Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature

3 | Halakhic Rulings on Abortion

chapter three Halakhic Rulings on Abortion a historical survey from the rabbinic to the modern period Introduction: Liberal and Feminist Views of Abortion The mantle of feminist consensus with regard to abortion conceals an array of conflicts over the nature of women, the value of children, the role of the family, and the social significance of sexual relations between men and women. At times, a radical feminist position regarding power relationships between men and women engenders a conservative position on abortion. We thus find ‘‘pro-life’’ feminists who oppose abortion on the grounds that the freedom to abort only increases women’s sexual availability to men, for it frees men from the need take responsibility for the consequences of their actions.∞ The various liberal positions on abortion may be summed up as follows: 1. The fetus is not a ‘‘person’’ until it is born. Those who take this view distinguish between a ‘‘person’’ and a ‘‘human entity.’’ Positing a discontinuity between biological-physiological qualities and those that are clearly 112 sex without procreation human, they maintain it is only the latter that transform a purely biological entity into a full person, possessing defined characteristics and endowed with moral rights. The fetus, according to this view, is a ‘‘human entity’’ in the biological sense alone; it belongs to the human species (Homo sapiens), but it bears no moral rights.≤ 2. The fetus acquires human characteristics during pregnancy. Adherents of this position believe that once a specified point in the pregnancy has been reached, abortion will be permitted in some cases but forbidden in others; however, they debate the crucial point in the pregnancy at which the fetus begins to acquire human characteristics and abortion becomes morally problematic.≥ Within this group, Ronald Dworkin is a bit of an outlier, for he does not analyze the issue of abortion from the perspective of whether the fetus enjoys the rights of personhood.∂ Nevertheless, he does not justify abortion at any price and is therefore consistent with other intermediate positions. In Dworkin’s view, the debate over abortion is actually a debate over how to protect the sanctity of life.∑ Indeed, Dworkin portrays the dispute between liberals and conservatives as stemming from the di√erent weights the two sides assign to the ‘‘natural’’ and ‘‘human’’ components of a person’s life. Conservatives believe that the natural component of human life, that is, the gift of life itself, is more important than anything a human being may do with his life, however significant his accomplishments. As a result, conservatives tend to think that killing a fetus strikes a mortal blow at the principle of life’s sanctity, unrelated to the nature and quality of that fetus’s future life. Liberals, on the other hand, assign more weight to the human component. They regard life as the outcome of human choice, decisions, and undertakings, and therefore are more likely to permit abortion: It may be more frustrating of life’s miracle when an adult’s ambitions, talents, training and expectations are wasted because of an unforeseen and unwanted pregnancy than when a fetus dies before any significant investment of that kind has been made.∏ Dworkin’s analysis bears on a crucial question: does abortion entail some sort of desecration of human life? His response, in principle, is negative. Abortion, in cases where it is warranted, does not detract from the substan- halakhic rulings on abortion 113 tive value of human life; on the contrary, it constitutes an act of respect for human, especially female, freedom and autonomy. That is so because reverence for human life means honoring the human qualities and values that make life so unique and sanctified. This is not to say that adherents of the liberal position will permit abortion in every case; but in cases of conflict, the woman’s rights should prevail over those of the fetus, which has not yet been the recipient of much human investment. 3. Even if the fetus is a ‘‘person,’’ aborting it is permitted. The philosopher most identified with this position is Judith Thomson.π I cannot treat her arguments in detail, but they may be summed up as asserting that the right to life does not encompass the right to use another person’s body. The extent of the fetus’s ‘‘personhood’’ is not the sole factor that is pertinent to the question of abortion...