The following article refers to the Senate’s 1997 vote to ban partial birth abortion and the expected presidential veto of this ban. President Clinton did veto the ban, but it is once again a possibility, with President Bush strongly supportive of it. The House of Representatives approved the ban in August 2002, and the bill is now in the hands of the Senate. A version of this article was published in the North Jersey Jewish Standard, May 30, 1997. It is reprinted with permission of the author.
Abortion is acceptable under certain halakhic [Jewish legal] guidelines, but what about so-called partial-birth abortion? The Senate voted last week to ban the controversial procedure, known medically as “intact dilation and extraction” and usually performed after 20 weeks of pregnancy, in which a fetus is pulled partially out of the birth canal, and then aborted. The method may involve puncturing the head of the fetus and removing the brain. This is done to allow for an easier vaginal delivery of the aborted fetus.
The Senate bill did not garner enough votes to withstand an expected presidential veto, and the procedure may, therefore, continue to be legal except where specific states prohibit it.
The Union for Traditional Judaism, based in Teaneck, NJ recently issued a statement declaring that it: “opposes abortion as a means of birth control, but cannot in good conscience, allow abortion to be made the legal equivalent of murder.”
The statement, released by Rabbi Ronald D. Price, Executive Vice President of the UTJ presents the widely held view of abortion: “If the mother’s life is at risk, abortion is mandated at any time prior to the actual birth of the head of the infant. Once the fetus has come into the light of day, its life has the same valence as that of any other person and must be protected.” The statement continues, “Ironically…to outlaw late term abortions altogether could ultimately be a violation of Jewish law and thus a violation of religious freedom.”
Congress and the Rabbis
The issue of partial birth abortions has become so controversial that it resulted in a bill, proposed by Senator Thomas A. Daschle (D-SD), which sought to ban all late-term abortions. Unexpectedly, given political rhetoric, many Republican legislators opposed and many Democrats supported that bill, and it was subsequently defeated in Congress.
Those who opposed the bill felt that it provided no mechanism to ensure that it would reduce the inappropriate use of partial birth abortions, since it left complete control of when and how to abort in the hands of physicians. Another version, the bill put forth by Senator Rick Santorum (R-PA), which was passed by the House of Representatives and the Senate, bans any use of partial birth abortions to terminate a pregnancy, unless a woman’s life is clearly at stake, not simply to protect her health.
Rabbi Yosef Adler, of Congregation Rinat Yisrael in Teaneck, NJ, explained the halakhic view: “If a woman’s life is in danger, under those circumstances everyone would agree that it would be permissible to engage in that type of abortion. If the woman’s life was not in danger, here you now have a major difference amongst various halakhic authorities…The stringent view, basically that of Rav Moshe Feinstein, is that under no circumstances other than danger to the welfare of the mother is an abortion permissible…”
Adler also cited Rabbi Eliezer Yehuda Waldenberg, a prominent halakhic authority from Shaarei Zedek Hospital in Jerusalem, who takes a more lenient stand on abortion.
For instance, in the case of Tay Sachs or other serious genetic defects discovered during the pregnancy, or if the pregnancy were the result of rape, then abortion would be allowed. Waldenberg, Adler noted, “is a member of the beit din [religious high court] in Yerushalayim [Jerusalem]. There are many who follow him. He happens to be pretty lenient about how late this would be permitted as well. Once he establishes the legitimacy of an abortion, in all probability he would not find much difficulty allowing it later as well.”
But Rabbi J. David Bleich, author of scores of articles and numerous books on Jewish medical ethics, indicated that, according to Jewish law, partial birth abortions should never be an option. He said, “The procedure itself in virtually all cases…is designed to kill the baby and not to save the mother. Medically, if there is a problem in that stage of pregnancy and you want to protect the mother you do a C-section, in which case the baby can be preserved as well.”
Of the legislation, Bleich commented, “Judaism opposes abortion, and to the extent that this limits abortion, it needs to be supported.”
Another expert who has written and lectured extensively in the field is Rabbi David Feldman of the Jewish Center of Teaneck, NJ. “The point is that all abortion is brutalizing and partial birth [abortion] is more so…” said Feldman. But, he added, “it is clear in Jewish law that if the mother’s life or health are threatened, then the point at which an abortion takes place does not matter…The principle is that the mother comes first and we do everything to save her life.” He went on to describe a recent case at Hackensack Hospital and Medical Center [NJ], where the decision regarding an Orthodox woman was particularly complicated.
In this particular case a Caesarean section was not desirable. “A woman who has eight children had a problem with a hydroencephalic fetus,” Feldman related. “The head was too large for conventional birth, so they recommended a C-section. But she reasoned that a C-section would be adverse to the strength of the uterus for the next child. So here we have not a case of mother vs. child, but child vs. potential future children. And she said, ‘You must puncture the head of that hydroencephalic fetus, because his life is doomed anyway…and preclude a C-section for me, which is not dangerous to my life, but is adverse to the health and the strength of the uterus for future birth’”
The woman’s “rabbinic authorities agreed, and so the hospital complied,” said Feldman.
Advances Pose New Problems
Dr. Ronny Meier, a Bergenfield obstetrician who is also an Orthodox Jew, further explained the conundrum. “Until a couple of years ago…[fetuses] under 28 weeks were not viable.” He explained that now, with the new technologies available, it is possible to keep some babies alive even when they are born much earlier.
In fact, according to National Center for Health Care Statistics, 22-week fetuses have a 14.8 percent chance of survival and by 24 weeks that rate rises to 41 percent, although many of the “micropreemies” who survive such early births suffer from moderate to severe disabilities. According to those figures, medical science is getting so adept at keeping the smallest premature babies alive, that fetuses legally aborted at 22 to 24 weeks could have a significant chance of survival.
The best way to avoid the problems inherent in later-term abortions, said Meier, is for women to be aware of their options early on. He recommended that “there should be more education to prevent pregnancy to begin with. And if somebody gets pregnant they should go to a doctor right away and discuss…all these things very early in the pregnancy, and make a decision very early in the pregnancy and not wait until they are halfway through.”
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