Hassagot השגות

Some thoughts about Abortion

The Woman Mourns the Loss
A woman who miscarries feels the loss of ‘her baby.’ She grieves. Several Jewish texts relevant to abortion do not express this grief. Of course, that is because these texts address the status of the fetus. At the very same time, such grief is naturally a factor in thinking about abortion, certainly in thinking about abortion beyond the point of the viability of the fetus.

Unless one has stood in her place
A traditional Jewish value is not to judge another if one has not stood in her place. It is easy to be judgmental and say, “If I had been in that situation, I would never have elected to have an abortion” or “If I had been in that situation, I would certainly have elected to have an abortion.”

We all pray that children should be conceived in love, lovingly borne, safely birthed, and raised with care and affection.

- H. A. Massig

Is there a “Jewish law” view?

It seems misleading to me to speak of “the Jewish law approach” or “the view of Jewish law” when learned and ethically sensitive people may come to different conclusions in the same case (as one may see in the discussion of the Tay-Sachs baby in the Tzitz Eliezer and Iggros Moshe). As one who likes to “keep it oral,” I prefer not to even speak of “Jewish law” as if it were an entity unto its own. The more I learn, the more I appreciate the view that legal codes misstate the Talmudic tradition!--with all due respect to Maimonides, the codifier par excellence.

-- H. A. Massig

Keeping it Oral

I have been told that there have been cases of Chasidic rabbis permitting abortion in cases where amniocentesis has shown that the fetus has Tay-Sachs. Such rabbis have given oral, not written, permission. I am certain that this is in large part due to political concerns: When even renowned rabbinic scholars say things that are unpopular, they stand to forfeit their reputation. Yet, I think there is a positive lesson here as well. Ethical dilemmas do not lend themselves to codification. Frequently, an ethical dilemma has unique dimensions that are ill-suited to legislation and certainly to codification. Considering how eager traditional Jews are to codify precedents, it is often the better part of wisdom to keep it oral. If one does codify, people (rabbis included) may start generalizing from past decision to present dilemma.

- H. A. Massig

Law is not identical to Ethics

A particular law may reflect ethical values, and a legal system may reflect a system of ethics, but that does not mean that laws are coterminous with ethical norms.
This point is expressed in several classic texts from our Jewish tradition. For example, Devarim 6:18 in context: “Be sure to keep the commandments, decrees, and laws that the L-rd your G-d has enjoined upon you. Do what is right and good in the sight of the L-rd, that it may go well with you and that you may be able to possess the good land that the L-rd your G-d promised on oath to your fathers” (6:17-18). The phrase “right and good” (הישר והטוב/hayashar vehatov) has often been taken to refer to behavior that goes beyond keeping “commandments, decrees, and laws.” The rabbis of the Talmud even derive new laws in an effort to capture “right and good,” finding rights or limitations of rights that are not explicit (as one can see in rabbinic discussions of property sales, for example). The point, I think, is the effort to capture “right and good,” as opposed to the particular legal application of the
“right and good.” I believe that the rabbis understood that one can be a jerk within the letter of the law. The Ramban (Nachmanides, 13th c. Spain ) wrote as much in his comment to Vayikra 19:2 “You shall be holy, for I, the L-rd your G-d, am holy.” Just as the letter of the law does not exhaust the category of the holy, so it does not exhaust the category of the ethical.

- H. A. Massig