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The Curious Consensus of Jews on Abortion
That different Jews have disparate views is not news. What is news is when most Jews agree on a particular idea or approach. And so it is with the curious consensus of Jews on abortion.
In mid-2012, the Public Religion Research Institute (“PRRI”) published its findings from a 2012 survey of Jewish values (the “Jewish Values Survey”). The survey sought to measure the opinions of American Jews on a wide variety of political and economic issues, both domestic and foreign, as well as with respect to certain religious beliefs and practices. Some of those opinions were analyzed internally by Jewish denomination and externally by comparison to those of other faith or ethnic groups.
While Jews varied considerably in their views of a wide range of topics, on one – abortion – they were not only reasonably cohesive in their attitude, but strikingly different from other groups. Given the emphasis in the Jewish tradition on valuing life, on equating the preservation of one life with the preservation of a world and, conversely, the destruction of one life as the destruction of the world (Mishnah Sanhedrin 4:5), this result, on its face, seems as anomalous as it is clear.
First, let’s look at the PRRI data. Essentially regardless of denominational affiliation or demographics, American Jews think abortion should be legal in all (49%) or almost all (44%) cases. That is, fully 93% of all American Jews support legalized abortion in some fashion. Even political leanings, while influential, are not determinative. Among Jewish Democrats support is 95%, but 77% of Jewish Republicans also favor legalized abortion in all or most cases, far exceeding the rate of other groups studied.
The comparable numbers for other faith groups is quite different not only in their overall support or opposition to legalized abortion, but in the internal differences within each group. Jews are the only group surveyed in which a plurality support abortion in all cases. While about half of all Jews support abortion in all cases, in no other faith group does such support exceed 25% of the population. Moreover, in comparison to the 93% total of Jews who support legalized abortion in all or most cases, the only other group surveyed that showed clear majority support for legalized abortion was white mainline Protestants (59%). The comparable numbers for black Protestants and Catholics are 50% and 48%. Just one-third of white evangelicals support abortion in all or most situations.
Moreover, while the survey found that just 6% of Jews oppose legalized abortion in most cases and 1% did in all cases, the other groups surveyed were much more diverse in their views. For instance, while 19% of Catholics thought abortion should be illegal in all cases, 31% said only in most cases. Similarly, 21% of white evangelicals opposed legal abortion in all cases, but 44% only opposed it in most cases.
One problem with the survey, and indeed with the public debate about abortion generally, is the lack of precision with definitions. When asking about “most cases,” the 2012 Jewish Values Survey did not specify what “most cases” meant. This may not matter to the half of all Jews who support legalized abortion in all cases or to the roughly one of five Catholics, white evangelicals and black Protestants who oppose legalized abortion in all cases, but for the rest of America it appears to make a difference. In another PRRI survey conducted in 2011, researchers found that permitting abortion was supported strongly (79%) across religious lines if the pregnancy was a result of rape or the mother’s physical health (86%) or mental health (74%) was seriously threatened. These results suggest, and the 2011 survey confirms, that many Americans, over two in five in fact, are both pro-life and pro-choice as those terms are conventionally used. That is, while they may think that abortion is morally wrong, or at least have qualms about it, they are inclined to favor, or at least agree with, permitting qualified health professionals to provide abortion services in discrete categories of cases.
As indicated, though, the overall position of American Jews appears more uniform and less nuanced than that of others. To be clear, there are Jews and Jewish organizations, e.g., Jewish Pro-Life Foundation, that oppose legalized abortion, but their numbers are small and their influence on the general Jewish population seems limited.
So why are Jews so much different from others on this issue? Is there something in the Jewish tradition which leads inexorably to the overwhelming consensus most Jews have reached?
The Torah itself, indeed the entire Tanakh (Hebrew Bible), is silent on the topic of abortion. A passage in the Torah, however, does reflect a biblical view of a fetus. The passage concerns an injury to a pregnant woman which causes a miscarriage of her fetus. The Torah states that such conduct warrants financial compensation but nothing greater, specifically not the same penalty that would be imposed for murder. (See Ex. 21:22-23.) In other words, this passage considers the fetus as not fully a nefesh, a person, and more akin to personal property. It treats the incident, therefore, not as a criminal matter (for involuntary manslaughter), but more like a tort. This view was similar to other laws in the ancient Near East, such as the Code of Hammurabi (Nos. 209-10).
