Abortion and Jewish Law: An Interview with Rabbi Moshe Tendler
Volume 2 , Issue 5 (June, 1989 | Sivan, 5749)
Rabbi Dr. Moses D. Tendler,
noted authority on medical ethics and the relationship of medicine and science
to Jewish law, serves in a dual capacity as professor of biology at Yeshiva
College and as a rosh yeshiva (professor of Talmud)
at the University-affiliated Rabbi Isaac Elchanon
Theological Seminary (RIETS). A leading expert on Jewish medical ethics, Dr. Tendler holds the Rabbi Isaac and Bella Tendler
Chair in Jewish Medical Ethics at
Rabbi Tendler discusses the halakhic and ethical implications of abortion and contrasts the position of the ?Right to Life? movement with the Torah's mandate to preserve maternal life.
Jewish Review: Rabbi Tendler, the recent
Rabbi Tendler: The ?Kleincase? to which you refer, can be used as a course syllabus, either for a course on medical ethics or for a year's study of Torah. I think we'd do best if we outlined the key issues raised by this case from the point of view of secular and Torah ethics. When we are dealing with an incompetent patient, there are already a host of questionswhich arise, first among them being the issue of guardianship. In secular law it is the family which has the primary guardianship role. In halakha, family plays little or no part in this. There is no reason, for example, why a husband who hasn't spoken to his wife for twenty years because they have been separated, should suddenly become her guardian as if he had only her welfare in mind. There is an assumption in secular law that family will always do what is best for the patient. Regrettably, in modern society, this assumption must be reevaluated on a case by case basis, and it is often a false assumption.
While, the family has always been the Jews' great strength, the halakha does not trust the family to act as a guardian in such matters. According to Jewish law, the decision must be made by a Ray, using halakhic principles. The second issue raised by the Klein case concerns the human status of the fetus. To what extent does the fetus deserve our protection independent of our concern for the health of the pregnant woman? Is the fetus a person?This question is only raised, as it was in the Klein case, when there is a potential contlict between the interests of the mother and the presumed interests of the fetus. The right of the mother to medical care may come into conflict with the rights of the fetus to be maintained, to be kept alive, to be born. Now, this issue has already received treatment in halakha, and we have no doubt as to what the conclusion must be: Fetal life must give way to maternal life. Maternal life must always take precedence over fetal life. If, indeed, the medical facts presented in the Klein case were accurate, (that the ongoing pregnancy would in any way endanger the life of the mother), then, indeed, we treat the fetus, in the language of the Torah, as a rodef, as a ?pursuer,? and we sacrifice the fetus for the benefitof the mother. The issue which had to be decided medically, was whether the continuation of Mrs. Klein's pregnancy would make it Less likely that she would recover from the trauma that she suffered in the car accident. Very competent physicians argued that this was true, therefore, we have no choice but to accept their opinion. Aborting Mrs. Klein was the right and proper thing to do.
Jewish Review: Do we permit abortion only to save the life of the mother, or even there is just danger to her health? Must it be a life or death issue?
Rabbi Tendler: Yes. but ?life or death? defined halakhically for this purpose, as well as for other questions such as when we are permitted or even obligated to violate the Sabbath to save a life, means an increment of risk to an individual's life. The incremental risk may be small, but it must be significant, and it must be life itself, not merely ?limb.?
Jewish Review: Could you explain further about the child being considered a ?pursuer? of the mother? In the Klein case, the child was certainly not the cause of her dangerous condition, but, at most,a contributing factor.
Rabbi Tendler: When we treat the fetus as arodef, a pursuer who is endangeringthe life of the mother, we don't do so in the context of an ideal mother who is perfectly healthy. We do so with a mother who has a heart condition or a kidney condition, for example, which is not the fault of the baby. Likewise, in the Klein case, we have a woman with a brain trauma which has put her into a coma. It is important to point out that the thrust to defend the Klein fetus came from the ?Pro-lifers,? who are largely Catholic, and who follow the edict of their Pope, who has been resting his prestige on his ability to prevail on the abortion issue. We must realize that, in the Catholic Church, fetal life takes precedence over maternal life, because in their view, a fetus, unlike the mother, is yet without sin. This is a fundamental difference with the Jewish point of view on abortion.
Jewish Review: And Isuppose this is why we don't see Jewish groups joining the ?right to life movement.?
