abortion would not violate a night of consci ence Father Decker's article implies that the histoncal matenal set out in length in the opinion, as well as the arbitrary three trimester divisions of pregnancy, are open to question. Indeed they are. The Court prohibited the states from recognizing a right to life in the unborn child at any time before birth. The Court leaves the abortion decision to the judgment of the pregnant woman and her physician for the first three months of pregnancy, ignoring completely the uncontroverted fact that there is a living human entity in existence at three months with a detectable heartbeat and recordable brain waves. For the second three months, during a period of rapid fetal development, the state may take such steps as are necessary to protect maternal health, but may not protect the unborn child. And even in the last three months, right up until the moment of birth, the Court refuses to recognize a night to life, though it does perceive a valid state interest in the "potentiality of life" at this point But this recognition of state interest is rendered meaningless by the exception that it does not extend to preserving such potentiality of life if an abortion is required to preserve the life or health of the mother. In Doe v. Bolton, the companion case to Roe v. Wade, the Court approved the view that the mother's health is construed to bear upon her psychological as well as her physical well-being and agreed that "the medical judgment may be exercised in the light of all factors-physical, emotiona!, psychological, familial and the woman's age-rele vant to the well-being of the patient." The Court added: "All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is this room that operates for the benefit, not the dis advantage, of the pregnant woman.” In other words, even in the last three months of pregnancy, if there is a medical judgment that an abortion is called for because of physical, emotional, psychological, familial factors, or because of the woman's age, it must be allowed. Is it any wonder that there has been a loud and persistent outcry against these abortion decisions? Is it any wonder that those who view abortion as the taking of innocent human lives are calling for a constitutional amendment to overcome these decisions, just as amendments were required to overcome the institution of slavery? Justice Blackmun himself has been quoted as saying that Roe v. Wade" will be regarded as one of the worst mistakes in the Court's history or one of its great decisions, a turning point." Those who consider it a grievous mistake should not be told to remain silent. REBUTTALS P RAYMOND G. DECKER ROFESSOR TRINKAUS does us the favor of drawing into clear relief the central issue in this debate. Throughout his rebuttal he assumes that fetal life is the life of a human person, and by such assumption misses the main thrust and true value of Roe v. Wade. Time and again he assumes his answer to the question, “When does the life of a human person begin?" In his mind there is no doubt on this issue, and therefore the law (whether decisional, constitutional or statutory) should enforce his scientific, philosophical and/or religious conviction on all of society. At every juncture of his rebuttal he assumes that there can be only one answer to that one basic question: "The controlling difference between contraception on the one hand and slavery or infanticide on the other is that the latter involves an attack on the fundamental rights of persons" "The moral argument against abortion is based on the premise that there is a victim--a tiny, helpless, innocent human being whose very life is being taken for the convenience of others." This is simply the classical situation of "begging the question." It is precisely this scientific, philosophical and religious assumption that the Court in Roe v. Wade does not enforce upon the whole of society. Indeed in its decision the Court did (in the words of Professor Trinkaus) take a position Substantively it was the position that because there is obvious doubt (scientific, philosophic and religious) as to exactly when the life of the human person begins, the Court will respect the various positions and religious consciences and not enforce through law one position over another. It is not the function nor prerogative of the Court to resolve philosophical, scientific, or theological questions which are so much in public debate as that concerning the beginning of a human person. "When those trained in the respective disciplines of medicine, philosophy and theology are un able to arrive at any consensus, the judiciary, at this point in the development of man's knowledge is not in a position to speculate as to the answer To equate Roe v. Wade with the Dred Scott decision is to miss the substantive issue involved in the former. The fact of the matter is that Roe v. Wade is dealing with the question of human instance in quite a different context than the Dred Scott decision. The former deals with the existence of human life in the context of embryonic life, the latter dealt with the existence of human life in the institution of slavery. To equate these decisions is to miss the very point of Roe v. Wade that in the situation of scientific and philosophical controversy of the proportions of abortion the Court is quite outside its prerogative in making that decision. Had the Dred Scott decision taken that position it would have well avoided being the superficially devised decision it was. As Professor Trinkaus points out, "In a large number of instances, constitutional protection is given contrary to prevailing opinion," implying that the Court in this case should have gone against the prevailing doubt on this issue and apodictically resolved the question. However, it should be pointed out that in recent years where the Court has had to deal with a more broadly pluralistic society it has enforced constitutional protection contrary to prevailing opinion, only on procedural mat ters, or in substantive areas which have a social