This post is a con­tin­u­a­tion of my sec­ond response as part of this thread on repro­duc­tive rights at Alas, A Blog where I raised the dif­fer­ences between the Jew­ish and Chris­t­ian approaches to the sta­tus of the fetus — because I think there is no way to avoid the fact that the entire abor­tion debate in this coun­try is being car­ried out, explic­itly and implic­itly, in Chris­t­ian, or at least Chris­tian­ized terms — and also between the Jew­ish approach and the approach which made abor­tion legal in the United States, which is grounded in a woman’s right to pri­vacy. I’m not so much inter­ested here in argu­ing that either the Jew­ish or right-to-privacy approach is bet­ter than the other in sup­port­ing a woman’s right to choose than I am sim­ply in lay­ing out a dif­fer­ent way of fram­ing the issue of abor­tion and see­ing what peo­ple make of it in the con­text of the strug­gle to main­tain abor­tion rights that is going on in this country.

In pre­sent­ing the Jew­ish posi­tion on abor­tion, I will be sum­ma­riz­ing from Rachel Biale’s book, Women & Jew­ish Law (Schocken Books 1984), and David M. Feldman’s Mar­i­tal Rela­tions, Birth Con­trol and Abor­tion in Jew­ish Law (Schocken Books 1968). Each of these two authors dis­cusses at great length the jus­ti­fi­ca­tions within Jew­ish law for ther­a­peu­tic abor­tions, abor­tions that are pre­formed in order to save the mother’s life, at the core of which is the assump­tion that there is, as Biale writes, “a clear distinction…between the woman and her child: the woman is a liv­ing person…and any­one who…kills her [has com­mit­ted a cap­i­tal crime].… The fetus is not a per­son in this sense” because the fetus has not yet become an indi­vid­ual; it can­not live inde­pen­dently out­side the womb and so is not under­stood to have the same sta­tus in legal or moral/ethical terms as the mother (220). After this dis­cus­sion, the authors turn their atten­tion to the Jew­ish posi­tion on non-therapeutic abor­tions, cit­ing a pas­sage in Trac­tate Arakhin in which the rab­bis ask – and here I am going to para­phrase rather than quote, but imme­di­ately rel­e­vant pages in the two texts are: Biale, 223 – 225; Feld­man, 289 – 294 – whether a woman who is sen­tenced to death and who is dis­cov­ered to be preg­nant after her sen­tence has been pro­nounced can be exe­cuted before she gives birth.

The point of the ques­tion is to con­sider not the ethics of the death penalty, but rather the sta­tus of the fetus. If the sen­tence is car­ried out before the woman gives birth, exe­cut­ing her means killing the fetus as well, and so the ques­tion arises, since there is no med­ical rea­son to con­sider the fetus a dan­ger to the mother’s life, whether the fetus’ life should be given suf­fi­cient prece­dence so that it is not killed for its mother’s crimes. The answer the rab­bis come to is that one does not wait for the woman to give birth to exe­cute her because “a delay between sen­tenc­ing and exe­cu­tion is a form of tor­ture” called in Jew­ish law innui ha-din, and “innui ha-din, delay in car­ry­ing out the sen­tence, is pro­hib­ited in Jew­ish law because it adds unwar­ranted anguish to the pun­ish­ment” (Biale, 225), and one can only imag­ine how much more anguish would be added in this case, forc­ing a woman to carry a preg­nancy to term know­ing all the while that the birth of her child will also sig­nal the end of her life. Accord­ing to Biale, “It is pos­si­ble to deduce from [this pas­sage in] Arakhin a gen­eral prin­ci­ple that a fetus may be aborted to avoid men­tal anguish (any con­di­tion anal­o­gous to innui ha-din) or dis­grace to the mother” (ibid.).

Biale seems to hint that, depend­ing on the inter­pre­tive strate­gies one uses and the prece­dents one chooses to cite, it might be pos­si­ble to arrive at a posi­tion within Jew­ish law that would allow abortion-on-demand and that would give a woman con­trol over her own body in the way we think about repro­duc­tive rights today, though that posi­tion, as I read Biale and Feld­man, is not sur­pris­ingly not in the main­stream of Jew­ish thought. What really inter­ests me about this rea­son­ing, how­ever, is that it posits the per­mis­si­bil­ity of abor­tion not from the point of view of a woman’s right-to-privacy, but rather from the point of view of pro­tect­ing and pre­serv­ing the qual­ity of a woman’s life, even if that life is mea­sured only in the rel­a­tively short time between the hand­ing down of a death sen­tence and the exe­cu­tion it man­dates. More to the point, this rea­son­ing oblig­ates the state to respect the qual­ity of the woman’s life even when the state has an inter­est in bring­ing that life to an end. This posi­tion is only pos­si­ble, how­ever, because Jew­ish law starts from the posi­tion that the fetus is not and can­not be con­strued as a per­son in the same way that the mother can.

Unfor­tu­nately, I will have to pick this up again in another post. I am off to play with my son, whom I can­not put off any longer.