When the ancient sages talked about abortion, they did so in the context of the knowledge of their day and with at least one eye on the Bible. Consequently, as a matter of principle, abortion was generally prohibited because, for example, it destroyed something created in God’s image (see Gen. 1:26-27; 9:6), and that destruction was also contrary to the first commandment, to populate the world (see Gen. 1:28).
At the same time, the sages’ understanding of fetal development was quite limited. Within the first forty days of pregnancy, they thought the mother to be carrying “mere fluid.” (See BT Yevamot 69b.) In later stages of pregnancy, they viewed the fetus as a part of the mother (“ubar yerach imo”), like a limb or appendage of the mother. (See, e.g., BT Gittin 23b.) In these opinions, they were maintaining the notion implicit in Exodus that an unborn fetus was not quite, not fully a person.
Applying these not entirely consistent viewpoints, at least from Mishnaic times, abortion was permitted, even required, to save the life of the mother. The mother’s life was given more value than that of the unborn fetus, so much so that in the event of a danger to the mother’s life, an abortion could be performed until the head of the baby emerged. Once the fetus’s head emerged, however, the baby was considered alive, and its life, no less valuable than that of its mother, was protected. (See Mishnah Ohalot 7:6, quoted in RA hyperlink below.)
The great commentator Rashi (1040-1105 CE) accepted this principle, saying of the fetus, “lav nefesh hu,” s/he is not a person. The philosopher and physician Maimonides (1135-1204 CE), took a different view, though. When considering a threat to the mother’s life from a fetus, Rambam analogized the fetus to a rodef, or pursuer, for whom one was not to have pity. Abortion was justified, even though the fetus was of high value, because the fetus was characterized an active endangerment to the mother. (See Maimonides, Mishneh Torah, Hilchot Rotzeach u’Shemirat Nefesh 1:9; see also, BT Sanh. 72b.)
The position of contemporary American Jewish leaders is remarkably, although not entirely, uniform. In May, 2012, the Rabbinical Assembly (RA), an organization of Conservative rabbis, approved a resolution on “reproductive freedom.” In that resolution, the RA briefly traced both the relevant sources and recent attempts at the state and federal level to define life as beginning at conception and to legislate restrictions, including criminal penalties, on abortion. Reaffirming prior resolutions on the topic generally, the RA expressed a reverence for the “sanctity of life,” reaffirmed the traditional Jewish belief that personhood, and the rights attendant to it, begin at birth, not conception, and supported “the right of a woman to choose an abortion in cases where ‘continuation of a pregnancy might cause the mother severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective’ . . . .”
In his award winning book A Guide to Jewish Practice (2011), published by the Reconstructionist movement, rabbi and ethicist David Teutsch reaches similar conclusions. Teutsch recognizes that the interaction between physical and mental health is “complex,” and that the “impact of the abortion itself requires careful consideration.” (At 500.) According to Teutsch’s analysis, abortion is permissible when the pregnancy results from rape or incest, and is therefore “psychologically devastating,” or where the child, if born, would suffer a “very short” and “highly painful” existence due to a disease like Tay-Sachs. (Id.) At the same time, because a condition like Down Syndrome does not necessarily preclude living a “happy” or “meaningful” life, Teutsch concludes that such a diagnosis “by itself” would not justify an abortion, but allows that some authorities consider factors such as the effect of an additional child on its family’s economic or internal stability. (Id. at 500-01.)
Both the Conservative and Reconstructionist views echo a formal Responsa (opinion) authored by Rabbi Walter Jacob and issued a generation ago by the Central Conference of American Rabbis, the umbrella organization of the Reform rabbinate. That Responsa (No. 16) reviews the precedents in detail, and with references, noting the different and varied situations in which abortions have or have not been permitted. The Responsa concludes with a call for caution in matters of abortion, with less hesitancy about abortion in the first forty days of fetal life and more certainty regarding the reasons for an abortion subsequently. While the Responsa takes what it characterizes as the “liberal stance” of permitting abortion at any time where there is a serious danger to the life of the mother, it ends on a sobering note: “We do not encourage abortion, nor favor it for trivial reasons, or sanction it ‘on demand.’”
