To write about abortion these days is a sign either of courage or madness, and perhaps a bit of both. Nonetheless, to ignore abortion given the distressing and volatile space it occupies in contemporary political discourse strikes me as negligent, and it’s not as if Torah doesn’t have a thing or two to say about the matter. As with so many tough issues that require thoughtful reflection, Torah urges us to use one of God’s greatest gifts to us: our reason. Let’s indulge both our courage and our madness in thinking however briefly about this troubling debate within the nation.
To begin with, a clarification: The abortion debate in our nation will be addressed through the courts, a dauting task even for so august an institution as the American judicial system since abortion is so much a tangle of ethics, faith, biology, and identity. My approach will focus heavily on the moral, not legal dimensions of abortion. The legal discussion is best left to lawyers and the courts. Secondly, let’s agree to reject those simple-minded labels: pro-choice and pro-life. Quick and dirty political tags are designed to create adversity, not clarity, as if pro-lifers reject choice and pro-choicers reject life. I wish people were that neatly categorized, but they aren’t.
Many Jews believe that the thrust of Torah, because it allows for abortion, somehow is protective of a woman’s right to choose. Only half of this perception is true. Torah does allow for abortion under certain circumstances, but the license it gives to abortion is not based on a woman’s autonomous self. The Torah permits abortion based on its perception that a fetus is not a human being. A fetus would be regarded as something more akin to a growth, or an organ like any other organ in female anatomy, and as such, its removal can in no way constitute murder. Moreover, if given the choice between saving the life of a viable human being and an organ that poses some sort of threat to that human being, the Torah is fairly certain that the mother’s life takes precedence.
In Roe v. Wade (1973), the Supreme Court struck down a Texas law, and thus all such laws, that prohibited abortion under any circumstances. The decision was largely based on the presumption of a constitutional right to privacy which would cover a woman’s decision to end her own pregnancy, again under certain circumstances. What made the decision controversial was a serious question about whether the US Constitution actually did provide for a right to privacy, and even if it did, whether such a right would cover abortion. Moreover, the decision provoked protest and outrage since not everyone sees the fetus as would the Torah, as a mere growth or organ of the mother. If the fetus is a human being, then ending its life is murder, and no right to privacy can possibly used to condone murder.
The story goes that Supreme Court Justice Hugo Black (1886-1971) was given to removing his $0.25 copy of the Constitution from his back pocket, waving it about and declaring something to the effect of—I searched through this document and can’t find any provision for a right to privacy. Most legal scholars would agree that there is no explicit clause to that effect, but might also argue that the Constitution does provide for certain protections that seem to emanate from a concern for privacy. Leaving that legal argument behind, it seems to me incongruous that a document serving as the basis for American civil liberties could not in some way be understood as protective of privacy, but even that is a far cry from a clear and unequivocal right to privacy. You can see why Roe rests on contested, and thus shaky legal grounds.
But today, in 2019, Roe is challenged in another way that the justices in 1973 could not have anticipated. Attitudes toward pregnancy have adjusted in line with medical advances that have made pregnancy and birth much safer. Mothers are exposed to the fetus’ heartbeat, sex, a photo of the fetus in situ, and the potential for any birth defects. Twenty-first century parents may hang that sonogram photo of the fetus on the refrigerator, attend a baby shower, arrange for a Gender Reveal party at which the baby’s gender is announced, and even create a Facebook page for the anticipated arrival. They may even name the fetus before its birth. Parents and health care providers have conferred, most likely inadvertently, a kind of personhood on the fetus that it heretofore did not have, and when popular perception of a fetus evolves from the mysteries surrounding gestation to an entity treated as a person with a specific identity, some future Supreme Court just might champion a State’s interest or obligation to protect life over and above any right to privacy that Roe attempted to guarantee.
The rate of abortions seem to be diminishing, according to those who monitor these surgeries. That’s a good thing. I wouldn’t wish any woman the trauma of having to terminate a pregnancy. On the other hand, a legal system that would force women to bear children they do not want would create a host of social problems that would not bode well for babies, mothers, parents, politicians, the nation, and a host of others we could probably enumerate without end. But as you can see, there are good reasons why the abortion question remains as divisive and volatile today as it was 50 year ago. In the end, I doubt that the Torah could unequivocally conclude that abortion should be either legal or illegal. As with so many ethical questions, the genius of Torah assures us that the justice of any one abortion will always be bathed in the shifting light and shadows of the reasons why it is sought. And to wade through that morass of factors, circumstances, emotions, apprehensions, etc., will take a Solomon, not a Supreme Court.