. without independent legal status. During labor, before the head (or the majority of the body in a breech birth) is delivered, the fetus is considered a living being but one whose life is less valuable than the mother’s. After the head or the majority of the body is birthed, the fetus has a nearly equal status with the mother, especially if it is a full-term pregnancy. Only after a full-term pregnancy or survival of the premature fetus for thirty days does full human status adhere.
The modern abortion debate which centers on women’s control over their bodies, choice, prenatal diagnosis of congenital and other defects and their impact on the ability or desire of the woman to raise such a child, and the health status of the child, differs significantly from that of the traditional rabbinic sources. Oholot 7:6 states that if a woman is having difficulty giving birth, the midwife may dismember the fetus in utero in order to extract it to save the mother’s life.
A few other Talmudic texts shed some light on the opinions concerning abortion. Arakhin 1:7 demands that a pregnant woman who happens to be liable to capital punishment for some transgression be executed prior to giving birth unless she has begun to give birth (yashvah al ha-mashber). This term generally refers to the pushing stage of labor, not the early stages of contractions. The mode of execution guarantees that the fetus is killed in utero before the mother, i.e. the first stone is dropped on her abdominal area. However, if she has begun to deliver the fetus, the woman is permitted to complete the birth before her execution. This text certainly demonstrates that prior to a late stage in labor the fetus is considered part of the mother. Arakhin 7ab permits Sabbath transgression in order to bring a knife to perform a post-mortem cesarean section for a woman who has died in labor. This is to be understood as transgressing one Sabbath in order that many future Sabbaths be observed, and not because the fetus has the status of nefesh. Although there are situations in which a woman could die while giving birth and a fetus could survive for a few moments after her death, it is absurd to consider that a post-mortem cesarean would be performed if the fetus had not reached a stage of viability, i.e. at least seven months. Sanhedrin 72b discusses the Mishnah in Oholot, concentrating on why the categorization of the fetus as a pursuer (rodef) is abandoned once the head is born. If it is a pursuer, it would also be a pursuer once the head emerged. The text concludes that at that point heaven, not the fetus, is pursuing the mother. Tosefta Gittin 3:8–9 exempts from damages a physician who inadvertently injures a mother while performing an embryotomy under the court’s authority.
A number of Talmudic discussions reflect the unwillingness of certain sages to classify severely deformed and nonviable products of conception as human (JT Niddah and BT Niddah 3, Mishnah Bekhorot 6, Mishnah Keritot 1). Consequently, in reference to some aspects of birth (such as birth impurity, obligation of the birth sacrifice, or days of the “blood of purity”), the product of conception was not considered human nor was the act of giving birth considered birth. This certainly opens the possibility that these products of conception, some of which can now be identified prenatally, may be aborted without halakhic objection.
Rashi (Sanhedrin 72b) understands Mishnah Oholot 7:6 to mean that abortion is permitted because the fetus does not have the status of a nefesh. Most of the poskim (decisors) who have taken a lenient stand concerning abortion have relied on Rashi’s interpretation that the fetus is not a nefesh. Maimonides requires that no mercy be shown the fetus because it is acting like a pursuer (ke-rodef), who may be killed in order to protect the mother. The life of the mother has priority and killing the fetus is not considered homicide because the fetus is considered to be like a pursuer. Strangely, for Maimonides this categorization holds only until the head or the majority of the body is born rather than extending the category to the completion of the birth. Both terms, rodef and nefesh, are used by Maimonides (Hilkhot Rozeah 1:9), making it possible to interpret that he acknowledges and applies both concepts, i.e. prior to the birth of the head or the majority of the body in a breech birth, the fetus is not a nefesh. After that time, the fetus’s status changes, it becomes a nefesh and the category of rodef applies. Maimonides may have been very lenient about abortion prior to the birth of the head/majority of the body, because the fetus does not have the status of a nefesh. Several earlier poskim interpret Maimonides in this manner but most modern poskim and authors on the topic do not, preferring to understand him in a very stringent manner, i.e. that the fetus is a rodef because it is a nefesh, even prior to the birthing process. This would make the fetus a murderer if the mother died, a reductio ad absurdum not noticed by these poskim.
By applying the principle that “anything forbidden to Gentiles is certainly forbidden to Jews,” Tosafot (Sanhedrin 59a, Hullin 33a) extend the prohibition of Gentiles to abort to Jews, but without the legal liability. They are clearly not relying on traditional sources for this prohibition and create a somewhat circular argument to do so. It is significant that this development took place in Catholic Europe where abortion was forbidden by the church. Elsewhere (Niddah 44b) Tosafot state that it is permitted to kill the fetus. Rabbenu Nissim (Spain, fourteenth century) in his commentary on the Rif (Isaac b. Jacob Alfasi, 1013–1103) (Hullin 58a) states that there is no delay in the execution of a pregnant woman: since the fetus has not emerged, we do not take it into consideration. This demonstrates divergent opinions during the period of the Rishonim (early authorities: mid-eleventh to mid-fifteenth centuries).