impact, but not in areas which involve rendering apodictic answers to unresolved scientific, philosophical, or religious ques tions. Professor Trinkaus is correct when he says that I question the historical material set out in the opinion as well as the arbitrary three trimester division of pregnancy. This only indicates that I do not consider this to be a perfect decision. However, I argue for the basic thrust of the decision which legally protects the varying positions on that most difficult of metaphysical questions-when does the human person really begin to exist as a person? Apart from its obiter dicta, Roe v. Wade in its substantial position recognizes and respects the fact that this is still a question for many, and thus it should not impose a specific answer upon all. Professor Trinkaus states that those who consider abortion as a griev ous mistake should not be required to remain silent. I could not agree more, for this is precisely what Roe v. Wade preserves --that no one need remain silent with regard to this question-those who do not consider it grievous as well as those who do. I would caution Professor Trinkaus and many of those associated with the "Right to Life Movement" that in the insistence upon their apodictic certainty they are placing in jeopardy the philosophic, religious and even scientific convictions of others. If this is not an open question in the mind of Professor Trinkaus (which it obviously is not by his constant underlying assumption), at least in the wisdom of Roe v. Wade it is still an open question in our society Perhaps some day there will be sufficient evidence to make a more clear and distinct decision on this most difficult of questions Until that time let us abide by the social wisdom articulated in Roe v. Wade which allows for the realty of sincere and conscionable doubt. The position articulated by Professor Trinkaus harks back to the spirit of the Inquisition in which people were not allowed to doubt, the position taken in Roe v. Wade protects an open society that is able to tolerate differing opinions and even protects doubt and question From a practical point of view the Catholic community, instead of dissipating its financial and personnel energies on fighting the hopeless issue of a constitutional amendment, should seek to protect the rights of all under the provisions laid out in Roe v. Wade For example, the Catholic community could best serve its own interests and altruistically the interests of others by using its resources in championing the cause of many welfare mothers. According to the basic principle of Roe v. Wade the State cannot violate the personal privacy of its citizens with regard to the abortion decision. Yet it is a known fact that certain social workers in state agencies place extraordinary pressures upon welfare mothers to undergo abortion, even to the point of threatening cancellation of welfare payments This is clearly in violation of the decision of Roe v. Wade because it infringes upon the night of the mother to make her own decision with regard to abortion. Because the Catholic community has been so busily defending the stance as articulated by Professor Trinkaus, it has lost sight of the fact that Roe v. Wade cuts both ways precisely because it wisely protects individual conscience on this delicate issue. Because the Catholic community has been so singu larly occupied by the position as expressed by Professor Trinkaus, it has abandoned its opportunity to assist mothers who in the exercise of their consciences do not want abortions Blindness to the basically good thrust of Roe v. Wade has served to misguide the strengths and potential of the Catholic community. But then, does not blindness to the good and overzealousness in eradicating evil generally lead to lost opportunities and myopic visions? WALTER R. TRINKAUS My rebuttal was not based on the premise that it has been clearly established that human fetal life is a human being (although I believe it has, the extensive evidence thereof being relegated by Justice Blackmun to a footnote), but on the premise that the issue is such as to produce two requirements 1) The Court could not avoid taking a position, and in fact did when it prohibited protection, and 2) Those who believe fetal hfe to be human beings must in conscience seek to protect them by law. Father Decker assumes that the wide acceptance of abortion today stems from some doubt as to the nature of fetal life. This, I think, is unrealistic Most people involved with abortion have not analyzed this issue in any depth or at all Moreover, there is an ever-increasing tendency on the part of the more knowledgeable proponents of abortion to concede at the onset of debate that these lives are undeniably human. They would permit, however, the elimination of these lives if their continued existence is harmful or inconvenient to others. Additional reprints available ASSOCIATION FOR THE STATEMENT OF RABBI J. DAVID BLEICH (Rabbi J. David Bleich is spiritual leader of Yorkville Synagogue-Congregation B'nai Jehuda, and a member of the faculty of Hunter College and Stern College for Women.) The question of permissiveness with regard to the destruction of fetal life is a fundamental moral question. Western society has long recognized that man's moral conscience bids him to eschew homicide as an offense against morality. Murder is abhorrent to all and the universally recognized ban against the taking of human life is not predicated upon sectarian doctrines. By the same token, opposition to indiscriminate abortion is based on the contention that the unborn fetus is a human being and hence, its destruction is tantamount to homicide. This is a general moral issue, rather than a matter of particular religious teaching. Judaism regards all human life as inviolate. No individual may justifiably take the life of another, other than in the process of self-defense. Fetal life as a form of human life is entitled to the self-same safeguards and protection which society accords to all of its members. For this reason Jewish