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New York’s Reproductive Health Act was signed into law by Democratic Gov. Andrew Cuomo on Jan. 22, to a standing ovation and acclaim by State Legislators. This new law allows abortion on the basis of “reasonable and good faith professional judgment based on the facts of the patient’s case” — “the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”

The law allows women to have an abortion up to 24 weeks without question. After 24 weeks, such decisions must be made with a determination that there is an “absence of fetal viability” or that the procedure is “necessary to protect the patient’s life or health.” That determination must be made by a “health care practitioner licensed, certified, or authorized” under state law “acting within his or her lawful scope of practice.” New York’s new law does not explicitly define “health.”

The context was, and is, a fear that a conservative Supreme Court might revoke or limit the famous Roe v. Wade decision to allow abortions. Although there is no chance of that decision being overturned, and most supreme Judges have said they do not intend to, the headlong rush to remove as many restrictions as possible is seen as a crucial plank in the Democratic, left wing and secular electorate.

I agree with the idea of minimum state interference in private lives and choices. I believe people have the right to make their own decisions regardless of sex or inclination. With sadness, I recognize there can be valid reasons for abortions that I do not always consider to be ethically wrong under Jewish Law. However, I do not agree that one can have an abortion on demand and right up until birth simply because the mother might not feel well or for trivial reasons and of course thst depends entirely on subjective judgments. And if that is an exaggerated description of the new situation in New York and similar states, the fact is that this is what the new law allows in practice.

And now to Jewish Law and Ethics. According to the Talmud, the fetus is recognized as such only after 40 days from conception. Before that, it is regarded as liquid and has no legal status. Interestingly, the child’s heartbeat can be detected around that time. Therefore, any act to end pregnancy during that period does not offend Jewish Law. After that time, only the threat to the life of the mother allows for an abortion on the grounds of self- defense. The fetus counts as a limb of the mother which may be removed to save her. Once most of the body has emerged, the fetus has the same status as any other human being.

In recent years many rabbis have allowed abortions of fetuses which are unviable (they would not be able to survive unaided outside the womb). Some have also allowed abortions where the mental state of the mother is so severe that carrying to full term might endanger her mental stability. As is clear, therefore, 24 weeks or later for abortion of choice contravenes Jewish Law.

All the New York Law now requires is that a single medically qualified individual agrees and then one can abort all the way up to full term.

There is a surprising anomaly in Jewish Law. On abortion, Jewish law is much more open and flexible than many other religions and ideologies. But according to the Talmud, all non-Jews have a moral obligation to abide by the Seven Commandments given to Noah. One of them is not to murder. Jewish Law interprets infanticide as murder. But whereas Torah law is relatively lenient for Jews, it is much stricter for non-Jews where any kind of abortion is forbidden except in cases of the mother’s actual life being in danger. Why is it stricter for non-Jews?

The reason most often given is that, as morally advanced societies are expected to have a heightened sense of the sanctity of life, pagan societies routinely were guilty of infanticide and had less regard for human life.  They needed more limitations, safeguards and protections- not fewer.

I used to find this offensive to the many non-Jews I knew who had a very highly developed sense of morality (obviously not those who condoned, and still condone, anti-Semitism and Nazi atrocities). But now I wonder if I was wrong. It seems that today’s dominant view is to not care very much at all about what happens to unborn children. Many apparently moral men and women are prepared to condone cutting a living organism out of a mother’s womb in the name of intersectionality and political correctness. Although opponents of abortion often exaggerate and go too far the other way, there is enough evidence of babies born viable and left to die, if not actually murdered, to make me wonder what kind of morality the Western World subscribes to.

There is a fascinating debate in the Talmud in Sanhedrin between Antoninus and Rebi Yehudah the Prince (the Head of the Jewish community some eighteen hundred years ago in the Land of Israel).  We don’t know whether Antoninus was a real Roman or a symbolic one. Some say he was Marcus Aurelius who was that rare phenomenon of a sensitive and wise emperor. Others say he is a Roman spokesman for Christianity. Either way, they actually consorted and debated in a civilized manner.

The question is: when does the soul enters the human body? Antoninus says at conception. Rebi Yehuda Hanassi says only when the fetus is fully formed. It looks like this was as relevant then as now. Antoninus was the representative of all that was morally good and caring in the non-Jewish world. In this debate, it is the Jewish spokesman who is more in tune with our modern thinking while representing a traditional Jewish perspective.

I was educated to think that we tend to become more civilized over time. Not necessarily so. The abortion issue in the USA today illustrates everything the religious right claims – that society has gone mad and lost its moral bearings.