Although Maimonides’s position is quoted in the Shulhan Arukh, not all Aharonim (later rabbinic authorities) accepted the rodef argument. R. David ibn Zimra (originally Spanish, 1479–1573) espouses Rashi’s argument that the fetus is not a nefesh. R. Yehoshua Falk (1555–1614) also rejected Maimonides’s rodef argument, preferring Rashi’s position. R. Yosef Trani (Turkey, 1568–1639) accepts Tosafot’s argument that for Jews there is a prohibition involved in abortion and defines that prohibition as “wounding” the mother. The prohibition holds only in cases where there is not sufficient reason for abortion. R. Yair Bachrach (Germany, 1638–1702), when asked whether a woman who conceived from an adulterous relationship was permitted to abort the fetus, concluded that feticide does not constitute murder, the life of the fetus prior to the onset of labor does not warrant setting aside Sabbath laws, and that Maimonides would probably accept Rashi’s view that the fetus is not a nefesh. He interprets Oholot as referring only to life-threatening situations, that once labor begins the fetus attained a higher status which prevents abortion for non–life-threatening situations, and that abortion for any other reason is forbidden due to wastage of seed. When asked a similar question about aborting a mamzer (offspring of a forbidden relationship), R. Jacob Emden (Germany, 1660–1718) responded that since the woman’s life is forfeit because of her adultery, aborting a fetus which is part of herself is not prohibited. He accepts that there is a prohibition against abortion but leniency is not limited to life-threatening situations and can be extended to situations of “great need.” He claims that in the case of a mamzer, it may even be considered a mitzvah to abort. R. Ayash (Algiers, d. 1760) made a distinction between using drugs to cause an abortion (relying on the exemption of women from procreation and the permission to use a “cup of roots” which may have been an abortifacient) and physical dismemberment of the fetus conceived while the mother is still nursing. He allows the former, stating that at most a rabbinic prohibition is involved. He takes into account the danger to the nursing child due to the subsequent pregnancy and not merely danger to the mother. R. Isaac Schorr (Galicia, eighteenth century) also understood that Maimonides, like Rashi, accepted the nefesh argument, and therefore concluded that if a woman were in danger, a fetus could be aborted even if the fetus is not the source of her danger. R. Meir Eisenstadt (c. 1670–1744) suggested that in a case where both mother and fetus would die if nothing were done, it would be appropriate to prefer the mother’s life over the fetus’s life even if the fetus’s head had emerged. Other rabbinic opinions lean variously toward Maimonides’s stringent position or Rashi’s lenient position or a combination of the two. An example of the latter is that of R. Shneur Zalman (Lublin, nineteenth century) who claims that Maimonides needs the rodef principle to deal with the dangerous situation after labor has begun, when the fetus has been uprooted and is no longer a limb of its mother. R. Yehuda Perilman (Minsk, nineteenth century) permits immediate post-coital contraception in the case of rape and extends this uprooting to later periods in the pregnancy. R. Hayyim Soloveitchik (1853–1918) creates two new halakhic categories—the semi-rodef and the semi-nefesh—for a stringent reconciliation of Maimonides and Rashi. R. Joseph Hayyim Al-Hakam (Baghdad, 1835–1909), when asked if it was permissible to abort a mamzer, suggested that this situation constitutes a great need because of the family defect and disgrace and hence abortion should be permitted. R. Haim Ozer Grodzinsky (Lithuania, 1863–1940), when asked whether a pregnant woman suffering from lung disease could abort, submitted that both Rashi and Maimonides would allow abortion to save the mother from the fetus (who is a limb of its mother) even if her life would not be threatened until the actual birth. R. Ben Zion Ouziel, who served as the Sephardi Chief Rabbi of Palestine/Israel, allowed abortion for a woman who was at risk of deafness as a result of the pregnancy. Ouziel required some need to justify abortion, even a “slight need.” He also permitted the abortion of a mamzer because of the ongoing curse on the parents for adultery. In the case of the pregnant single woman, no curse was involved and hence abortion was prohibited, according to Ouziel. At no point in the Responsa literature up to the twentieth century is abortion considered murder. There are definitely positions which allow abortion even when the mother’s life is not at stake and lenient positions outnumber the more stringent positions. It should also be noted that prior to the mid–twentieth century abortion was generally prohibited by civil law and abortion procedures were quite often dangerous.
In the twentieth century the abortion issue became prominent in both North America and Europe. Vehement public debate and lawsuits led to the Roe v. Wade decision of 1973, which embedded abortion rights in American law, and the striking down of the anti-abortion legislation in Canada as contrary to the Charter of Rights. On the other hand, the militant pro-life position of the Catholic Church and various fundamentalist Christian groups became the model for modern rabbinic positions on abortion. Pro-choice was considered to be morally reprehensible on the basis of “whatever is forbidden to Gentiles should certainly be forbidden to Jews.” The basic fact that the mother’s life took precedence over the fetus’s life was the major distinguishing factor between most Orthodox positions published in English and the pro-life positions. Rabbis responded to changes in sexual norms with repugnance and sought to prevent licentiousness by forbidding abortion. In order to remain consistent, rabbis and Orthodox writers would sometimes espouse positions which had no basis in traditional Jewish sources and use language such as “appurtenance to murder” (Unterman), “crime” (Jacobovits) and “moral murder” (Rosner). Even rabbis and authors who wrote more comprehensively on abortion would de-emphasize, dismiss or denigrate lenient positions.
