Response to Alan Jotkowitz

I wish to relate to several important points noted by Dr. Jotkowitz and clarify them more fully.

In my opinion, the most plausible reading of the rabbinic sources indicates that a fetus does not have the status of a person under Jewish law. This is the view that emerges from the second option I outlined for understanding Mishnah Ohalot 7:6 (regarding a fetus whose birth threatens the mother’s life), which I believe is preferable, in that it accords both with the pericope in BT Arakhin 7a (about the execution of a pregnant woman) and with a long series of interpretations by both earlier and later halakhic authorities. Even Maimonides’ analogy of the fetus to a “pursuer,” in the case of a threat to the mother’s life, does not, I believe, necessitate attributing personhood to it, and this understanding is supported by the majority of those authorities. A very small number of later authorities, including R. Moshe (Maharam) Schick, R. Ḥaim of Volozhin and R. Moshe Feinstein, adopt the more stringent interpretation of Maimonides’ position, according to which an abortion may be performed only in the case of a threat to the mother’s life. However, the dominant position, throughout the ages, has been the lenient one, according to which the fetus is not a person, and there is consequently no sweeping biblical ban against abortion.

There has been somewhat of a reversal of this trend in the twentieth century, with an escalating tendency to adopt the stringent approach and to view the prohibition of abortion as being directly ordained by the Torah. Of course, this has implications for the situations in which abortions are permitted, but my argument goes beyond that. In the last generation, halakhic decisors have become increasingly aware of issues relating to fetal abnormalities. Their permission to abort in such cases, and in cases of danger to the woman’s health, is based on the determination that the fetus is not a person. One might think that this determination would justify abortion on other grounds as well, but, at least in published decisions (as opposed to oral responses given in individual cases), this has not been the case. For example, R. Moshe Tzuriel writes:

It is clear that it is not permitted to abort a healthy fetus when there is no danger to the mother’s life. Any other justification for abortion—financial considerations, a wish not to hinder the woman’s “career” or to preserve an attractive appearance, crowded living conditions, etc.—is unacceptable. In this article we are concerned only with the abortion of a fetus known in advance to have a serious mental or physical defect.¹

R. Tzuriel goes on to present a very lenient position, stating that the fetus does not have the status of a person and quoting a series of halakhic decisors who permit abortion even when there is no danger to the mother.²

I maintain that if the fetus is not a person, it is implausible, at least analytically, to differentiate in principle between abortion on the grounds of physical or mental defects, and abortion on the basis of needs not connected to the fetus itself. What is the categorical difference between the two cases? One possible response is that there is some guiding principle by which abortions that go against the value of “the sanctity of human life” may be distinguished from those that do not. But is that value really more challenged by the abortion of a fetus whose birth might harm the mother’s dignity or life plan than by that of a defective fetus? And what about the value of preserving a woman’s esteem and ability to manage her life in a way that conforms to her intellectual, professional and emotional needs?

Dr. Jotkowitz questions my assertion that R. Feinstein’s stringent position implies a reduction of women to their reproductive purpose, even at the cost of their health and quality of life. Yet I am convinced that demanding of a woman that she sacrifice a limb or an organ, her mental stability, her whole future, her life plan...