Rabbi Tendler: Correct,and this is why a person such as I, who is as opposed to abortion as anyone, will not partake in a joint statement with such groups, for they are actually prepared to commit murder according to our halakha. To sacrifice the woman in order to save the fetus is an act of murder according to Jewish law.
Jewish Review: Now, according to halakha, is an unsanctioned abortion of the fetus a form of homicide?
Rabbi Tendler: There is a controversy in this area, but I think anyone who has studied the law carefully will realize that Rabbi Feinstein's analysis of this issue which was published in the last volume of Iggeres Moshe, clearly proves that unsanctioned abortion is an act of murder. Remember, a non-Jew who commits abortion, according to halakha, is put to death. A Jew is not put to death, but according to the commentary of the Meiri, this is because no death is good enough for such a person. For a Jew who has been trained in the ethics of Judaism, to take an innocent life is an almost unparalleled crime. You realize that the prohibition against abortion originates in what we call the Sheva Mitzvot B' nai Noach, (the seven commandments given to the sons of Noah,) which apply to allpeople, Gentile and Jew alike. After the flood, one of the first commandments which God reiterated to Noah was -Remember he who spilleth the blood of man within man, his blood shall be spilled,? (Genesis, 9:6). The Talmud provides two interpretations of this Biblical passage, the one applies to abortion, the second to suicide: spilling ?the blood of man within man? means suicide or abortion, and both are tantamount to murder.
Jewish Review: Could you explain, however, why it is that the Gentile abortionist would be punished more severely than the Jew?
Rabbi Tendler: It is ageneral rule that a violation of any one of the seven Noahidic laws is punishable by death. There was originally only one penalty. However, when God took those seven Noahidic laws and expanded them into 613 commandments, He provided for a variety of different punishments. In exchange for accepting the discipline of the entire Torah, God modified the punishments, realizing that one cannot run such a broad system ofmitzvot under ?martial law,? where one will receive the death penalty for any infraction.
Jewish Review: But is it a greater sin for the Gentile to perform an abortion asopposed to a Jew?
Rabbi Tendler: Not at all. Tosafot in Talmud Sanhedrin,says with respect to your very question: ?Don't you ever think that you went from a higher level of ethics to a lower level when you adopted Judaism.? The Meiri explains that a Jewish court, a Bet Din , is limited in what it can do to you, (they can stone you, choke you, behead you) but one who does so heinous a crime as abortion, the Meiri says, deserves a more severe punishment than that, one that only God can provide.
Jewish Review: So if abortion is a homicide or murder, why does the halakha attach a greater value to the mother?
Rabbi Tendler: This is where the concept of Rodef, the pursuer, comes in. When you have a situation where one person's life is clearly endangered by the actions of another, then, if need be, you may kill the person who is causing the danger.
Jewish Review: But the fetus is completely innocent; he has no intention to act as a rodef.
Rabbi Tendler: This is, of course, true, but let me explain the law using another analogous circumstance. Let's say there was a small child who has its finger on a button which, if pushed, will activate a bomb that will blow you up. Now, he's just playing, but if there is absolutely no other way to save your life, you're allowed to kill him. The Rodef concept is not one that is designed to mete out punishment, but is rather one that is designed as a mechanism for self-defense.
Jewish Review: Could you comment on the Talmud's description of the embryo as being ?mere water? during the first forty days? This would seem to suggest a more lenient view of abortion, at least in the earliest stages of pregnancy.
Rabbi Tendler: Let me answer this by referring to the hypothetical scenario in which we know that a woman is one day pregnant (assume that one could know such a thing). This case is actually discussed by the Rambam in Torot HaAdam. Let's say its Shabbos or, better, Yom Kippur, and this woman begins to stain and you realize that unless you break the Shabbos and take her to the hospital, she will abort. Now this abortion would be nothing more than a simple menstruation for her. Her life is not involved. All that is involved is the potential life of a one day old embryo. The halakha is that you transgress the Shabbos and Yom Kippur to save that embryo. So this embryo is not like water. The expression in the Gemmorah ?maya b'almo,? the word ?mayim? means liquid? and unformed. Now, with the abortion of an unformed fetus, there is, indeed, no act of murder. It is looked upon simply as a potential unrealized. Now when it comes to the laws of Shabbos and Yom Kippur which are laws between man and God, God says, ?I am prepared to vacate my instructions in order to allow this potential life to proceed.? However, when it comes to laws governing the relationship between man and man, the abortionist who acts during the first forty days has not taken an actual human life, only a potential life, for the embryo did not yet have a claim to life.