Oholot 7:6 has led all poskim to agree that if the birth (and they extrapolate that to include the pregnancy itself) endangers a woman’s life, abortion is acceptable even at the moment of birth. The disagreements among the poskim reflect the level of damage to the woman which they considered acceptable in order not to abort or cause the death of the fetus at birth. Definitions of severe damage to the woman vary from the woman’s loss of a major organ (e.g. a kidney) or sense (e.g. sight), permanent damage to a major organ, loss of a less significant organ (e.g. a limb), permanent damage to such an organ or passing damage to it. The greatest point of contention is the woman’s psychological state. For some, psychological damage as a result of the pregnancy or as a result of the consequences of caring for a defective child or giving birth to a mamzer constitutes severe damage which would allow for abortion (variously, R. Yisraeli, Weinberg, Al Hakam and Waldenberg), while others totally reject this position (variously, R. Isser Yehuda Unterman, Zweig and Moses Feinstein). In articles appearing in English the situation is presented as if none of the poskim are willing to relate to the physical condition of the fetus/child but only to the effect of that condition on the mother and, to some extent, on other family members. For example, R. Eliezer Waldenberg allowed abortion of a Tay-Sachs fetus up to the seventh month of gestation, but only because of the hardship on the parents. R. Shaul Yisraeli rejected the claim that abortion should be forbidden because of “wounding” the mother and the prohibition against destroying property. Writing with regard to a drug commonly given in the mid–1960s in Israel which yielded fetal abnormalities, he allowed abortion because of the “great need” of the parents, i.e. the psychological difficulties in raising such a child. Moreover, he suggested that children afflicted with impaired mental capacity would not be capable of performing mitzvot. Together with the great need of parents, he allowed abortion in such a case. Most Israeli poskim freely allowed abortion to women who were exposed to German measles in early pregnancy during the epidemic in the late 1970s. This may reflect the political reality of a health-care system and social services that are unable to cope with large numbers of extremely damaged children.
The Babylonian Talmud, in a discussion which concludes that women are not obligated in procreation, refers to sama de-akarim (elsewhere: kos shel ikarin, a cup of roots), which is normally considered a contraceptive drink. Judith, wife of Rabbi Hiyya, was allowed such a drink because of her extremely difficult births (Yevamot 65b). Ancient Egyptian, Greek and Latin medical texts referred to the use of various compounds to encourage a late period to appear. Many of these compounds were actually early abortifacients. It is possible that kos shel ikarin may also be in this category, since the same Hebrew root can mean both “to uproot” and “infertility.”
Because various tannaitic and amoraic texts consider that there is no confirmation of pregnancy until three months after conception (Mishnah Niddah 1:4), the use of “morning-after” pills or RU-486 is not problematic for early abortions. According to rabbinic text, a fetus was not viable until the seventh month. This time frame reduces halakhic difficulty with abortion within that period. Just as in the modern abortion debate, the earlier the abortion is performed, the less objection there is to it. Prenatal diagnostic tests are problematic according to those poskim who are unwilling to take the psychological state of the mother or the stability of the existing family into account, because the results of the testing may encourage abortion. They consider the pain and suffering of having a severely defective child part of God’s plan to which human beings are not privy and hence have no right to change. Some of these poskim also turn a blind eye to abortion in the case of rape or incest. One area of leniency in abortion involves IVF (in-vitro fertilization) techniques which allow destruction of defective fertilized ova prior to implantation. Another area is multi-fetal pregnancy reduction, which has been seen as a life-saving technique for the remaining fetuses even though each fetus is equally a rodef of the others. Doctors are allowed to decide which fetuses to save.
In the last half of the twentieth century women’s voices still remain absent in the halakhic discussion on abortion. Those rabbis who preach the most stringent positions do not carry the pregnancies with all the physical stress and danger, bear unwanted or defective children, or bear the major burden of caring for them. Their stringencies, couched in moralistic terms, are played out on women’s bodies.
A woman’s life takes priority over the life of the fetus and some poskim are willing to extrapolate to other physical and psychological conditions which permit abortion. Nearly all Jewish positions on abortion speak against convenience as a factor in the decision. Halakhic positions on contraception and abortion have been deeply influenced by the loss of six million Jews in the Holocaust. From a halakhic point of view, it is preferable that a woman (who is not obligated in procreation) be the person who performs the abortion and that the abortion be performed as early as possible. The physical and psychological state of the pregnant woman, particularly in the case of fetal abnormalities, the welfare and stability of the existing family and the fact that a woman is not obligated in procreation should be the defining factors in abortion decisions.
Schiff. Daniel. Abortion
in Judaism. Cambridge and New York: 2002.
This is the “must-read” book on the topic of abortion. Schiff’s intention is to trace the legal history of abortion in Judaism. As a result, he is not agenda driven in terms of a given position on the topic. Rather, Schiff presents a fairly unbiased examination of the sources. Each source is examined in its historical context, which sheds light on the “external” versus “internal” positions and their possible impact on halakhic development.