9 thoughts on “Abortion

  1. Jeremy –

    OK, I’ll take the rap for endlessly being the contrarian, despite what might be my personal viewpoint. Unless I mistook your obviously well meant inference regarding the generally present low bar for morality in society today (which I wholeheartedly agree with!), you posit that a very large segment of the electorate – the “secular” to replace the old “pagan” – seems to need stricter guidelines because of their Bacchanalian, Libertine, and generally licentious and promiscuous behavior. Point well taken!

    Further, again, unless I am mistaken, that such low performance has now, because the people always get the Bread and Circus they want, become backed up by making such behavior “legal”. Also which I agree with.

    It seems, at least to me, however, that such a proposal erects an uncomfortably shaky straw man that Jewish society (the flip side of the Non-Jewish, Noachide Society) doesn’t need such strict guidelines for proper moral and ethical behavior, in this case when it comes to infanticide; perhaps because of their adherence to halacha, perhaps because of their generally higher madreiga of mussar, the better qualities of their pintele yid, etc. etc. etc., or a combination of all of the above.

    Are you quite sure that with the plethora of pedophile, massive welfare fraud, mortgage and securities fraud, money laundering, bribing of (and pandering to) NYC officials for gun permits and lights and siren escorts, attempted kidnapping, assault and extortion for hire for a Get, modesty policing and beating up 9 year old girls for not wearing neoprene stockings, and election tampering in Upstate NYS convictions, and acting under color of office in untold places, etc. etc. etc, just to name a few, that you really want to make such a comparison?

  2. You write: “I do not agree that one can have an abortion on demand and right up until birth simply because the mother might not feel well or for trivial reasons…” To me that’s like saying the person standing on the window ledge has a nice enough life so I don’t agree s/he should commit suicide. In 2015 only 1.3% of abortions in the US were at 21 weeks or after. I would challenge that any of those abortions were for “trivial” reasons. And even if you think they were, I would be almost certain that the reasons were not trivial to the women who aborted so late in a pregnancy.

    It’s also pertinent to mention that the abortion rate in the US today is dropping sharply due to better birth control. And, compare how abortions are done today with how they were done illegally only a few decades ago.

    So whilst it’s interesting to read about the Jewish view of abortion, I don’t think it it’s fair or correct to say: “The abortion issue in the USA today illustrates everything the religious right claims – that society has gone mad and lost its moral bearings.”

  3. Thumbs up to midlifesinglemum.

    I think it should be acceptable for men to hold forth on abortion, when they too can become pregnant. Like people who have opinions on what it is to be Jewish, are generally best placed if they themselves are also actually Jews. (How is it we know all this for some areas but in others have a more blinkered view?)

    Meanwhile, I was expecting something on (Exodus 21:22). Did it get missed due to not meeting the mark for sophisticated social advance?

  4. Thats silly. Are you really saying one can only have an opinion on something one has first hand experience? Slavery? Suicide? Death? And whats your point about Exodus exactly?

  5. One of the additional irritants in the ongoing saga of identifying antisemitism in the UK is that seemingly anyone can hold forth about Jewish identity,

    If you met a slave, having not been one yourself, you’d not tell them about slavery, would you? It’s the principle of experience trumps theory which holds good in most respects.

    I thought Exodus 21:22 was the foundation text. I probably last read it in Rachel Biale’s book on women and Jewish law.

  6. Exodus 21.22 is not a foundational text in regard to abortion at all, but damages. Specifically in the context of “an Eye for an Eye” where clearly the Torah did not apply it literally as in the case before of a miscarriage and after with animal damages.

    As for experiencing slavery, even if I never was a slave I can still surely opine on what I consider unacceptable discrimination or evil treatment of other human beings.

    And finally yes, sadly Barnes is simply illustrating how soccer players really make fools of themselves when they try to get involved in politics. To make matters worse, many members of the Labour Party are showing themselves to be even stupider or more malicious than soccer players. But then anti Semitism always was a pathology.

  7. (3rd attempt, now in two sections in case the software doesn’t like URLs)

    I strongly disagree with what you’ve written but the subject doesn’t lend itself to quick fire blog replies. I’ve rewritten a detailed response.

