The mother's life has precedence over the fetus' Jewry has not sought to publicize its position on Brickner presents a string of Mishnaic and Talmudic public issues, much less to foist its views upon the quotations and concludes by saying, "However, no- civil legislatures. Of late, there has been a subtle but where does it state that killing the fetus by premature discernible shift in policy. Orthodox spokesmen have artificial termination of pregnancy is prohibitied." begun to advance their views for the edification of In truth, Brickner has himself quoted the locus classi- the general public. This has occurred in part because cus of that prohibition. The Mishnah, Oholot 7:6, of a growing concern lest fellow Jews be misled in declares that when "hard travail" of labor endangers terms of their own personal conduct, particularly in the life of the mother an embryotomy may be per- instances when antithetical opinions have been ad- formed and the fetus be extracted limb by limb. The vanced in the name of Jewish morality. However, of justificatory reasoning is incorporated in the text of no less significance are grave misgivings with regard to i the Mishnah in the explanatory phrase, "for her [the the general permissive moral climate and the erosion mother's] life has precedence over its [the fetus'] of the sanctity with which Western society has always life." It requires no great exegetic skill to deduce that regarded human life. In response to a question by when the compelling reason of preservation of mater- Senator Bayh I stressed that I appeared before the nal life is not present the fetus cannot justifiably be Subcommittee not in the role of a lobbyist but in the ' destroyed. Those few authorities who sanction destruc- role of a teacher, as an exponent of Jewish ethical tion of the fetus for lesser causes were indeed hard teaching. It is the function of a rabbi, and of the put to propound a more limited interpretation of this Rabbinical Council as a national body of rabbis, to Mishnah. provide moral guidance. The manner in which this is Furthermore (and perhaps of greater importance to the to be translated into law is a matter between legisla- specific issue at hand) Brickner fails to be mindful of tors and their consciences. the fact that the Talmud expressly teaches that feti- cide is a capital crime under Noachidic law. Sanhedrin 57b renders Genesis 9:6 as "He who sheds the blood of a man within a man, his blood shall be shed." "Who A critique of bleich on abortion is 'a man within a man!? queries the Gemara. "This is Balfour Brickner a fetus in its mother's womb." For the children of Noah a fetus is clearly a nefesh even according to While I have great respect for the rabbinic scholarship Brickner's use of the term. of my colleague Rabbi J. David Bleich, I maintain Brickner's statement with regard to the "plethora of that neither the Biblical nor the rabbinic tradition evidence from Judaism recognizing the legality of support the impression left by his testimony last abortion" is simply false. To suggest, as Brickner does, March before the Bayh sub-committee, that Judaism that abortion is a Jewishly acceptable, nay laudable, supports the views of persons like Senators Buckley, form of population control and family planning is a Helms and others. They claim that the fetus is a travesty of Jewish teaching. Particularly vexing is the "person" (full human being) from the moment of innuendo in the statement which reads: "The reasons conception and that to permit abortion under any traditional Judaism generally prohibits abortion de- circumstances is to commit murder. This view is not spite the rabbinic literature permitting abortion [sic!] in accord with Judaic teachings. Nothing Rabbi Bleich are complex and diverse." For some "complex and has written seems to refute my initial statement — diverse" reasons, unknown to me but presumably ". . . . that Jewish law does not consider a fetus 'a known to Brickner, traditional Judaism has chosen to person.' Jewish law agrees with the majority opinion distort the Halachah. One may present one's personal of those on the Supreme Court who, in their January views and those of liberal Judaism as forcefully and 22nd, 1973 decision stated: as eloquently as one is able; conceivably one may The Constitution does not define "person" in so many even argue that they are in keeping, if not with the words. The use of the word is such that it has letter of the law, with the spirit of Judaic values. But application only postnatally. surely one should be mindful not to misrepresent The unborn have never been recognized in the law Talmudic law or to impugn the posture of rabbinic as persons in the whole sense." Judaism. }. Judaism permits abortion. Let us state that clearly » Rabbinical duty is to guide morality and simply. I defy anyone to refute that statement. f Traditionally, for good reasons or for bad, Orthodox In the opening paragraph in his fine article on the 197 subject in Tradition Rabbi Bleich recognizes and born, and one life may not be taken to save another." admits this: On different but equally compelling grounds, Maimo- nides came to the same conclusion that a fetus is not While Judaism has always sanctioned therapeutic a person. In his Mishnah Torah Chapter 4, paragraph 1, abortion in at least limited circumstances, the per- he writes: tinent halachic discussions are permeated with a spirit of humility reflecting an attitude of awe and If one assaults a woman, even unintentionally, and her reverence before the profound mystery of existence child is born prematurely, he must pay