Schiff begins with the biblical texts in Exodus 21, explaining them in the context of the Ancient Near East, and bringing modern academic approaches and medieval Jewish commentaries. He spends a great deal of effort on the word ason and the enigmatic phrase nefesh tahat nefesh. He next considers the Hellenistic influence in the Septuagint and an analysis of the Alexandrine, Philo, and compares these interpretations to that of the normative Jewish approaches in the Land of Israel. Schiff brings the tannaitic legal sources: Mishnah Niddah 3:7 (which gives no status to a conceptus for the first forty days), BT Niddah 31a (a baraita which relates to the supposed positive and negative repercussions of intercourse on the fetus and the mother during each trimester of pregnancy, i.e. it treats the conceptus as if it is valid life already in the first trimester), Mishnah Oholot 7:6 (which allows fetal dismemberment for the sake of the mother whose life is threatened during childbirth prior to the birth of the head or the majority of the body. After this point in the birthing process the fetus obtains the status of nefesh which makes it the same status as the birthing mother); Mishnah Arakhin 1:4 concerning the prohibition against delaying the execution of a pregnant woman liable to capital punishment unless she has begun to give birth (when the fetus may have taken on a slightly different aspect of vitality); Mishnah Niddah 1:3 (which acknowledges fetal existence only after three months of pregnancy); BT Sanhedrin 57b (in which R. Ishmael midrashically demonstrates that capital punishment is appropriate for Gentiles who abort); Genesis Rabbah 34:10 (BT Sanhedrin 91b) on Rabbi Judah the Patriarch and ensoulment which did not achieve legal import in subsequent discourse. The sources themselves are slightly contradictory, some giving a level of vitality to the fetus while others reject the significance of its vitality and allow extraction of the fetus for the sake of the mother. The normative position, that the fetus can be dismembered during the birthing process, carried the most weight legally. Schiff claims that the discussion in BT Arakhin 7a–b which permits transgression of the Sabbath for the sake of a fetus who does not have the legal presumption of life but whose mother died while giving birth is limited in the Talmud to a full-term or near full-term birth. He mentions R. Yohanan’s position (BT Temurah 25a), that the fetus is not a limb of its mother, to demonstrate that the amoraim have “taken substantive philosophical strides while not making any correlating legal adjustments” (44). This statement, however, weakens the control of women over their bodies by giving the fetus independent status. This section of the book I believe is the most problematic. While Schiff considers the possibility that the discussion in Arakhin is theoretical, he does not state that it is inconceivable to consider cutting up the mother’s body in order to remove a fetus prior to potential viability (seven months). The discussions of the fetus as a rodef are also not entirely legally consistent. Schiff’s statement (54) “that little unauthorized abortion took place among Jews during rabbinic times … and effective contraception was unavailable,” is entirely speculative and probably without basis in reality. Riddle suggested that there were very effective modes of contraception and chemical means of abortion available in antiquity. It is very likely that the knowledge of contraception and abortion was entirely in the hands of women and the written record made by men did not systematically record this until the Middle Ages through Greek and Arabic medical books. Even papyri from Egypt mentioned abortifacients and contraceptives. Moreover, the fact that the rabbis did not obligate women in procreation simply reinforced women’s control over their own bodies.
Schiff then mentions Rashi’s position that the fetus is a non-nefesh, from which a leniency in the matter of abortion can be derived. He also brings Maimonides’s position that the fetus can be considered a rodef toward whom no mercy should be shown if the mother’s life is threatened during the birth. Schiff presents the strict interpretation of rodef, i.e. once the head emerges, the fetus no longer is pursuing the mother and for that reason cannot be dismembered. This is a very limited interpretation of Maimonides. As a physician, Maimonides would know that once the head emerges, the greatest but not the only danger in the birth process is over and this is reflected in this law, which was stated in Hilkhot Rozeah (1:9) but does not necessarily reflect Maimonides’s position in pre-labor situations. Maimonides can be interpreted as obligating dismembering the fetus to save the mother’s life at birth and allowing abortion at other times, essentially holding a position similar to Rashi’s that the fetus is not a nefesh. This understanding of Maimonides is found in many late authorities. Moreover, Schiff discusses the conflicting positions in Tosafot Niddah 44a, which states that it is permitted to kill the fetus, and Tosafot Sanhedrin 59a and Hullin 33a which state that this is not permissible. He follows up these disputes in later authorities, demonstrating lenient positions as well as more stringent positions. He examines the few responsa which relate to abortion from the Middle Ages to the early twentieth century which demonstrate a marked tendency towards leniency.
Schiff’s greatest contribution is his deconstruction of the modern responsa, thereby uncovering rabbinic agendas. Moses Feinstein, writing in 1977 at the height of the abortion controversy, permits an abortion only if the mother’s life is definitely at stake. He forbids prenatal testing because abortion, a possible mode of action as a result of defective fetuses, is forbidden. Schiff points out external influences on rabbinic agendas, e.g. Feinstein’s worry about “great licentiousness.” He is sensitive to language issues in the abortion debate and their significance, e.g. “appurtenance to murder” (Unterman), “crime” (Jacobovits), “moral murder” (Rosner), etc. and can demonstrate that these are new terms without basis in the traditional sources. The rabbinic agendas concerning contraception are obviously strongly influenced by the Holocaust and a low Jewish birth rate, hence some of that concern is reflected in approaches to abortion. Birth control, convenience and, for most Jewish authors, even economic factors cannot be justification as causes for abortion.