Jewish Review: So from the point of view of God, for whom potentiality is reality, it is a life (we are saving) but not from the point of view of man?
Rabbi Tendler: Yes. For example, if a woman who has a serious heart or kidney condition should become pregnant, we would urge her to abort before the fortieth day because, indeed, we are more lenient about abortions that are outside the category of retzicha or murder. This is not to say that we are more lenient with regard to frivolous abortions but only in those instances where there is a genuine threat to the mother's health. For example, we would be ?lenient? if a woman was less than forty days pregnant and she was not in danger of dying but was in danger of becoming psychotic or very depressed, because we believe, on the basis of genetic analysis, which we can now do very early, that the baby will be severely malformed and the woman has a history of depression. After forty days we would hesitate greatly to abort; we might think to treat her for her depression later, but under forty days we would permit it. So we have a leniency before forty days, but not the kind of leniency that is implied by the expression that the fetus is ?just water.?
Jewish Review: Could you be somewhat more specific as to when you would permit an abortion for psychological reasons?
Rabbi Tendler: This is decided, of course, on a case by case basis. The key concern is suicide. There are individuals, for example, who previously experienced post-partum psychosis and had a heter (rabbinic permission) to use contraception. but became pregnant because of contraceptive failure. If we have reason to believe she may attempt suicide upon parturition, we would permit abortion.
Jewish Review: How does the question of providing a heter for contraception compare to permitting abortion prior to forty days of pregnancy?
Rabbi Tendler: There is no comparison. A contraception heter is simple compared to permitting any abortion. In the latter situation you need koved rosh, real deliberation, the realization that you are treading in what we might call the shadow of murder.
Jewish Review: Could you comment upon the highly malformed or ill fetus such as one suffering from, God forbid, Tay Sacs or AIDS? Does the halakha permit abortion in any of these instances and, if not, how do we best deal with the problem of Tay Sacs and other hereditary diseases?
Jewish Review: As a psychologist, I've counselled people who have lost young children, and it is probably one of the most devastating experiences. Can the question regarding the health of the mother or parents play a roll in considering the possible abortion of a Tay Sacs child?
Rabbi Tendler: Of course. I've had case after case of women who without asking rabbinic permission have undergone amniocentesis and have discovered that they are carrying a Tay Sacs baby. After posing the initial sheailah (question) and learning that one cannot abort a Tay Sacs baby, they see a psychiatrist. After three or four weeks, the psychiatrist comes in to see the rabbi and says ?I'm losing my patient; she's going to commit suicide.? Now, assuming we have confidence in the psychiatrist, we grant permission to abort.
Jewish Review: You don't abort on the account of the fetus in any case.
Rabbi Tendler: Yes, the basic principle is that we only abort for the benefit of the mother. Death is certainly not to the benefit of the fetus.
Jewish Review: But, essentially, for the Tay Sacs problem, you would advise pre- genetic counselling?
Rabbi Tendler: Right. We can now test for over 100 genetic diseases. If you wanted to be purely rational in dating, you would go in and have yourself checked for these 100 or so genetically transmissible diseases and you would insist that your date do likewise. On the first date you would each lay down your computer cards, and if there was a match of diseases: No shiddach! No match; move on to the next one!
Jewish Review: Have you had situations where people have decided to go ahead and get married even where they were both Tay Sacs carriers?
Rabbi Tendler: Yes, and this is where a number of massive shealot (questions) arise. Surely such couples would want to have amniocentesis done with each pregnancy. However, the halakha would not permit such testing because, as I have said, it would not permit the abortion of a Tay Sacs baby. The couple is in for an enormously stressful married life. The chances of having a Tay Sacs child would be one in four in each pregnancy, and the couple might decide to have one child and if it comes out o.k., they might stop having children so as not to push their luck. This is why it is so very, very important to have the Tay Sacs test in advance.
Jewish Review: Could you clarify the Jewish view on amniocentesis?
Rabbi Tendler: With amniocentesis we have a technique which can be used and will be used. Indeed, the front page of The New York Times recently reported the frivolous use of amniocentesis for sex selection. There is really only one reason for using amniocentesis, and that is to know whether or not to abort. Because of this, the halakha cannot approve of amniocentesis except in the rarest of circumstances where there is real danger, say, of the mother becoming suicidal if she gives birth to a genetically deformed child.
Jewish Review: What is the Jewish view of requiring a woman to have a caesarean section to save the life of the fetus in the womb?