the value of the child to the husband and the compensation for ;i and sanctity of individual human life. injury and pain to the woman. No quarrel! Elsewhere he deals with the issue from the argument Moreover, I concur with the sentiment expressed in of "pursuit" and comes to the same conclusion — i the last part of the above quoted paragraph of Rabbi There also is a negative precept: not to have compassion Bleich. I said as much in my testimony stating, on the life of a pursuer. Therefore the sages ruled "while Jewish law teaches a reverent and responsible (regarding) a pregnant woman in hard travail that it is < attitude to the question of abortion, reasons affect- permitted to dismember the fetus in her womb ..." I ing basic life and health may sanction or even require (.Hilkhot Rotzeach 1.9) abortion." (see page 6 of my testimony) The point is not whether Judaism gpves its sanction reluctandy — Most interpreters of the Maimonidean reference agree i the point is that it gives the sanction under certain that it is an argument in support of the right to thera- conditions. The destruction of a fetus may be viewed peutic abortion. in Judaism "with utmost gravity" (Rabbi Bleich's A similar declaration is found in Karo's Shulchan Aruch phrase) but that is not a prohibition against the de- (Chapter 423, par. 1). i struction of a fetus. What is at stake now in America is not the matter of "reluctance" or "gravity". What In neither instance is concern expressed for the status is at stake now is the possibility of a constitutional of the fetus. It is considered to be part of the mother amendment being enacted here which would prohibit and belongs jointly to her and her husband and thus abortions based on the idea that a fetus is a "person" damages must be paid for its premature death. However, with full human rights from the moment of concep- and this is important, the one who was responsible is tion, thus making abortion an act of murder. Make not culpable for murder since the unborn fetus is not no mistake; those "compulsory pregnancy" people considered A person. There seems to be little argument agitating for a change in the present statutes have from Jewish rabbinic sources that an unborn fetus (for one ultimate goal in mind — the abolition of whatever reasons) is not considered a person (a nefesh) abortion as a morally-accepted legally obtainable until it has been born. The fetus is regarded as part of act. It is inconceivable to me that any branch of the mother's body and not a separate being until it be- Judaism would lend its support to such an effort gins to emerge from the womb during parturition. In especially when the Halacha does not support such a fact, until forty days after conception the fertilized posture either directly or through the process of egg is considered "mere fluid." rabbinic deduction. The fetus is not a nefesh Evidence shows that abortion is permitted Rabbi Bleich recognizes that the fetus is not a living The central issue in the entire discussion is whether person according to Jewish law and reluctantly ad- or not Judaism regards the fetus as a person — a full mits this in his article — human being from the moment of conception. If it There are however other authorities who deem the does, then anyone electing to have an abortion would destruction of a fetus to be unrelated to the taking indeed be guilty of murder. But Judaism does not so of human life, but nevertheless forbidden on extra- describe the fetus. To the contrary, a fetus is not con- neous grounds. (page 77) sidered a person: "lav nefesh hu." Commenting on the classic Mishnah text (Ohalot 7.6) Rashi writes: "As These "extraneous grounds" to which he refers in no long as the child did not come out into the world it is way alter the basic assertion that Judaism does not not called a living being and it is therefore permissible prescribe capital punishment for feticide because the to take its life in order to save the life of its mother. fetus is not a "nefesh" — a person. Perhaps "nefesh" Once the head of the child has come out the child does not mean person. Then what does it mean? In may not be harmed because it is considered as fully his Tradition article Rabbi Bleich writes: "Since,

198 however, a fetus is not accounted as being a full- law and Noachidic law with regard to the assessment fledged nefesh or 'life' ..." (page 81). Is he making of potential life ... It would appear that the Halacha a distinction between human "life" and human holds them accountable only for actual in contra- "person"? If so, "nefesh" does mean person. Rabbi distinction to potential life. Accordingly, there is no David Feldman in his authoritative book "Birth Con- objection to Noachides aborting .. . within the first trol and Jewish Law" seems to agree: forty days of gestation. Since Halacha considers that during this initial period the embryo has not as yet A significant Responsum from eastern Europe of the developed distinctly recognizable organs or an inde- eighteenth century dealt with the matter of B'nai pendent circulatory system it cannot be considered "a Noah (non-Jews) in its own way, offering us in the man within a man" and hence its destruction does not V process a fine insight for the modern day debate on constitute murder under the Noachidic dispensation. ! the 'human' status of the embryo: it is not to be Rabbi Unterman avers that Nachmandides sanctioned supposed that the Torah would consider the embryo the performance of abortions by Noachides only with- : as a person (nefesh) for them (Sons of Noah) but not a person for us. The fetus is