After clearly demonstrating that issues external to the traditional sources have great impact on the way these are brought (or conveniently not brought or given lesser weight) by certain poskim, Schiff introduces women’s voices into the abortion debate. He also presents the situation in Israel where civil law is influenced by halakhah but not in compliance with restrictive interpretations of it. He presents R. Emanuel Rackman’s contention that logic, a sense of justice and the needs of society are critical parts of all legal systems, including halakhah. The articles reviewed below tend to present what R. Rackman calls a mythical view of the application of practical halakhah, i.e. that it is immutable, totally objective, uninfluenced by current conditions and circumstances and that it never transcends its own rules. Schiff should be congratulated for bringing an unbiased presentation of the traditional sources, medieval and later authorities, for deconstructing the positions of modern poskim, and for presenting the crucial perspectives of women as well as the non- Orthodox Jewish views.
Bleich, J. David. “Abortion in Halachic Literature.” In
Jewish Bioethics, edited by Fred Rosner and J. David Bleich, 155–196.
Hoboken, NJ: 2000. Reprinted from Tradition
This is a very thorough article representing the present day strict consensus of Orthodox thought on abortion, which adopts only the most stringent positions. It begins with consideration of whether the basis of the prohibition is biblical or rabbinic, making a distinction between abortion by physical dismemberment or drugs. It discusses whether feticide equals homicide, or an appurtenance of homicide, or something different. Bleich goes on to analyze the halakhic status of the embryo during the first forty days when it is considered to be mere water. He includes the opinions of Rabbis Unterman and Zweig which prohibit abortion even in the first forty days unless the mother’s life is in danger. These rabbis consider themselves bound by an obligation to preserve the fetus. Bleich mentions opinions where the status of the embryo/fetus is questionable for the first three months, bringing R. Waldenberg’s permission to abort a defective fetus or suspected defective fetus during that time. He discusses whether abortion constitutes wounding the mother and hence a possible reason to prohibit it. His discussion does not take account of the “morning after” pill or the drug RU-486, the so-called abortion pill, which was developed later and may eliminate some halakhic concerns.
As abortion is forbidden to the Noahides by tannaitic midrash, the idea that what is forbidden for Gentiles should certainly be forbidden to Jews dominates the strict consensus of the Orthodox position. Bleich analyzes the concept of rodef using only a stringent interpretation of Maimonides, i.e. only when the mother’s life is at stake and prior to the emergence of the fetus’s head can the fetus be dismembered during or before birth. He includes discussion of some positions in which a pre-existing medical condition of the woman is exacerbated to a dangerous situation by a pregnancy. Nevertheless, abortion is prohibited by those authorities whose position he discusses, while neglecting to bring the lenient positions. He discusses the situation where a pregnancy constitutes only a possible danger to a woman’s life. Bleich refers to poskim who make an analogy between miscarriage and abortion without taking into account the context of the modern abortion debate which is not at all addressed in classical texts. It should be noted that a woman’s desire to avoid the pain of a difficult pregnancy is considered a valid reason to allow certain types of contraception as women are not obligated in procreation.
Bleich discusses the halakhic status of the fetus as a “limb of its mother” and the possible change in that status as the birth process begins, noting that only in the case where the fetus is considered a rodef could abortion be allowed. He does bring a number of lenient opinions when the mother’s health or organs are at stake: if the pregnancy would cause deafness, R. Ouziel allows an abortion before the birth process begins; R. Emden permits an abortion for a serious medical reason prior to the birth process; and R. Joseph Trani and R. Waldenberg sanction abortion when it is in the interest of the mother’s health or even to avoid severe physical or mental pain. He also brings several poskim who forbid abortion unless there is a definite threat to the mother’s life. Psychiatric grounds for abortion are not thoroughly discussed. The idea that personhood attains only at the full-term has allowed some poskim to be lenient. Abortion of a mamzer has been allowed by a number of rabbis (including Emden and Ouziel) but forbidden by others. Abortion of an abnormal fetus is absolutely forbidden by Rabbis Unterman and Zweig, including risk of severe fetal deformity due to maternal exposure to German measles and thalidomide. Bleich’s article was written well before the German measles epidemic in Israel in the late 1970s, when exposure was a sufficient cause for abortion for almost the entire rabbinic community. He refers to R. Waldenberg’s permission for abortion due to grave necessity up to the seventh month, e.g. in the case of a Tay-Sachs fetus.
The article is thorough, with many notes which are chiefly references to the responsa literature. The main weaknesses of the article lie in a tendency on Bleich’s part to see the stringent positions as mainstream, thereby placing lenient positions as marginal; the author’s failure to relate to psychiatric disorders; and the article’s outdatedness.
Jacobovits, Immanuel. “Jewish Views and Abortion.” In Jewish
Bioethics, edited by Fred Rosner and J. David Bleich, 137–154. Hoboken,
NJ: 1979, 2000. Reprinted from Abortion
and the Law, edited by D. T. Smith, Cleveland: 1965.