The issue of abortion in the Orthodox community is hotly debated. Indeed, one’s approach to the topic is seen by some almost as a litmus test of one’s commitment to Modern Orthodoxy or, alternatively, to a pre-modern, culturally conservative orthodoxy. The latter tends to hold that abortion is permissible only where the danger to the mother’s life is clear and direct and generally forbidden otherwise. Under this approach, abortion in the case of fetal abnormalities or deformities would not be allowed, nor indeed would amniocentesis be if the purpose of that procedure was to determine the presence of a birth defect. But there are exceptions. And one can even find rulings of respected Orthodox rabbis permitting abortions in cases of substantial emotional difficulty such as when the expectant mother becomes suicidal or when pregnancy is the result of adultery.
Needless to say, this limited review of the extensive Jewish literature on abortion is an insufficient basis for understanding the nuances of the challenges particular cases bring to Jewish values and principles. It is, however, hopefully helpful as part of an effort to understand both the relative uniqueness and the real limitations of the approach of the vast majority of American Jews to abortion.
While it is clear that for over two thousand years, Judaism has understood (1) personhood begins at birth and not conception and (2) that the life of a mother supersedes that of a fetus which threatens that mother, the notion reportedly expressed by roughly half of American Jews that abortion should be permissible in all cases is absolutely unwarranted by Jewish tradition and values, whether filtered through an Orthodox, Conservative, Reconstructionist or Reform lens. For instance, and without limitation, abortion for purposes of gender selection, convenience or purely economic reasons, especially at any time in gestation, is not defensible Jewishly.
To be sure, the 2012 Jewish Values Survey did not describe the reason(s) for the hypothetical abortion being considered. Consequently, it is not even clear that a majority of American Jews really do approve of abortion in “most” cases, though they surely do in many cases. To the extent the view of American Jews on abortion is premised on the argument that abortions are not properly the subject of criminal laws, that view finds stronger support in the Jewish tradition.
At the same time, we have knowledge and tools and insights that the ancient sages surely lacked. We know how a fertilized human egg develops from zygote to embryo to fetus and then, on birth, to a baby. We know, for instance, that by the fourth week of pregnancy, in an embryo barely one-twenty-fifth of an inch long, the embryo’s brain and spinal cord and its heart have begun to form, and arm and leg buds have appeared. Within two weeks, the heart starts to beat, blood to flow, and the embryo is the size of a lentil, maybe a quarter of an inch long. Brain activity commences. By the eighth week, all essential organs and external body structures, including eyes and eyelids, have begun to form. At the end of the eighth week, the embryo is about an inch long, but still weighs less than one-eighth of an ounce.
Consequently, the idea that the developing embryo is not a life form, that it is mere water for forty days is not only archaic, it is without scientific foundation. No, the embryo is not at all viable at that stage, but to deny that it is alive and might, without interference, emerge someday is at best disingenuous.
The fetal stage begins after week eight. In an uneventful pregnancy, the fetus will grow to about three inches and almost an ounce at week twelve and to four to five inches and almost three ounces at week sixteen. A translucent skin begins to form and the fetus can make sucking motions. If you want to read detailed descriptions or see images of fetal development, they are readily available.
We also know today, and really only recently, that while only one-fifth to one-third of babies born at 23 weeks of gestation survive, by week 24 fifty percent or more do. By week 26, over ninety percent of babies born prematurely can survive. Assuming viability, an abortion not related to saving a mother’s life cannot fairly be analogized to ridding one’s self of personal property or amputating one’s limb.
Similarly, given what we know today, though a fetus may well be the direct or indirect cause of a mother’s life-threatening condition, we cannot say that the fetus is a “pursuer.” There is no evidence, and really never was in Rambam’s day either, that the fetus possessed the capacity to form an intention to kill its mother or, indeed, do any harm. Rambam’s purpose in drawing that analogy is unclear. Let us admit that his position was inventive, perhaps compassionate and perhaps restrictive, but in any event ultimately deeply flawed.