not a person for them in this forty day period." (Tradition article on page 85)i either; the Torah merely was more severe in its Much of Rabbi Bleich's argument is based on a Rabini- j practical ruling in their regard. Hence, therapeutic cally interpreted translation of the Biblical verse: abortion would be permissible to them, too. Does "Who so sheddeth a man's blood, by man shall his I the matter then depend on calling the fetus by the blood be shed" (Genesis 9:6). name 'person'? (atu bik'riat shem nefesh talya ( milt a') It depends rather on the responsibilities The Talmud records the exposition of R. Yishmael which the Torah has assigned in connection there- who gives a varient translation/interpretation of this with. passage which Bleich quotes: "He who sheds the blood ! of a man within a man, his blood shall be shed." To sum up then, abortion is not murder, neither for R. Yishmael then asks: "what is this 'man in man', and | Israelites nor for 'Sons of Noah.' , . . (Feldman he answers: "It refers to the fetus in its mother's womb.'' page 261) (TB Sanhedrin 57b and in the name of R. Hannina, in Gen. Rabbah 34, 14) Here one sees a classic example This is precisely the point I sought to convey in my of circular reasoning. In order to prove his point, original testimony when I stated: Bleich uses only the Talmudic rendering which was By this reckoning, abortion cannot be considered seemingly created in order to justify the very thought j murder. The basis for this decision is scriptural it wished to prove^ But, as David Feldman points out (Ex. 21.22). Talmudic commentators made the in his work: teaching of this Biblical passage quite explicit. They Some modem scholars hold this exposition to be more said that only monetary compensation is exacted of sociologic than textually inherent, that it represents a him who causes a woman to miscarry. No prohibition reaction against abuses among the heathen. In views is evident from this scriptural passage against destroy- of rampant abortion and infanticide says I. H. Weiss ing the unbom child. .. This concept is reiterated in in his history of Jewish tradition, R. Yishmael 'forced' many different instances and in many different the above exegesis out of the Genesis text to render places in rabbinic writing, (page 4 of testimony) judgment against the Romans. For further examples one may read Feldman (pages It is difficult to accept such a doubtful reference with ' 254 and 255) with special attention to the footnotes. its even more suspect textual treatment as exemplary ' Noachidic law vs. jewish law of a prohibition against abortion for Jews. Is all this a misrepresentation of Talmudic law and a Mental health as a compelling reason false posturing of rabbinic Judaism? I say it isn't! When may an abortion be performed? Are there any We referred to "Noachide laws" — laws pertaining to compelling reasons that would justify a therapeutic non-Jews. Rabbi Bleich used these laws to assert that abortion under Jewish Law? Threat to the physical feticide is a capital crime under "Noachidic law." (sic) life of the mother is one. So too is the health of the mother. Yet, in his major Tradition article he quotes extensive- ly from Rabbi Unterman, former Ashkenazic chief Rabbi Bleich quotes the opinion of Rabbis Jacob \ rabbi of Israel.. . "R Unterman draws a conclusion Emden, Ben Zion Uriel (late Sephardic Chief Rabbi f that there is a fundamental distinction between Jewish of Israel), Joseph Trani, Weinberg and others to con- j 199 firm this conclusion, (see Tradition, page 95-96) Religion should inform not persuade Rabbi Feldman's book leads to the same conclusion, A state must always be chary about seeking to legis- (see Rabbi Feldman's book p. 284 following) late morality lest it infringe on those rights. While it is true that religion, as one instrument, used to shape Can the mental health of a woman be a "compelling ethical values, has the duty to inform and instruct the reason" which might allow a person to have an secular state on what it thinks the state's posture on abortion? The answer seems to be "yes". There are a riven issue ought to be, it does not follow either classic responsa dealing with this question, one going that this is the only view or that the state has an obli- back to the 17th century. Rabbi Israel Meir Mizrahi gation to heed religion's advice. permitted abortion when it was feared that the Religion is not the sole authority in the determination mother would otherwise suffer an attack of hysteria of moral values, and religionists do have difficulty (in- (Peri Ha-aretz, Yoreh Deah, Sec. 21). Rabbi Unterman creasingly so) in defining what is and what is not also rules permissively in this matter in cases of ex- moral, i.e. the debate over the morality of pre-marital treme mental anguish. Suicidal tendencies are con- sex, the debate over obscenity laws, the current fracas sidered a threat to her life and constitute an adequate over the use of certain textbooks in the public schools warrant. A ruling in 1913 clarified the issue even of West Virginia, etc. more definitively: What can honestly be said is that Judaism does indeed Mental health risk has been definitely equated to permit abortion, certainly during the first 40 days of physical health risk. This woman who is in danger of pregnancy. From 40 days until birth the fetus is not losing her mental health unless the pregnancy is considered a living person (nefesh) but is regarded as interrupted, therefore would accordingly qualify. part of the mother's flesh and aborting it is not con- (Resp. L'vushei Mord'khai