R. Jacobovits presents the stringent Orthodox position and phrases deviation from it in very negative terms. The only indication considered for abortion according to him is a hazard to the mother’s life. Destruction of the fetus is a grave offense but not murder. It should be noted that the traditional sources make no reference to abortion as a “grave offense.” Several of Jacobovits’s positions are nothing more than arguments from silence. He makes no distinction between abortion as it is considered in the modern abortion debate and a “difficult birth,” which is the reference in traditional sources. He does mention the permission by R. Emden for aborting a mamzer and the prohibition of such by other poskim who argue that abortion in this case would open the gates of immorality and debauchery because it would create a situation in which adultery would not have tangible repercussions. It is doubtful whether the establishment of this principle for punitive reasons without reflection on the consequences to the mother’s health, including mental health, since she carries the greatest burden for pregnancy, childbirth and early child care, is conscionable. Jacobovits insists upon previous experiences of mental imbalance before a psychiatric criterion allowing an abortion can be applied. He mentions R. Unterman’s absolute prohibition of abortion unless the mother’s life is at stake and his view that abortion is an appurtenance to murder.
Jacobovits views the prohibition of abortion as a deterrent to immorality without reflecting upon the immorality of men tolerated in traditional marriage (fornication without charges of adultery). His claim that “the sanctity of life is inviolable” is simply not true in Jewish law, e.g. a premature baby does not have full human status. Jacobovits ends his article with a quotation from Philo on Exodus reflecting the Hellenistic Bible translation, where destruction of a formed fetus constitutes murder. This became the basis of the Catholic position on abortion, which seems to be his preferred model.
Washofsky, Mark. “Abortion and the Halakhic Conversation: A Liberal Perspective.”
Fetus and Fertility in Jewish Law: Essays and Responsa, edited by Walter
Jacob and Moshe Zemer. Pittsburgh: 1995. Studies
in Progressive Halakhah, Volume 5.
This is perhaps the best theoretical article on the halakhic reasoning concerning abortion. It explains the concept of halakhic consensus in the Orthodox world today. Washofsky defines consensus as the view held by a preponderance of Orthodox authorities as the single correct halakhic position despite the other plausible interpretations that exist. He demonstrates how this consensus is represented in the methods of three modern poskim. The method of consensus presents dissenting views as less correct and less authoritative, if it bothers to present them at all. Consensus attempts to reduce a multitude of halakhic opinions to a single truth. This “truth” is generally agenda-driven and an attempt to delegitimate all other positions. It should be noted that as the abortion debate became more public, Orthodox Jewish positions became more solidly entrenched in the pro-life camp, possibly because of the vociferous objection to abortion on the part of the Catholic Church. This is based on “whatever is prohibited to Gentiles should, of course, be prohibited to Jews.” Schiff (see above) critiques Washofsky’s presentation of a single consensus, claiming that there is both a lenient and a stringent Orthodox consensus.
Washofsky argues that the so-called “correctness” of the consensus position has been established by mechanical and formalistic means imposed from without. This external influence creates an intellectually interesting but halakhically unpersuasive conceptualization. He believes that this is driven by the desire for the “objective” truths, something which contradicts the entire significance of Talmudic argumentation. Washofsky sees halakhah as a rhetorical practice rather than a science, a dialogue among the potentially correct interpretations of law.
Washofsky analyzes the position of R. Hayyim Soloveichik (1853–1918), a major proponent of the Brisker analytical method which has a high degree of conceptual abstraction. He explains how Soloveichik used the “two law” method which explains a halakhic concept as consisting of two basic components, each of which is held by one author or source. Disagreement among authorities is reduced by this method to a difference of emphasis. For Soloveichik, the rodef concept includes the intention to save the victim and the possibility of stopping the pursuer even at the cost of his life. The concept of saving a life (pikuah nefesh), based on the equal status of all people, can set aside nearly all commandments. Soloveichik’s solution was to create a semi-rodef (i.e. the idea of pursuit by Heaven removes the obligation to sacrifice the rodef to save the victim) and a semi-nefesh (if the fetus is a rodef then it is a complete nefesh and only mortal danger to the mother justifies sacrificing the fetus). This reduces Maimonides’s position to one in which abortion is justified only if the mother’s life is at stake, rather than the more lenient interpretation that in that case abortion is obligated while in other cases abortion is permitted.
Washofsky analyzes the position of R. Moshe Feinstein (1895–1986) on abortion. Feinstein claimed that abortion was prohibited to Jews because it was prohibited to the Gentiles. Feinstein made the claim that the availability of abortion creates the need for a fence around the Torah. He further argued that no one could disagree with Maimonides (in the strict interpretation of his position) if his contemporaries did not disagree with him. He claimed that Tosafot Niddah 44a, which stated that it was permissible to kill the fetus, was a scribal error and that R. Trani’s lenient position was a forgery by his student. This led to the position that there is only one “correct” answer to a halakhic question. Feinstein dismissed the legal plurality inherent in the texts which is an arbitrary nullification of legitimate alternatives. He was attacked on his position by several of his contemporaries, who maintained that Feinstein was incorrect to ascribe to different opinions scribal errors and forgeries. It is also not true that Maimonides’s contemporaries were silent and did not disagree with him on this issue.
