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Abortion and the Jewish Ethical Tradition: Is There a Single Authentic Position Larry V Yale University EliScholar – A Digital Platform for Scholarly Publishing at Yale Yale Medicine Thesis Digital Library School of Medicine 1988 Abortion and the Jewish ethical tradition: is there a single authentic position Larry V. Amsel Yale University Follow this and additional works at: http://elischolar.library.yale.edu/ymtdl Recommended Citation Amsel, Larry V., "Abortion and the Jewish ethical tradition: is there a single authentic position" (1988). Yale Medicine Thesis Digital Library. 2346. http://elischolar.library.yale.edu/ymtdl/2346 This Open Access Thesis is brought to you for free and open access by the School of Medicine at EliScholar – A Digital Platform for Scholarly Publishing at Yale. It has been accepted for inclusion in Yale Medicine Thesis Digital Library by an authorized administrator of EliScholar – A Digital Platform for Scholarly Publishing at Yale. For more information, please contact [email protected]. library YALE MEDICAL LIBRARY Permission for photocopying or microfilming of "_ A Ipqy f, cr1-' &*■<( fb'L ^ is Tl* t <:*.( /ip-r? 11 (Title of thesIs) for the purpose of individual scholarly consultation or refer¬ ence Is hereby granted by the author. This permission is not to be Interpreted as affecting publication of this work or otherwise placing it In the public domain, and the author re¬ serves all rights of ownership guaranteed under common law protection of unpublished manuscripts. Signature of Author Date hug 241988 Digitized by the Internet Archive in 2017 with funding from The National Endowment for the Humanities and the Arcadia Fund https://archive.org/details/abortionjewishetOOanse Abortion and the Jewish Ethical Tradition Is There a Single Authentic Position A thesis submitted to the Yale University- School of Medicine in Partial Fulfillment of the Requirements for the Degree of Doctor of Medicine by Larry V. Amsel \\i 1988 -T\\2> via Abstract Abortion and the Jewish Ethical Tradition: Is There a Single Authentic Position Larry V. Amsel 1988 The last decade has seen a significant increase in the publishing of English language texts and articles on Jewish bioethics. On the question of abortion in the Halakha, Jewish religious law, many authors take a stringent position. They allow abortion only in cases of serious medical danger to the mother. Moreover, these authors claim that their position correlates with a strict interpretation of the Halakha. Articles critical of this position have begun to appear. We review the literature and find that the stringent position is not correlated simply to a strict interpretation of Jewish law, but rather to a systematic bias in interpreting and applying that law. Possible sources of this bias are found in 1) the methodology of interpretation 2) ethical and theological assumptions which do not necessarily represent an authentic Jewish viewpoint and 3) the institutional forces that condition contemporary Rabbinic decision making. We conclude that what is relevant to the debate on abortion is the dialectic method of Halakha which is based on comparing new situations with century old conclusions. There is no broad ethical framwork. Instead, the ethics of the Halakha are contained in an ongoing discussion of its cases. Table of Contents Chapter I - Introduction Section 1. Background 1 A. Theology in Bioethics 1 B. Halakha - The Traditional Jewish Law 3 Section 2 . Plan of the Work: Evidence and Arguments. 6 A. The Stringent Orthodox Position and the Correlation Claim 6 B . Evidence and Arguments - A Critique of the Stringent Position 7 1. The Early Halakhic sources 7 2 . Contemporary Interpretations 8 3 . The Stringent Position and Legal Absolutism 9 4 . Cardozo and His Legal Framework 10 5 . A Critique of the Stringent Position 11 6 . Conclusion 12 Chapter II - Halakhic Sources Section 1. Overview of Halakhic Sources 13 Section 2 . The Old Testament and Its Rabbinic Interpretation 14 A. Abortion as Tort 14 B. MNefsh Adam” The Breath of Life 15 C. Rabbi Yishmael - A Divergent Opinion 17 D. The Waters of Contention 18 E. The Septuagint 19 F. Conclusion 20 Section 3 . The Talmud and Early Authorities 20 A. The Mishna Concerning a Difficult Labor 20 B. The Ruling of Maimonedes - The Fetus as Aggresor 22 C. The Condemned Woman 23 Section 4 . The Later Authorities and the Responsa Li terature 26 A. The Two Branches 26 B. The Restrictive Approach 27 C. The Lenient Approach 28 Secton 5 . Conclusion 31 Chanter III - Abortion and Contemporary Halakhic Exeaesis Section 1. Overview of Contemporary Positions 33 Section 2. The Stringent Orthodox Position 34 Section 3 . The Lenient Halakhist 35 Section 4 . The Non-Halakhic Permissive Position 36 Section 5. The Non-Halakhic Anti-Abortion Position 38 Section 6 . Conclusion 42 Chapter IV - The Stringent Halakhist and Legal Absolutism Section 1. Introduction 