Science can and should inform this discussion, way more than it does. Through sonograms in the first trimester, we can begin to evaluate a pregnancy. We can literally see the shape and specific features of a fetus. We can see its head, its limbs. We can monitor its heart beating. What we cannot do – or ought not do – is deny its essence.
Yet, to acknowledge that life is present is not to conclude the inquiry. Science cannot, for example, extinguish the rape or incest that may have caused the pregnancy. In short, medical science is informative, but not dispositive of the questions to be considered with respect to abortion.
In fact, modern medical science perhaps raises more questions than it answers. For instance, just as it can provide information that make the fetus appear to look more like a baby, today medical science can also tell us if that potential child is afflicted with a serious defect or disease. Today the human genome has been mapped, and many of us can get tested for genetic anomalies at relatively nominal cost. What do we do with the information we learn? If we find that a female fetus has a mutation on either gene BRCA 1 on chromosome 17 or on BRCA 2 on chromosome 13, and therefore has a statistically significantly greater likelihood of developing breast cancer than a mutation free female, what then? What about a finding of a mutation of the ApoE gene on chromosome 19, which suggests an increased chance of Alzheimer’s after age sixty? What of the literally dozens of diseases that affect groups of Jews disproportionately, from ataxia-telangiectasia to Werner syndrome? (See Entine, Abraham’s Children (Grand Central 2007) at 380-81.) We have only just begun to have a discussion about the need to have a discussion about these issues.
Dennis Prager sees the approach of American Jews to abortion as a matter of “moral disappointment,” but also as part of the substitution of “leftism” for Judaism. Prager’s frustration with American Jewry on abortion is understandable, but his argument is not persuasive. Whatever he may mean by “leftism,” it seems hard to sustain that assertion when the statistics indicate that 93% of the group is on one side of the issue. That is, if almost everyone is on the “left,” then there is no “left” anymore, or “right” for that matter. Invoking the left/right dichotomy is generally not very helpful or productive on political matters. On issues as knotty as abortion, it is next to useless.
And Prager’s suggestion that one can be pro-choice, i.e., anti-criminalization of abortion, and still recognize that “many abortions have no moral defense” is not on much firmer ground. He wants pro-choice Jews, “especially rabbis,” to say that they regard “most abortions” as “immoral.” But, to be polite, this approach lacks precision. How can “most abortions” be immoral if only “many abortions” have no moral defense? Exactly which cases is he referencing and what is the source of his data? What precisely does he mean by “moral” and “immoral” in this context? And why “especially” rabbis, as if (a) they have an impeccable track record on moral issues and (b) the rest of us are too obtuse to understand what’s at stake?
The difficult challenge here is not whether to be pro-choice or pro-life. Those are false and incomplete options, especially in Judaism which is neither really pro-choice nor pro-life as those terms are commonly used today. Moreover, while American Jews are not in sync with Jewish tradition, Jewish tradition is not in sync with modern medical science. Instead of knee jerk reactions, we need nuanced reflections. We all do, rabbis and laity, physicians and patients.
To a significant degree, the problem with any discussion of abortion is a matter of definition, indeed, two definitions. The heart of the argument between those who would permit and those who would deny abortions, aside from whatever perspective each may have about the role of government and personal privacy (no small aside), is the assertion, on the one hand, that life begins at conception and, on the other, that personhood begins at birth. To state the argument in this fashion is also to show why opposing sides find it difficult to communicate about it, even to discuss the mistranslation in the Septuagint of the Exodus text which gives rise to the division. Yet the truth is that neither side has a monopoly on cherishing life, nor can either claim exclusivity over the metaphor of the image of God. Rather, each side places emphasis on a different aspect of the same miracle.
The biblical view on the status of the fetus is, fortunately, not one of those rules literally or figuratively written in stone. We remain free to struggle over how and where to draw the lines we inevitably must draw when faced with situations about which we would rather not know much less contemplate and resolve. The true challenge, when considering matters of life and death, is to be cautious when others are certain, to be sensitive when others are strident, and to exercise humility when others exhibit hubris.