The third position which Washofsky analyzes is that of Rasson Arusi, who classifies rabbinic texts in order of their halakhic importance. Arusi claims that the lenient opinion found in Arakhin 7a is not directly connected to the topic, while the strict interpretation of Mishnah Oholot is directly relevant. He ranks the posek (Maimonides in the strict interpretation of his position) above the commentator (Rashi for his leniency in reference to nefesh), ignoring the fact that initially all poskim must also be commentators on the text. He also claims that halakhic compendium (e.g. Maimonides’s Code) is more authoritative than responsa, neglecting the position that the concrete situations addressed in responsa may yield a deeper understanding of the law.
Orthodox consensus functions in the abortion question by the invention of new halakhic concepts, elimination of contradictory evidence or the institution of (contestable) systems of decision making rules. Controversial questions are thereby reduced to one “correct” answer. Washofsky suggests that the correct model for halakhic decision-making is the model of conversation (dialogue). In this model the positions held by various poskim and commentators are all considered legitimate and acceptable interpretations of law. It is the job of the posek to persuade the halakhic community of his position. This would retain the plurality of halakhic difference which over the generations kept Judaism vital.
Rosner, Fred. Biomedical
Ethics and Jewish Law. Hoboken, NJ: 2001. Despite the publisher’s statement
that this book is a new work with updated chapters from Modern
Medicine and Jewish Ethics (second edition, 1991), the chapters on
contraception, artificial insemination, in vitro fertilization, abortion and
multifetal pregnancy reduction are identical to the 1991 edition (“Abortion,”
Chapter 15, 175–196).
Rosner gives a brief overview of the impact thalidomide and German measles had on state abortion policy. He mentions the Catholic position which is more concerned with the status of the fetus because the mother has already been baptized, the Lutheran position which is close to the Catholic position but allows fetal sacrifice if the mother’s life is endangered, and the Unitarian position which leaves abortion up to the doctor and patient. He then sets the basis for the Jewish position on abortion from Exodus 21:22–23 where ason refers to the mother’s death and the position that the fetus is not equal to a complete person (nefesh). He refers to Maimonides’s position on the fetus as rodef (in the strict sense that only if the mother’s life is at stake can the fetus be dismembered rather than the obligation to do so in that situation and the possibility to do so in all other situations even where her life is not threatened). Rosner devotes a section to Jewish moral considerations on abortion which emphasizes the most stringent positions, e.g. the fact that this text does not include intentional or induced abortion which should fall under the category of “exempt [from murder culpability] but forbidden.” According to this logic, saving the mother’s life in Oholot 7:6 would constitute “moral murder” of the fetus. Rosner claims that each fetus, even if handicapped, could become a person, perhaps even a genius. Rosner denigrates the concept of “the fetus is a limb of its mother” because “the fetus has far greater potential than any limb of its mother.” He makes a philosophical/moral argument against abortion: God willed the pregnancy and the woman seeking an abortion is exhibiting lack of faith. According to him the horrible destruction of the Holocaust should prohibit abortion. The father’s voice, the siblings’ voice and the fetus’s voice should have the power to limit the mother’s voice. Rosner also considers that “abortion on demand” is for social reasons such as poverty, housing, an unintentional pregnancy, convenience and the happiness of the adults, and therefore unjustified. He compares it to murder and suggest that a moral physician might refuse to perform an abortion. Rosner makes a long list of why abortion on demand cannot be a Jewish practice: a prohibition against the destruction of seed, the fetus already considered to be a partial person forty days after conception, the prohibition of a woman injuring herself (R. Trani and Zweig), appurtenance to murder (Unterman), the applicability of Genesis 9:6 understood as “the blood of a person within a person” to prohibit abortion (Unterman) and the interpretation of Oholot 7:6 that only when the mother’s life is in danger is an abortion permitted (R. Jacobovits and Zweig). He progresses to a total stringency prohibiting abortion except when the mother’s life is at stake. He does not relate to the fact that Oholot is outside the normal abortion debate and does not relate to the health and safety of the mother in the progression to total stringency. Birth of defective children affords them legal protection; thus infanticide is prohibited. He notes R. Waldenberg’s leniency in reference to Tay-Sachs pregnancies and R. Feinstein’s demand for individualized decisions even in the case of Tay-Sachs. He brings the position of R. Yitzhaq Silberstein who held that if both parents are Tay-Sachs carriers they should divorce, but if that is too hard they should reproduce and hope for the best. They need not continue to procreate if they have fulfilled the obligation by having had two viable children. He does state that in the first forty days after conception a minority of poskim allow abortion for health concerns or socioeconomic reasons (e.g. R. Schneur Zalman of Lublin) or for rape or incest (R. Emden). Rosner creates a strong sense of prohibition by emphasizing the positions of R. Jacobovits, Zweig and Unterman, who denounce the lenient rulings. This tendency to denounce lenient rulings is fairly universal in articles available in English.
Steinberg, Avraham (tr. Fred Rosner). “Abortion and Miscarriage,” Volume 1.
of Jewish Medical Ethics. Jerusalem and New York: 2003.
