Monday, February 15, 2016

2,000 years of Jewish Judges on Abortion

Nadene Goldfoot                                                                        

Right now the USA is in a conundrum because out of 9 Supreme Court Judges,  from 2010 Court:
one has died, and Scalia was a conservative in the mix of 4 liberals and 5 conservatives.  Right now they are left with 4 Republicans and 4 Democrats.  Obama wants to appoint another quickly of his choosing since the issue of abortion is on the table.  They are:

to right): Back row (left Sonia SotomayorStephen G. BreyerSamuel A. Alito, and Elena Kagan

Front row (left to right): Clarence Thomas,  Antonin ScaliaChief Justice John G. Roberts,  Anthony Kennedy, and Ruth Bader Ginsburg
                                                                                                                Appointed year
Antonin Scalia was appointed by  Reagan. Republican      1986  Recently died at 79. 
Anthony Kennedy b: 1936 .......................... Reagan                            1988-80 years old
Clarence Thomas b: 1948........................... Bush, father                     1991-68 years
Ruth Bader Ginsburg b: 1933......................Clinton, Democrat           1993-83 years
Stephen G. Breyer b: 1938..........................Clinton                               1994-78 years
John G. Roberts b:1955..............................Bush, Republican, son     2005-61 years
Samuel A. Alito b: 1950............................... Bush                                 2006-66 years
Sonia Sotomayor b: 1954............................Obama, Democrat          2009-62 years
Elana Kagan b: 1960....................................Obama                             2010-56 years

Why is it that our federal government is deciding on a question of morality?  Death is in the picture.
In today's modern world, females can opt to take birth control pills or apparati.  When does abortion come into their life as a decision to make?  Why isn't the female allowed to make decisions for her own body and life?  If a female feels she must have an abortion and it is against the law to do so, she will find a way.  There have always been abortionists who have gone against the law and have performed them, to the detriment of the female, of course in many situations, for there is no way to make sure it is done professionally and safely.
Rashi, (1040-1105) from Troyes, France, famous codifier of the law, comparable to
constitutional lawyer, only on religion, descendant of King David.    
This question of abortion has been in the Jewish culture for probably over 2,000 years and the decisions are not the same as the Catholic church, but they came about with the wisest of judges who discussed the issue.  They had some basic laws to consider their decision, our moral laws.

                                               Basic Law
Rabbis made these decisions in their writing of the Mishnah in (Oholot 7:6).  It was concluded not later than the end of the 2nd century CE:  Also, the Bablonian Talmud in Sanhedrin 72b speaks of abortion further.  The commentator, Rashi, also adds information.  Mishnah was finished in about 220 CE.  by Rabbi  Judah Ha-Nasi of the Palestinian (Judah) Jews.  B. Talmud was finished in about same period, but a Talmud includes the Mishnah.  

It all stems from the 6th Commandments of Moses.    of Thou Shalt Not Kill.  It says in our Tanach that this takes faith in G-d.  Someone with belief in G-d as the Creator and Sustainer of human life will not commit murder.  Hopefully, today people see the reasoning for not killing (murdering), but it is still happening in our communities.   
1. It is not permitted to murder one person in order to save the life of another.
2. It is permitted to kill a potential murderer if this is the only way in which the life of his intended victim can be saved.  A potential murderer is called a rodef, translated as a pursuer, one who pursues another in order to kill him.
3. A fetus is not considered as a literal person.  Destroying a fetus is not considered as an act of murder.  Therefore, its destruction is not an act of homicide.
                                                     Why Abort?
 Codifiers were divided on what would be weighty reasons for terminating a pregnancy.

1. Agreed:  None would permit abortion for economic reasons or where the child is simply unwanted.
2. When the birth of a child would cause the mother to lose her sanity.
3. Permit it if child would be born seriously deformed or as an imbecile such as thalidomide babies.
4. Pregnancy is the result of rape, especially if woman is already married.
5. To save the life of the mother in which case is extremely rare.

                                               Judicial Reasoning

1.  If a woman finds it is extremely hard to give birth to her child and there is great danger to her life, the child must be destroyed in her womb since the life of the mother has priority over the life of the child.  BUT, if most of the child has already emerged from the womb in giving birth, it must not be harmed, since the claim of one life cannot override the claim of another life.

2. Because once the greater part of the child has emerged from the womb, it is considered as if the child had been born and the child is then a person according to Jewish law.  The life of the mother must not be saved by destroying that of her child.

3.  While the child is still in the womb, it is not a person in law.  Then this is not an act of murder.  One cannot compare this killing done to save the mother's life to the case of murdering one person in order to save the life of another.  It's more like comparing "destroy" with that of "murder"  There is this legal difference.

4.  The Talmud asked the Mishnah why it made a distinction between the fetus and the child when the greater part had emerged?  The answer is that the child upon emerging is a person, called a nefesh., but he is not a rodef.  It is the child which threatens the life of the mother and the law is that a rodef must be killed in order to save the life of his intended victim, and this applies even if the rodef is a minor and so not responsible for his actions.

5. The Talmud stated that the mother is not being "pursued" by the child but by "Heaven."  This means it is the result of natural causes and so the child's life can't be made forfeit on the grounds that he is a rodef.

6. Rashi, the famous commentator, said that the question of rodef can be disregarded since it is all due to natural causes.  The principal applies that it is forbidden to murder one person in order to save the life of another so that once the child has become a nefesh, when the greater part has emerged, it is forbidden to destroy him even to save the mother's life.
   BUT, a fetus is not a person (nefesh), and its destruction is not an act of murder.  The fetus then must be destroyed if this is the ONLY way in which the mother's life can be saved.