religious authorities, including the Chief Rabbis of Israel and France, as well as the Union of Orthodox Rabbis of the United States and Canada, have unequivocally branded abortion as an act of murder. Abortion is not a private matter between a woman and her physician. It impinges upon the most fundamental right of a third party-the unborn baby's right to life. It is precisely because the unborn baby is defenseless and unable to defend it rights that society has an obligation to guarantee the fetus protection under law. [From the Jerusalem Post, Mar. 2, 1976] DOCTORS WON'T DO ABORTIONS UNDER PROPOSED LAW (By Joanna Yeḥiel) The Israel Obstetrics and Gynaecology Society, representing some 400 doctors, including almost all the specialists in this field in the country's hospitals, said last week that it would refuse to perform all abortions under the amendment liberalizing the law for abortions at present being considered by the Knesset. In an "open letter" advertisement the Society gave notice that it will withhold its cooperation in the implementation of the law in the present form. The society said it was "greatly alarmed" by the draft legislation, which it termed "extreme" in comparison to parallel laws in other countries. For all practical purposes, it gives unrestricted permission to any woman who so wishes to terminate her pregnancy, the Society charged. The Society's members are upset about the draft law on several counts: First, because the Knesset Members discussing the bill did not take the gynaecologists' feelings or goodwill-into account. "You can't pass a law that someone should do something without asking him first. You can't decide what someone else should do in his professional field," a leading gynaecologist said last night. "You can rule that he can't perform abortions-but not that he must." The doctors also feel that not only was the draft law, as presented to the Knesset, not first submitted to the Society for comment, but also that the professional opinions expressed to the Minister of Health's advisory committee on abortion were disregarded. Members of this committee made several recommendations, notably that the husband's consent should be obtained too. "We think the liberalization should not be absolute. This law in effect allows any woman who wants an abortion to get one. We feel there should be many limits to this. After all, the border between abortion and infanticide is narrow," the gynaecologist said yesterday. “We don't think a woman has the right to interrupt her pregnancy, for example, without her husband's agreement. A pregnancy belongs to two people," he added. The Society in its advertisement stressed that it opposes the law "from real concern for the health and future fertility of the Israeli woman." "There are very many medical problems after an abortion." The gynaecologist explained. "For example, if a girl of 17 interrupts her pregnancy, there is a possibility of permanent sterility. A very large percentage of our cases of sterility are the result of an abortion," he stated. Asked about the prevalence of "backstreet abortions"-the amendment to the present law is designed to cut down on this kind of abortion-the Society member said that he didn't think the information on private abortions given by Knesset members was true. (Health Minister Victor Shemtov has been quoted as saying that the current law "does not recognize the reality of Israel life, where only 15,000 of the 60,000 abortions performed yearly are legal." "We have not been consulted, nobody knows what the new law means in terms of health or fertility of our women," he said. The new amendment would allow abortions during the first three months of pregnancy, subject only to the approval of a committee of two composed of a gynaecologist and a public health nurse or a social worker. The amendment was voted to committee on its first reading earlier this month. It would specify that abortions can be carried out only in approved medical institutions. The present law permits abortions only if the mother's life is in danger. ABORTION IN HALAKHIO LITERATURE (By J. David Bleich) (Rabbi J. David Bleich is spiritual leader of Yorkville Synagogue-Congregation B'nai Jehuda, and a member of the faculty of Hunter College and Stern College for Women.) There are three [persons] who drive away the Shekhina from the world, making it impossible for the Holy One, blessed be He, to fix His abode in the universe and causing prayer to be unanswered: . . . [The third is] he who causes the fetus to be destroyed in the womb, for he destroys the artifice of the Holy One, blessed be He, and His workmanship . . For these abominations the Spirit of Holiness weeps . (Zohar, Shemot 3b) Throughout the history of civilization abortions have been performed on a surprisingly wide scale among even the most primitive of peoples; feticide is singled out as one of the "abominations of Egypt" which the Torah sought to suppress. Despite the clause in the Hippocratic Oath in which the physician declares, “. . . nor will I give to a woman a pessary to procure abortion," artificial interruption of pregnancy, both legal and illegal, remains a widespread practice. While Judaism has always sanctioned therapeutic abortion in at least limited circumstances the pertinent halakhic discussions are permeated with a spirit of humility reflecting an attitude of awe and reverence before the profound mystery of existence and a deeply rooted reluctance to condone interference with the sanctity of individual human life. In recent years many attempts have been made in the legislative bodies of various states to implement changes in the laws governing the performance of induced abortions. Such proposals are designed to liberalize existing statutes by enlarging the criteria under which legal sanction would be granted for the interruption of pregnancy and destruction of the fetus. The ensuing discussion and the inevitable requests made of individual rabbis and communal spokesmen for an explication of the position of normative Judaism regarding this