H.M. No. 39) (as quoted sidered murder legally. Abortion is permitted by most in Feldman p. 286) rabbinic authorities where a medical or psychiatric threat to the mother's life or health exists, though to That the laws of "pikkuah nefesh" (danger to life) be sure, it is an action which should be entered into apply to mental health danger as well as to physical only after the most careful consideration. Judaism hazard was again reaffirmed in a 1957 Responsum by looks on abortion with distaste, discourages and tries Rabbi Nathan Friedman of B'nei Brak in his Netzer to restrict it, but it clearly permits it and permission Matta'ai No. 8. is what is at issue in the current debate now raging in America. The implications of this attitude are obvious. Many "liberals" have long advocated liberalized abortion laws which would take into account psychological ... but others say ... needs of women, as for example women with large families who simply cannot face another pregnancy. Abortion is a technique which should be freely avail- Abortion right belongs to both man and woman able to women seeking physical and mental health. You ask: "Is abortion a woman's right?" No sectarian legalism, no civil prohibition should Pregnancies of the physically or mentally ill parent- stand in the way of a woman's right to that health. to-be, pregnancies caused by rape — warrant society's That is why I testified: legal "yes" to abort. There can be little objection to abortion of these and similar categories. I am well aware there are some citizens of this country who hold deep religious convictions which The right to abort is not, I believe, an exclusive right cause them to consider abortion as morally wrong. of the women, without question. Indeed — setting I do not quarrel with that conviction or with those aside the above mentioned extraordinary circum- who hold it. But, I cannot believe that the state has stances — we must assume that conception took place the right to foist through legislation the religious con- within those moments of unity between a man and viction of any one group upon all the citizens of the woman which give concreteness to the mystery of country... not to have the option of abortion existence. It, therefore, seems to me the rights of a would deny full protection under the law to those man must be respected as much as the rights of a whose religious conviction does in certain circum- woman. To give the sole rights to abortion to the stances recognize abortion, (testimony page 7) woman, injures the rights of the other. The sole 200 right carries with it the power to threaten, to punish, thing but an implacable desire for Israel's destruction. the ability to destroy and the strong possibility of Arafat's words must be taken literally. Too long we wrecking that which could have been beautiful. have sought comfort in the naive belief that Arab oratory has little to do with Arab intentions. I do believe that man has the right to live or to die, as he chooses. But this is his own individual life he If not negotiations with the PLO, what then? In Is- deliberates. To do the same for the unborn must in- rael there is a growing feeling among intellectuals clude the two human beings who together created a that Israel must hit hard and make a shambles of the life. Thus having created a life together — the responsi- Arab armies. This will provide a breathing space of bility for this life or its non-life must also be shared six or seven years during which, hopefully, Arab in- together. fluence in the world will diminish and the Arabs will have to settle with Israel. If the abortion-right movement is the answer to the economic, psychological and social stress caused by "Restoring Arab dignity" has only strengthened the a father-to-be irresponsibility, then the strength of Arab resolve to destroy Israel. The view of the "para- law should answer to that problem as a priority re- noids" turns out, in fact, to be the real world. quisite. Child support can never be regarded as de- Robert J. Schreiber meaning to a woman — it is a right and an obligation, Stamford, Conn. both moral and legal.

Alfred Ronald, Pimm's near; anyone feeling humorous? Harrison, New York We are extending an invitation to our readers for our In some cases negotiation is not an alternative Purim humor issue. We have come up with several In recent months, a significant section of the Ameri- suggestions: 1) a call to the founding of a new Jewish can Jewish intellectual community has begun to organization, like: The Society to create a Kashrut suggest that Israel must negotiate with the PLO. They for vegetarians; 2) Taking a famous Jewish person- say that the PLO will decrease its hostility to Israel ality and placing him/her in an unlikely situation, once it has the responsibility of governing, and, in like: Benjamin of Tudella visiting Miami Beach; any case, "What alternative is there?" Theodore Herzl reviewing "Fiddler on the Roof'; The single critical question is whether the PLO will 3) A prospectus for a Jewish T.V. series like: indeed cease its efforts to destroy Israel. The history "Rhoda" turns frum; "Chico" and the rabbi. These of terrorist movements does not suggest that they are some of our ideas, but we welcome humorous or moderate their activities under such conditions. And satirical articles on any Jewish subject. The deadline Arafat's pronouncements at the UN and recent is January 28th. Send your articles to Sh'ma, Box 567 statements by other PLO leaders do not suggest any- Port Washington, New York, 11050.

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