Steinberg, an (ultra-) Orthodox physician, begins his article with a brief history of abortion and a medical classification of spontaneous and induced abortion, including methods employed. He lists the possible negative repercussions of abortion, particularly emphasizing the possibility of infertility and psychological disturbances, without mentioning that the risks in abortion performed in modern hospitals/clinics by experts are lower than the risks in pregnancy and birth. His selection of references is biased. Relying upon A. H. Weiss, he claims that abortions were extremely rare among Jews. Weiss’s argument from silence does not address the fact that historically knowledge of contraception and abortion was in women’s hands and did not necessarily enter the written sources recorded by men. Moreover, no statistical evidence can be gleaned from traditional sources. Steinberg discusses at length spontaneous abortions of severely malformed embryos and fetuses and the halakhic status of the mother and fetus in those situations.
Steinberg attempts to demonstrate that the overwhelming majority of poskim consider abortion to be prohibited either biblically or rabbinically. He lists the following as reasons for the prohibition of abortion: it involves the destruction of the Divine creation (Zohar), it injures the mother, it is unwarranted destruction of seed, it endangers the mother, it prevents the fetus from observing commandments in the future, it is considered stealing the life of the fetus, it is murder, it frustrates the mitzvah of procreation, or it is an unspecified general prohibition. He identifies the authors of each reason.
Steinberg summarizes the classifications for maternal indications for abortion: the danger is nearly certain, there is a possibility of danger, there is remote danger, disagreement among physicians about the level of danger, danger directly related to the progression of the pregnancy and childbirth, conflicting opinions about malignancies which develop during pregnancy and whose treatment will harm the fetus, abortion prior to the danger resulting from a more advanced pregnancy or birth, intentional pregnancy despite danger, and refusal to abort. In his numerous notes, he refers to those who hold the varying opinions. He cites the reasons upon which some authorities rely to permit abortion for those who consider it biblically prohibited: the fetus does not yet have the status of nefesh, the status of the mother is greater than the status of the fetus, or the fetus is acting as a rodef. For those who consider abortion rabbinically prohibited, there are additional reasons to permit abortion: “wounding” can be done for the purpose of healing or saving the woman’s life, mental illness, threat of suicide, aggravation of pre-existing condition, danger to a limb or organ, pregnancy with a mamzer, pregnancy due to rape, pregnancy during nursing another child, great need, minor need and great suffering. Again, he attributes each opinion in his notes.
According to Steinberg’s presentation, those authorities who consider abortion to be biblically prohibited do so because the fetus is a person; because the fetus may not be aborted even if it is known that it will live only for a short time or that it will suffer constant illness; because it has no mental capacity; and because it will require more attention than the mother can provide. Some prohibit abortion in these cases even if it is known that the mother will become ill as a result. For those who consider abortion prohibited rabbinically, a number of poskim have permitted abortion when it is absolutely certain that the fetus is suffering from certain diseases or defects and the defects and illnesses are fatal. Included are Tay-Sachs, anencephaly, repercussions of maternal exposure to German measles early in the pregnancy, exposure to radiation and teratogenic medications. He includes multifetal pregnancy reduction in this list.
Steinberg relates to physicians who perform abortion and their assistants. He summarizes that some authorities permit abortion only when two physicians agree on the necessity to abort and only expert physicians may perform abortions because of the danger to the woman. Some authorities suggest that it is forbidden to perform or assist at an abortion, even if it means losing one’s livelihood. Those who perform diagnostic tests which may lead to a decision to abort (ultrasound) may perform those tests. Steinberg also relates to the stages of pregnancy and mentions the opinion that some authorities prefer medications (e.g. RU-486 or prostaglandins) as opposed to surgical abortion. Even when abortion is permitted, the husband’s consent is necessary, but he may not forcibly divorce his wife for not obtaining his consent. Some rabbis obligate the physician to pay the value of the fetus to the husband if the abortion was not justified and his consent was not obtained. Steinberg discusses the opinions concerning damages and the status of people who cause women to abort.
Steinberg presents an overview of the abortion debate which sets in opposition the rights of a woman over her own body and fetal rights. He concludes that abortion is not a medical but rather an ethical and religious issue. In this section he defines late abortion as after twenty-two weeks whereas at the beginning of his article he surprisingly defines late abortion as after twelve weeks. He goes on to present a summary of Israeli law concerning abortion. He is extremely critical of the wording and application of the law because it is too liberal. The hospital committees interpret liberally what might constitute a danger to the life of the woman or cause her physical or mental harm. He objects to the age regulations because it is only statistical probability that fetal defects will occur after the age of forty and there is no halakhic reason to allow abortion for a young woman below the age of marriage if there is no danger to the woman. His personal position, which has influenced the manner in which he has summarized the material and brought references, can be seen from the following quotations: “Condition 4, which refers to concern for physical or mental danger to the woman, is often used as a pretext and cover-up for the ‘social condition.’ There are very few physical afflictions nowadays which can justify abortion. In general, psychiatric illness in the woman, often cited as a reason for abortion, is interpreted very liberally and unreliably and usually without psychiatric consultation. Even when there is such a judgment, it is highly speculative.” He justifies this by pointing out that in Canada in 1981 (prior to the striking down of Canadian anti-abortion laws as contrary to the Charter of Rights), eighty-five percent of the abortions were justified on mental health grounds.
The chief value of this article is that Steinberg has 258 notes, most of which refer to responsa literature. This means that he brings the entire spectrum of halakhic opinion on the topic. His own personal bias determines the manner in which he brings the material and the material he neglects. It is quite clear that he subscribes personally to the stringent Orthodox consensus.