question has made it imperative that we examine this issue and acquaint ourselves with the teachings of our tradition regarding this area of serious concern. There can be no doubt that a pregnancy contraindicated by considerations of social desiderata and personal welfare poses grave and tragic problems. We are, indeed, keenly aware of the anguishing emotional ramifications of such problems and are acutely sensitive to their moral implications. Yet when we are confronted by these and similar dilemmas our response cannot simply echo humanistic principles and values, but must be governed by the dictates of Halakhah. An authentically Jewish response must, by definition, be found in and predicated upon halakhic prescriptions. To us, in the words of the Chazon Ish, "Ethical imperatives are . . . at one with the directives of Halakhah; it is Halakhah which determines that which is permitted and that which is forbidden in the realm of ethics." [1] This review of the halakhic literature concerning abortion has been undertaken as an attempt to refer the reader to the basic sources and relevant response and to direct attention to the halakhic intricacies upon which the issue revolve. In order to understand the manner in which halakhic rulings evolve it is necessary to focus attention upon the deductive process by means of which definitive pesak is derived from fundamental principles. If the resultant masa u-matan shel halakhah (halakhic discussion) is at times somewhat involved it must be emphasized that only by means of the halakhic dialectic is it possible to appreciate the halakhic process as it is employed le-hasik shemattesa aliba de-hilkhata, in reaching definitive conclusions on the basis of pertinent sources. BASIS OF THE PROHIBITION The basic halakhic principle governing abortion practices is recorded in the Mishnah, Oholot 7:6, in the declaration that when "hard travail" of labor endangers the life of the mother an embryotomy may be performed and the embryo extracted member by member. This ruling is cited as definitive by Rambam, Hilkhot Rotzeach 1:9 and Shulkhan Arukh, Choshen Mishpat 425:2. The halakhic reasoning underlying this provision is incorporated in the text of the Mishnah and succinctly couched in the explanatory phase "for her [the mother's] life has priority over its [the fetus'] life." In the concluding clause of the Mishnah a distinction is sharply drawn between the status of the fetus and that of a newly born infant. The Mishnah stipulates that from that moment at which birth, as halakhically defined, [2] is considered to have occurred no interference with natural processes is permitted since "one life is not to be set aside for the sake of another life." The inference to be drawn from the incorporation of the justificatory statement "for her life takes precedence over its life" is that destruction of the fetus is prohibited in instances not involving a threat to the life of the pregnant mother.[3] Tosafot (Sanhedrin 59a; Chullin 33a) states explicitly that feticide, although entailing no statutory punishment, is nevertheless forbidden. [4] Elsewhere we find that according to Rabbinic exegesis (Mekhilta, Exodus 21:12 Sanhedrin 84a) the killing of an unborn child is not considered to be a capital crime--an implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death" (Exodus 21:12). Tosafot, basing himself on the Mishnah, apparently reasons that although feticide does not occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction a moral offense. An offense not entailing statutory punishment is certainly not an anomaly. Many such prohibitions are known to be Biblical in nature. Others are recognized as having been promulgated by the Rabbis in order to create a "fence" around the Torah or in order formally to prohibit conduct which could not be countenanced on ethical grounds. Under which category is the prohibition against feticide to be subsumed? Is this offense Biblical or Rabbinic in nature? At least three diverse lines of reasoning have been employed in establishing the Biblical nature of the offense. R. Chaim Ozer Grodzinski demonstrates that the remarks of Tosafot, taken in context, clearly indicate a biblical proscription rather than a Rabbinic edict. [5] Feticide, as Tosafot notes, is expressly forbidden under the statutes of the Noachidic code. The Noachidic prohibition is derived by Rabbi Ishmael (Sanhedrin 57b) from the wording of Genesis 9:6. Rendering this verse as "Whoso sheddeth the blood of man within man shall his blood be shed" rather than "Whoso sheddeth the blood of man by man (i.e. through a human court) shall his blood be shed." R. Ishmael queries, "Who is a man within a man? . . . A fetus within the womb of the mother." Tosafot deduces that this practice is prohibited to Jews as well by virtue of the Talmudic principle "Is there anything which is forbidden to a Noachide yet permitted to a Jew?" Application of this principle clearly establishes a Biblical prohibition. R. Meir Simchah of Dvinsk, in his Biblical novellae, Meshekh Chokhmah, Exodus 35:2, offers an interesting scriptural foundation for this prohibition demonstrating that, while not a penal crime, the killing of a fetus is punishable by "death at the hands of heaven." [6] He observes that Scripture invariably refers to capital punishment by employing the formula “mot yumat-he shall surely be put to death." The use of the single expression "yumat-he shall be put to death" as, for example, in Exodus 21:29 is understood in Rabbinic exegesis as having reference to death at the hands of heaven. Thus, R. Meir Simchah argues, the verse ". . . and he that smiteth a man shall be put to death-yumat” (Leviticus 24:21) is not simply a reiteration of the penalty for homicide but refers to such destruction of life which is punishable only at the hands of heaven, i.e. the killing of a fetus. Reference to the fetus as "a man" poses no difficulty since the fetus is indeed described as "a man" in the above cited verse (Genesis 9:6) prescribing death for feticide under the Noachidic code. |