Rabbi Tendler: The courts in eleven states of the union have actually subjected a woman to a caesarean section in order to save the life of a fetus when the woman had objected to the use of a caesarean section. In what is known as the ?District of Columbia Case,? a pregnant woman who was dying of lymphoma was ordered by the court to have a caesarean in the hope of saving the baby. The woman was dying and had, perhaps, only a week or two to live, but she knew that the caesarean, though it might save the baby, would kill her. She was fully conscious and she opposed the caesarean, and said she wanted to live as long as God gave her days. The court ordered the caesarean, and it was performed. The woman died and unfortunately, the baby died as well. Now, this kind of total disregard for maternal life which was part of the Pro-life opposition in the Klein case, actually has its origins in these types of cases. In the D.C. case the judge, who happened to be Catholic, imposed his theological beliefs on the mother, ignoring the Judaeo-Biblical heritage in favor of the Christian point of view.
Jewish Review: Would there be any circumstances under which the halakha would require a woman to have a C-section, or is a caesarean enough of a threat to her life to prevent such a requirement from ever being imposed?
Rabbi Tendler: It would never be required. There are circumstances where we might suggest, even urge the woman to have a caesarean, explaining to her that the danger to her is minimal and that there is a very good likelihood that the baby would survive but, because there is a danger to her life, her right of privacy in such matters is absolute even more than itis under the United States Constitution,
Jewish Review: This raises an important question, and that is, should we, as Jews, strive to achieve a state of affairs in which American law coincides with Jewish law on matters such as abortion, or should we rather campaign for wider latitude and individual discretion within secular law, on the theory that with such latitude there would be fewer obstacles to American Jews following Jewish law on any given issue?
Rabbi Tendler: This is a very astute and important question. As you most likely know, the Lubavitcher Rebbe took an approach based on the idea that the seven Noahidic laws are so universal and so categorically imperative on every human being that we, as Jews, have a mitzvah to, so to speak, ?push? them and hence, to foster a legal system that would, for example, prevent a Gentile from committing an abortion. There is no doubt that he is 100% correct from a halakhic point of view. It is a mitzvah for the Jew to en?courage the Gentile to perform his mitzvot. It is forbidden for a Jew to mislead a non- Jew into sin. We derive this from the Torah: ?Do not place a stumbling block before the blind.? It is hard to second guess the Rebbe either halakhically or politically. This is, of course, an issue of public welfare, and the question is whether or not the public welfare is served by legislation banning abortion. Here, I think, I could see two opinions. My father-in-law, the late Rabbi Moshe Feinstein, felt very strongly that allowing government to legislate in any area of morals and ethics gives them a toe-hold in religion, and if you let them in a little bit, the government will begin toexpand its role in this area and start less - lating what is proper to teach and what isproper to do in areligious context. Now, Rabbi Feinstein had lived some 10 to 15 years under Stalin and his experience of the Russian government's total involvement in the religious life ofthe Jew was so traumatic that he held fast to the idea that we should keep the government away from religion even in those instances where its legislation might seem to be supportive of the Torah point of view. For Rabbi Feinstein, the complete separation of church and state, was absolutely necessary for the survival of any minority group. What is the right approach? I really don't know. I am a strong believer in the separation of church and state and I believe that minority religious rights are best protected if government protects the rights of each individual to practice his religion without imposing any restrictions. I don't want to be the one making a decision between the Lubavitcher Rebbe's opinion and Rabbi Feinstein's opinion, but I lean inthe direction of Rabbi Feinstein. Perhaps there is a little nepotism at work here.
Jewish Review: How then does this apply to the recent United States Supreme Court consideration of the doctrine of Roe v. Wade, the right to abortion on demand? How would you want the court to decide this issue?
Rabbi Tendler: The impending review ofthis landmark decision reawakened both the ?Pro-life? and ?Pro-choice? forces in society. Surely the Roe v. Wade decision that extended the right to privacy to include the right to abort any time before fetal viability (the end of the second trimester) should be overturned. The ?legalizing? of abortion led, de facto, to condoning abortion as morally acceptable. This was not the intent of the Supreme Court's opinion, but it was, nonetheless, the result. The primacy of maternal life as justifiable reason to abort, must be clearly stated and maintained. However, the ?frivolous? abortion for sex selection of to prevent discomfiture during a planned vacation must be declared illegal. Abortion because of rape, incest, fear of a probably genetic disease, or great familial stress must be left to individual conscience in our pluralistic society, without legal intrusion into the patient-physician relationship.