44 Section 2 . Halakha as an Absolute 45 Section 3 . Halakha as a Legalistic System 46 Section 4 . Summary 49 Chapter V - The Nature of the Halakhic Process Section 1. Introduction 51 Section 2 . Cardozo's Framework 52 Section 3 . Summary 59 Chapter VI - Critique of the Stringent Position Section 1. Introduction 62 Section 2 . Precedent and Principle: The Method of Analogy 63 A. When Men Fight 63 B. The Difficult Labor 64 C. Maimonedes and the Aggressor Concept 65 D. The Condemned Mother and her Fetus 67 E. Uber Yerek Immo - Pars Viscerum Matris 68 F. Maya Balma - It is Mere Fluid 69 G. Post Natal Viability 71 H. Violating the Sabbath and the Day of Atonement 72 I. The Argument From Silence 74 J. The Nature of the Prohibition 74 1. Abortion as Murder 75 2. Abortion as Failure to Procreate 76 3. Abortion as Wounding 77 4. Aborton as a Rabbinic Edict 77 Section 3. Principles Derived From Other Branches of Law 78 A. Treatment of the Terminally Ill 78 B. The Special Role of Healing 80 C. The Centrality of Procreation 82 D. A Consistent and Systematic Bias 83 Section 4. Theological and Philosophic Assumptions 84 A. Meaning and Value of Life 85 B. Consequences 88 C. Summary 93 Section 5. The Method of Sociology the Halakhist as Legislator 93 A. Slippery Slope 94 B. Response to Genocide 94 C. Institutional Factors 95 Chapter VII - Conclusion Section 1. The Correlation Claim Revisited 98 Section 2 . The Mother Life Takes Precedence 100 Section 3 . The Lenient Hal akhic Position 101 Section 4 . The Underlying Belief System 105 Section 5. Afterword: The Halakha 107 Chapter I Introduction Section 1. Background A. Theology in Bioethics Our starting point for this paper is the question: What contribution can the Jewish religious law make to the contemporary abortion discussion? We might wonder first: what role should any religious thought play in contemporary formulations of bioethics. In calling for an increased dialogue between secular bioethics and theology E. E. Shelp^ points out that often there is a religious or theological basis for our positions in bioethics. We often ignore this, however, either because we believe ourselves to be totally rational secularists, or if we acknowledge the religious component of our thinking we fail to develop these ideas: in an effort to be persuasive on such grounds as diverse persons can agree upon; often to introduce theology becomes [we fear] a reason for one's secular colleagues to discount what one might say about medical ethics.2 Regardless of our position it becomes important to excavate the religious-theological components of our thinking. If we are professedly religious we need to be honest with ourselves and our colleagues on how this affects our views of bioethics. If on the other hand we claim to be secularists it is perhaps even more important to examine our premises and recognize how strongly influenced our moral thinking is by specifically 2 religious categories. It is from this latter position that this paper is written. The philosopher MacIntyre has identified three tasks along the road to the above goal: First ... a clear statement of what difference it makes to be a Jew or a Christian or a Moslem rather than a secular thinker in morality generally. Secondly ... a theological critique of secular morality and culture ... Third [to clarify] what bearing this has ... on specific problems which arise from modern medicine.3 We will touch on each of these points as we move through this paper. The kind of issues that are raised in medical ethics in general and the abortion debate in particular do not seem to be solvable by the science of medicine nor we believe by the study of a secular ethics. For they touch on the meaning and value we attach to the very fact of our existence, the fears we attach to end of our existence and the eternity we experience in our encounter with others in the same predicament. It is this that makes these issues so disturbing in a secular world. If we ignore religion the issues resurface in the guise of medicine. The point we believe is that one can have secular answers but one can’t avoid asking religious questions. We also agree with MacIntyre that it is important to examine these issues from specific religious perspectives. In the abortion controversy especially there has often been a melding together in the interest of "gathering the troops" to support this side or that. Pronouncements are made by interfaith groups that may help promote one side of the debate 3 or the other but do little to educate us about what the particular traditions have had to say on the issue. We need the multiplicity of different views and we especially need to preserve the history of each tradition's struggle with these issues. We are not the first generation to wonder. In this paper we hope to contribute to this task from the specific perspective of traditional Jewish law - the Halakha.
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