This post is a continuation of my second response as part of this thread on reproductive rights at Alas, A Blog where I raised the differences between the Jewish and Christian approaches to the status of the fetus — because I think there is no way to avoid the fact that the entire abortion debate in this country is being carried out, explicitly and implicitly, in Christian, or at least Christianized terms — and also between the Jewish approach and the approach which made abortion legal in the United States, which is grounded in a woman’s right to privacy. I’m not so much interested here in arguing that either the Jewish or right-to-privacy approach is better than the other in supporting a woman’s right to choose than I am simply in laying out a different way of framing the issue of abortion and seeing what people make of it in the context of the struggle to maintain abortion rights that is going on in this country.
In presenting the Jewish position on abortion, I will be summarizing from Rachel Biale’s book, Women & Jewish Law (Schocken Books 1984), and David M. Feldman’s Marital Relations, Birth Control and Abortion in Jewish Law (Schocken Books 1968). Each of these two authors discusses at great length the justifications within Jewish law for therapeutic abortions, abortions that are preformed in order to save the mother’s life, at the core of which is the assumption that there is, as Biale writes, “a clear distinction…between the woman and her child: the woman is a living person…and anyone who…kills her [has committed a capital crime].… The fetus is not a person in this sense” because the fetus has not yet become an individual; it cannot live independently outside the womb and so is not understood to have the same status in legal or moral/ethical terms as the mother (220). After this discussion, the authors turn their attention to the Jewish position on non-therapeutic abortions, citing a passage in Tractate Arakhin in which the rabbis ask – and here I am going to paraphrase rather than quote, but immediately relevant pages in the two texts are: Biale, 223 – 225; Feldman, 289 – 294 – whether a woman who is sentenced to death and who is discovered to be pregnant after her sentence has been pronounced can be executed before she gives birth.
The point of the question is to consider not the ethics of the death penalty, but rather the status of the fetus. If the sentence is carried out before the woman gives birth, executing her means killing the fetus as well, and so the question arises, since there is no medical reason to consider the fetus a danger to the mother’s life, whether the fetus’ life should be given sufficient precedence so that it is not killed for its mother’s crimes. The answer the rabbis come to is that one does not wait for the woman to give birth to execute her because “a delay between sentencing and execution is a form of torture” called in Jewish law innui ha-din, and “innui ha-din, delay in carrying out the sentence, is prohibited in Jewish law because it adds unwarranted anguish to the punishment” (Biale, 225), and one can only imagine how much more anguish would be added in this case, forcing a woman to carry a pregnancy to term knowing all the while that the birth of her child will also signal the end of her life. According to Biale, “It is possible to deduce from [this passage in] Arakhin a general principle that a fetus may be aborted to avoid mental anguish (any condition analogous to innui ha-din) or disgrace to the mother” (ibid.).
Biale seems to hint that, depending on the interpretive strategies one uses and the precedents one chooses to cite, it might be possible to arrive at a position within Jewish law that would allow abortion-on-demand and that would give a woman control over her own body in the way we think about reproductive rights today, though that position, as I read Biale and Feldman, is not surprisingly not in the mainstream of Jewish thought. What really interests me about this reasoning, however, is that it posits the permissibility of abortion not from the point of view of a woman’s right-to-privacy, but rather from the point of view of protecting and preserving the quality of a woman’s life, even if that life is measured only in the relatively short time between the handing down of a death sentence and the execution it mandates. More to the point, this reasoning obligates the state to respect the quality of the woman’s life even when the state has an interest in bringing that life to an end. This position is only possible, however, because Jewish law starts from the position that the fetus is not and cannot be construed as a person in the same way that the mother can.
Unfortunately, I will have to pick this up again in another post. I am off to play with my son, whom I cannot put off any longer.