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.