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Behar: Abortion in Jewish Law.  May 25, 2019

Rabbi Randall Konigsburg

יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים. כג וְאִם-אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ. כד עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל. כה כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה כו וְכִי-יַכֶּה אִישׁ אֶת-עֵין עַבְדּוֹ אוֹ-אֶת-עֵין אֲמָתוֹ וְשִׁחֲתָהּ לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת עֵינוֹ. כז וְאִם-שֵׁן עַבְדּוֹ אוֹ-שֵׁן אֲמָתוֹ יַפִּיל לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת שִׁנּוֹ..

When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning.. But if other damage ensures, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.  [Exodus 21:22-25]

Consider:

  1. RaMBaM Mishneh Torah Hilkhot Rotzeah 1:9 This is a negative commandment: one must not take pity on the life of a rodef/pursuer. Therefore, the sages taught: if a pregnant woman’s labor becomes life threatening, it is permitted to dismember the fetus in her womb, either by a medication or by hand, for it is like a rodef who is pursuing her to kill her. But from the moment his head emerges he is not to be touched, for one life is not to be put aside for another, for this is the natural course of things.
  2. Babylonian Talmud Sanhedrin 72b Rav Hisda objected to Rav Huna: if its head emerged, it is not to be harmed, for one person is not to be set aside for another. But why? It is a rodef/pursuer! There it is different, because she is pursued from heaven.
  3. Responsa Tzitz Eliezer 9:51:3 (Referring to She’elat Ya”avetz 1:43) However, it makes sense to say that the main reason to permit (abortion for an adulterous married woman) is because this is “because of the mother’s need”, to save her in this way from embarrassment and disgrace...when her child is born, for all her days. This is similar to what Ya”avetz writes afterwards to permit even abortion of a legitimate fetus “out of great need”, even if not pikuah nefesh of the mother, but rather to save her from evil which great pain would cause her. For there is no need

nor physical and spiritual pain greater for a mother who has done teshuvah than that the sin of her illegitimate child will be living (reproof) constantly. It is simple and clear that if we permit (abortion) for this reason, then we should permit it in the case of a married woman who is raped, for the child would be illegitimate when conceived by rape. Therefore it seems that if there is a valid concern that the child will be born deformed or in constant pain we should permit an abortion within 40 days of conception, and at the most up to 3 months, and providing that the fetus is not moving.

  1. RaMBaM Hilkhot M’lakhim 9:4, 10:11 A son of Noah (a non-Jew who follows 7 basic laws given to the generation of Noah) who killed a person, even a fetus in its mother’s womb, is to be put to death.
  2. Koah Shor Siman 20 This is hard to accept that the Torah would consider the embryo as a person (nefesh) for them (sons of Noah) but not a person for us. Logic would not accept this. The fetus is not a person for them either; the Torah merely was more severe in its practical ruling in their regard. Hence, therapeutic abortion would be permissible to them, too.
  3. Proceedings of the Committee on Jewish Law and Standards, 1980-5, pp. 3-10. By Rabbi Kass Abelson. There is clear precedent in the tradition...to permit abortion of a fetus to save a mother’s life, to safeguard her health, or even for “a very thin reason,” such as to spare her physical pain or mental anguish. Some..also consider the well-being of other children, and the future of the fetus itself as reasons to permit abortion. All agree that there must be a reason to justify the destruction of the potential person the fetus will become after birth. Where there is reason to believe that the fetus may be defective..If the tests indicate that the child will be born with major defects..it is permitted to abort the fetus.
  4. Proceedings, ibid., p. 26 Rabbi Robert Gordis ..Abortion should be legally available but ethically restricted, to be practiced only for very good reasons.
  5. Proceedings, ibid. P. 37 Rabbis Ben Zion Bokser and Kassel Abelson Jewish tradition..does not permit abortion on demand. However, it sanctions abortion under some circumstances...The Rabbinical Assembly Committee on Jewish Law and Standards takes the view that an abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective.

[Rabbinical Assembly source sheet on Jewish Law and Abortion by Rabbi Lee Paskind]

Think about it: 

  1. Can we discover from these sources the value that Jewish Law places on a fetus and the mother? When does the fetus become a person?
  2. Who gets to make the decision if an abortion is permitted? Rabbis? the mother? the doctor? What role does religion play in these rulings?
  3. Under Jewish Law, is abortion permitted or forbidden? What do you think about the exceptions to these laws? Does a woman always have the right to choose? What rights does the fetus have?

 

 

Sermon given by Rabbi Randall Konigsburg at Beth Sholom B’nai Israel on Saturday, May 25, 2019.

Fri, July 10 2020 18 Tammuz 5780