    There’s also a great deal that I don’t know:

    1) if you are stating your opinion which deviates from the standard one and have therefore picked some sources and rejected others.
    2) to what extent the same sources can be interpreted differently, and whether that’s what you’ve done.
    3) how much selection and rejection of sources is usual or even possible.
    (I’ve long since got rid of all my books on Jewish law so I can’t easily check what I recall, however Basil Herring’s Jewish Ethics and Halakhah for Our Time: Sources and Commentary, that I remember reading, is partly available online, including his chapter on Abortion,
    4) whether Basil Herring is eccentric in his exposition of Jewish law. As you see in the list below, he begins with the part of Exodus that I referred to earlier.

    Herring’s list headed Sources, on page 28, is as follows:

    A) Exodus 21:22-23
    B) Mekhilta Exodus, Nezikim 8
    C) Sanhedrin 67b
    D) Mishnah Ohalot 7:6
    E) Sanhedrin 72b
    F) Rashi, Sanhedrin 72b
    G) Sanhedrin 84b
    H) Maimonides, M. T. Hilkot Rozeiah 1:9
    I) Arakhin 7a
    J) Nachmanides, Torat ha-Adam, p.29
    K) Yevamot 69b
    L) Tosafot, Sanhedrin 59a
    M) Tosafot, Hullin 33a

    I don’t know what you make of this under the heading for letter I) Arakhin 7a:
    Mishnah: The execution of a pregnant woman who is condemned to death is not postponed until after she give birth. But once she is on the birthstool the execution is postponed until after she give birth.
    Gemara: Said R. Judah in the name of Samuel: “Before such a woman is executed she is struck across her abdomen, so that the foetus will die prior to the execution, to prevent her dishonour at the time of execution.”…said R. Nahman in the name of Samuel: “When a woman dies on the Sabbath while she is on the birthstool, one brings a knife to cut open her abdomen and remove the foetus…even if one must carry the knife by way of the public domain.”

  8. cont.

    To me, it reads like ‘mad Mullah’ speak. Bizarre, barbaric, insane. It’s not solely the violence but the focus, at such a time, on what’s allowed on shabbos. Point J) Nachmanides, enlarges on the Shabbat observance theme, quoting the Baal Halakhot Gedolot in support. All this from the religion that has such exemplary, life affirming values the Western world would do well to emulate it.

    Herring finds it a fascinating intellectual enquiry, in his introduction he writes, “The following discussion illustrates the complexity and richness, not to speak of the multiplicity of views, of the halakhic parameters of this issue”. (p.26). Would he write so enthusiastically of complexity, richness and multiplicity of views if the topic was Should Basil Herring Be Allowed An Artificial Hip Operation?

    None of the rest of the sources are any better, varying only in obscurity (e.g. K. I don’t know or care what ‘terumah’ is). (There’s no copy and paste option for a text in Google books, it all has to be typed out, so you’re spared more.) Fortunately, none of this is likely to end up on the front page of a national newspaper in English. Unlike bizarre, barbaric and insane Islamic rulings which on the day they’re ever published in papers such as the Metro, cause embarrassment to ordinary Muslims. There was one a few years ago from Morocco about a rapist who was ordered to marry his victim. My Muslim colleagues were embarrassed about that. But fortunately for us, neither Rashi nor Maimonides are ever going to make headline news in the English press in the UK. (Although if they did, the carnival of Corbyn’s contortions claiming he loves Jews (even though he can barely say the word, it’s almost always “Jewish people”) would be ratcheted up several notches and for that alone, it might be worth the shame.)

    Presumably, you don’t find any of this shameful. You might think the word entirely inappropriate. I’m supposing that this is what you think because there is no other way I can account for your choice of language to describe the hypothetical outcome of the law in New York. Your language is as chilling as that of the authors Herring cites. His list is presented as a sequential argument and I think your thinking is similarly an extension of that tradition. You write of, “abortion on demand”, “simply because the mother might not feel well”, “for trivial reasons”. How do you not see that this is shocking, that it reads as unimaginative, glib and callous? (As well as baseless because there are no examples of any such things occurring.)

    You know how you feel about kaporos? Well, that’s how I feel about this, only multiplied several times. I don’t really care about the chicken swinging, not being a chicken or ultra orthodox. I care about what Judaism has to say about abortion because I am human and there already exists a tragic history the world over of women dying from want of medical intervention because of religious interference.

    As for women’s fear being groundless that under Trump, Roe v. Wade may be revoked, how do you account for the surge in IUD fittings, reported here, in CNN’s report of a study confirming a 21.6% increase in the 30 days after his election? I don’t mean that they believe they may need an abortion but for contraception but that under Donald grab ’em by the pussy Trump, women’s health will be compromised in a variety of respects. The court in New York has done a wonderful thing, as one of my grandmothers would have said, “bless the hands” that signed it into law.

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