Virtual Talmud

Judaism is a pro-life religion. It sees all life as precious, including the potential life represented in the fetus. The stirring of life is a miracle, a gift from God. All things being equal, a fetus should be brought to term and welcomed into life.

However, what happens when the fetus poses a threat to the life or health of its mother? Jewish law is unambiguous: The mother’s life and health take precedence. Why? The medieval Jewish sage Rashi (1040-1105) explains that the fetus is not a person. According to Jewish law, personhood begins at birth (defined as when the head or majority of the body exits the mother into the air) and not before. When their needs conflict, the actual or independent life takes precedence over the potential life.

Maimonides offers a different explanation: the fetus is a rodef, a pursuer, endangering the mother, and thus it must be stopped by force, if necessary, even at the cost of its “life.”

Both views are helpful in light of the current debate over abortion, and by extension, the nomination of Judge Alito to the Supreme Court.

Rashi reminds us that different religions define human life differently. The Catholic Church and Christian Right, who are driving legislative efforts to restrict abortion, ultimately want abortion outlawed, because they define human life as beginning with conception. Protecting choice, then, is part of protecting freedom of religion and the separation of church and state. That is why Judaism’s Conservative Movement, while not pro-abortion, is pro-choice, and is a member of the Religious Coalition for Reproductive Choice.

Judge Alito’s former clerk, Jeffrey Wasserstein, argued in a recent op-ed piece that Jews have nothing to worry about from Alito’s stand on freedom of religion. That may or may not be so. However, we have plenty to worry about regarding whether he will protect a woman’s life and health.

Maimonides’ position reminds us that the lives and health of real woman are at stake in the abortion debate.

Take the small percentage of women who learn late in their pregnancy that their fetuses have severe hydrocephaly (swelling of the brain). Such a fetus will not survive, and the woman cannot survive giving birth because the fetal head is too large. The safest procedure is an intact d and x (inaccurately labeled a “partial-birth abortion”). However, unless the law banning this procedure is struck down by the Supreme Court, these women face the much more dangerous hysterotomy, requiring a larger incision than a caesarean and carrying such a high morbidity rate that the procedure was largely dropped once the intact d and x was developed. If these women survive this outmoded surgery, they face the likelihood of never being able to carry another pregnancy. because of the danger of uterine rupture.

Maimonides, as a doctor and a rabbi, would rule that the health of these women takes precedence in this tragic situation. Judge Alito probably would not agree, based upon his dissenting opinion on Planned Parenthood v. Casey, where he argued that the needs of a small minority of women are insufficient to be considered “undue hardship” in terms of the constitutional protections limiting restrictions on abortion. (The Washington Post‘s Nov. 7, 2005, editorial provides a clear explanation of the disturbing meaning of this opinion.)

Our concerns are even greater in the case of parental notification (also currently before the Supreme Court in Ayotte v. Planned Parenthood of Northern New England, a challenge to New Hampshire’s parental notification law). In the best of all situations, we would want a minor under 18 to inform her parents. However, what happens to the young woman from an abusive home? What if she is having a medical emergency?

If every human life is really precious, then shouldn’t the lives of these women (and the married women in abusive relationships excluded by Alito in the Casey case) be equally precious regardless of aggregate numbers involved? Whose right to life are we talking about here?

The Supreme Court will be deciding the legality of legislation that endangers real women’s right to life. Do we want that decision made by someone who does not value the right to life of every individual woman? I sure don’t.

The question is not only whether or not Judge Alito would overturn Roe v. Wade (as important a question as that is), but also whether, with him on the bench, the court will remain the last recourse and protection against the abuse of legislative or executive power and the tyranny of the majority of the minority.

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