Update:  9:56am; Permissive rulings for abortions before the 40th day, and in some instances up to 3 months, are found in certain dire instances.  Opinion have ranged from stricter views of the Chief Rabbi of Israel, Isaac Unterman, to liberal views of Yehiel Yaacov Weinberg, rabbinic scholar and halakhic authority.

Today's Americans, not Jewish scholars, but 9 Judges of the Supreme Court,  must decide whether or not an abortion is permitted to be considered to be a homicide or not.  If it is, then no abortion would ever be permitted.  Evidently Catholicism does not allow it but considers life to start at conception, if one listens to the 17 various  Republicans who had thrown their hat into the ring of presidential hopefuls.

All the Jewish codifiers agreed that where the life of the mother is at stake, an abortion is not only permitted, but must be performed.

Isn't this decision stepping on the toes of religious rights?  Either the Catholic view will be followed or the Protestant one will, they most likely are varied on this..  A woman makes the decision to have some romance and then if found pregnant from it all-without protection-her decision is not her own?  This will only lead to abortion mills, as some women have always done.   On the other hand, if abortion is legal, women will not be as careful about using protection as they can always run to the hospital to have an abortion-most likely free under liberal health laws.  Abortions will be the accepted thing.  Is this the gift of the future for women?  This morality finding itself in the garbage pile?  Choosing a judge under today's circumstance takes much thought, as they will provide answers for more than abortion for us all.  Do they leave the "beholding to the president that appointed them" at the door, or do they think of just the problem before them to judge and how to they come to a decision?  What skills to they bring to the table to decide?  Who will be as acceptable as Judge Scalia was?

Book:  What does Judaism say about...?  by Louis Jacobs, and his reference was from Birth Control in Jewish Law, by David M. Feldman, New York, 1968, part 5, pp 251-294.
To Be a Jew by Rabbi Hayim Halevy Donin


  1. i read in exodus 21: 22-23:
    Exo 21:22 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine.
    Exo 21:23 And if any mischief follow, then thou shalt give life for life,

    i see that if a baby is born in an untimely way (premature but alive) through an incident like this, then there is to be restitution made in v 22. in v 23 the mischief being that the incident cost the baby's life then the judgment is a life for a life.
    that child is considered their "fruit" (life in other words) because life and livelihood is attached through loss to the name and even future inheritance in a family that laws given by moses covers about how the family lineages and lands are passed from one generation to the next so the child is considered a human life before it's birth.

    many don't agree but i think all the surrounding laws and guidelines in the pentateuch back up what i believe.

  2. Fantastic! You went back even further than I did other than the 10 Commandments. Moses did have a lot to say about it. Between the 2 of us, I think the Supreme Court judges have all they need to comment about Abortion rulings. I think these rulings are very logical, too.

  3. every life, even the life that is not here yet (in the womb) has it's own dignity and potential, to have a place under the sun in which to live and move and have their being. life is God's gift. He made it and who are we to determine to take that away from another? God weighs in on that, too, when a life is to be cut short through willful action(s) in any life lived under the sun, that go against the law He set over us all, that He gave to establish and bring order in His universe. the physical world teaches us much about this, but beyond that is the conscience, the spirit and will we are each born with. we were created in his image after all ;)
    the world suffers horribly, in every corner of it, when any person/people refuse to recognize God's plan and purpose for us--each for our own selves, and certainly others, too.
    what consequences have come about, that the world is groaning underneath the magnitude and weight of such rebellion against Him! God has the remedy for what was broken in eden. God loves to show mercy to us sinners and has no pleasure in the death of the wicked is what the prophet isaiah said from the mouth of God. abraham had his own faith, regarding his own shortfall and for his own life's provision, that was placed in the right Person, not himself, or any other, but in God. look at what that led to! God rewards faith in Him. there is only one true God--room for only one at the top--and the buck stops with Him, does it not?
    good thing. humans always have a shortfall somewhere, but the LORD has no deficient in any thing whatsoever. He's got it right, right now---and when all is said and done, all will know He is right, still.

    this is how i view the world i wake up in every day, and my place in it, and the place that others have as well, placing myself in His good hands. asking for His mercy and grace all the while. this was not always my view. i had to come through my own crucibles to be shown what really matters and choose to trust God through it all. i love and am thankful to the Lord and still a work in progress. i love the bible, which alone has told me the whole truth.

    thanks for the thought provoking the articles, nadene.
    people need to be challenged about what they really know and believe in the long run.
    life is indeed, a gift. we don't know and live that way as we should, if we are not taking that deeper look in these things.

  4. True words, Andre. It's sad that there is actually a genetic reason that some people wish to commit suicide and it's just now realized as a genetic tendency by the geneticists. I can't imagine feeling that way, though some people have environmental reasons to have that wish.
    I'm a college grad plus, but never read any literature by Albert Camus, so bought a few of his books online. I have "the Myth of Sisyphus" and he's a winner of the Nobel Prize in Literature. Well, last night I started reading and it's all about suicide and he's addressing it. I never read such a jumbled line of thought as his. I realize this is translated from French-and it must be missing something. He's not religious, and is trying to give reasons as to why suicide is not to be done. A suicidal person must have forgotten all the things you just said to contemplate it. Wasn't it said that G-d created the world and wants us to appreciate it? We're to take care of it.
    I was watching History 2 and they did a study of Iceland. People live there longer-till 83 for an average. One man was 100 in the program and exercized every day, and swam every day; 10 times stronger than me. How wonderful! Those people want to live for as long as they can and have a good chance to do so, being blessed with excellent genes, too. Life is precious. It shouldn't be wasted at any point along the way. We are so blessed to have reached full term and were born.