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
<values>, 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 <responsa> 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 <per se> 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 <post facto> "correction" of
rash acts, compel people to think twice <before> 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 <not>
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" <par
excellence>, 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 <deliberate> abortion. Commenting
on the <Septuagint> 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
<in utero> 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
<Jewish Medical Ethics>), he published the original version of
this article in the book <Abortion and the Law> (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
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