Alas, a Blog

I started to write a response to this comment by Limits of Language (LoL) on the A Record 102 Edition open thread, but my response got so long that I decided to make it a separate post. LoL wrote:

My suggestion is that the actual end state of a liberal and free society may not actually be the legalization of very late abortions [in the absence of medical necessity: do I have that right?] but instead that very late abortions are quite immoral and support for it is indicative of very dangerous rationalizations that also enable (other) human rights violations.

LoL is, of course, entitled to this belief, and I respect it, but it is, in the end, rooted in the notion that there comes a point when the life and personhood of the fetus takes precedence over the life and personhood of the person in whose body that fetus resides. I don’t know whether or not LoL is Christian, but, in my experience, this belief–even when held by non-religious, secular people–devolves from a Christian understanding of when life begins and what it means to be considered a fully human person. There are other traditions, also deeply rooted in a moral concern for human life and the nature of personhood, that see this issue very differently. The one I am most familiar with is the Jewish tradition.

What I am going to write below is based on my reading of two books that I would highly recommend to anyone who is interested: David M. Feldman’s Marital Relations, Birth Control and Abortion in Jewish Law (Schocken Books 1968) and Rachel Biale’s Women & Jewish Law (Schocken Books 1984). (There may be newer editions of both books; I have linked to the editions I have on my shelf.) I am going quote a little bit from Biale’s book, but for the most part I’ll be summarizing. So, for those who are interested, the relevant pages are: Biale, 223–225; Feldman, 289–294. These pages discussion what Jewish law has to say about non-therapeutic abortions, but that discussion is rooted in the “clear distinction [Jewish law makes] 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 (Biale, 220).

Regarding non-therapeutic abortion, the relevant text can be found in Tractate Arakhin in the Babylonian Talmud. There, the rabbis perform a thought experiment, and I want to stress that this is a thought experiment designed to allow for a discussion about the status of the fetus, not a discussion about death-penalty policy. Imagine, they say, a pregnant woman who has been sentenced to death. Should her sentence be postponed until her child is born? Or should it be carried out immediately, essentially murdering an innocent child for her crimes?

The rabbis’ answer–and I am skipping over a good deal of discussion here–is that the sentence should be carried out immediately, unless the birth process has started, because “at this point the fetus has become ‘a separate body’ (notice, not yet an independent life!) and is no longer part of its mother’s body” (Biale 224). Why, with that exception, shouldn’t the sentence be postponed? Because

a delay between sentencing and execution is a form of torture, innui ha-din [a concept in Jewish law which prohibits] delay in carrying out the sentence [so as not to add] unwarranted anguish to the punishment. A person sentenced to execution should not be tormented psychologically by having to await and anticipate his end. (Biale 225).

In other words, respect and compassion for the doomed woman’s humanity/personhood, i.e., she should not be subjected to torture, takes precedence over respect and compassion for the fetus (as long as it has not yet descended into the birth canal). She is understood to be an individuated person; the fetus, with that one exception, is not.

There are a couple of points worth further clarification: This ruling holds only when the woman’s pregnancy is discovered after her sentence has been pronounced. If she is known to be pregnant beforehand, the sentencing itself is postponed until after the birth. “In this case, waiting is not considered innui ha-din because the woman can hope for acquittal or a lesser punishment” (Biale 225). I also don’t know what the ruling would be if the condemned woman were to ask to be allowed to give birth before being put to death, but even if the ruling were that her desire should be granted, note that it would be granted out of respect for her choice, not the status of the fetus.

Biale goes on:

The practical importance of the ruling in Arakhin is not of course for cases of execution, but for cases where the mother is in great distress due to the pregnancy. It is possible to deduce from 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. (225)

Now, this is not to say that there is in Jewish law an argument for anything resembling what we understand when talk about a pro-choice position, much less abortion on demand right up to the moment of birth. In fact, in practice, women who follow Jewish law would need to obtain a rabbi’s permission to have an abortion. (Indeed, there is in one episode of Shtisel, which is on Netflix, a very interesting scene in which the rabbinic approach to abortion and the contemporary pro-choice approach come into conflict.) My point in writing this very long response to LoL’s comment is simply to demonstrate that there is an argument for legalizing very late term abortions—no less rooted in a moral, religious tradition than the Christian or Christological argument against the practice—that is not, as he suggests, “indicative of very dangerous rationalizations that also enable (other) human rights violations,” but is instead rooted in a deep sense of compassion and respect for the humanity of someone who is pregnant.

ETA: There is one other point that I think is worth adding about the status of the fetus in Jewish law. One of traditional Judaism’s strongest prohibitions is against violating the Sabbath. Indeed, one of the only reasons such violation is not merely permitted, but required, is in the interests of saving a life. It is important to note, therefore, that Jewish law does not simply permit, but requires one to violate that Sabbath in order to save a fetus that would otherwise die. In other words, the fact that Jewish law privileges a pregnant person over the fetus that person is carrying does not mean that Jewish law treats the fetus, as LoL said elsewhere, as “mere bits of tissue.”