President Bush recently signed a ban on so-called “partial birth abortions” into law. Enactment of this legislation marks a great victory for the religious right, and such passage surely reflects — as many commentators have pointed out — how successful the proponents of the ban have been in their campaign to restrict the scope of Roe v. Wade.
While the constitutionality of this legislation is immediately and rightfully being challenged in several jurisdictions, the very name assigned to this law indicates that religious fundamentalists have succeeded — for the time being — in defining the religious-moral framework within which the argument over reproductive rights for women in this country will take place.
I am sorry about this, and feel compelled to raise my voice — I refuse to cede the religious-moral high ground on this matter to the religious right. As a rabbi, I would point out that another religious approach to this issue is possible, and I believe this approach should be aired in the public square so that the religious-ethical framework within which this debate is carried on might be reset. After all, Judaism possesses religious-moral teachings that can be used to frame a different ethical assessment of this law.
To be sure, Jewish religious tradition surely accords the fetus status as potential life. However, Judaism does not regard the status attached to the fetus as potential life as morally equivalent to the condition enjoyed by the mother as actual life. To accord the fetus equal moral valence with that of the mother is from a Jewish standpoint a religious-moral error. Judaism countenances therapeutic abortion and the Mishnah — the most venerable code of Jewish law compiled in the first two centuries of the Common Era — states explicitly that “the life of the mother takes precedence over the life of the fetus.” As a result, rabbis throughout history have viewed abortion as morally required in instances where the health of the mother is in jeopardy.
The persons who fashioned the current law fail to affirm this position, and I fail to see why they should enjoy a moral monopoly on this issue. Indeed, their refusal to attach any provision that would grant priority to the life of the mother over the being of the fetus even in instances where the life and health of the mother is at risk causes me as a person of faith to condemn the law as wrong from a moral as well as legal perspective. This failure to allow for exceptions even in cases where the life of the woman is endangered represents an unconscionable attack upon women and reveals the true intentions the framers of this law possess concerning women and reproductive rights in this country.
This law as it has been enacted unquestionably diminishes the inviolable status and worth that ought to be granted women as moral agents created in the image of God. Regardless of the outcomes of the challenges to this law in the courts, the parameters of our public debate regarding abortion ought to be reestablished.
Our evaluation of the current law ought to be informed by religious teachings affirming the full personhood of women. Only then can the degradation threatening the sanctity of life be avoided.
David Ellenson is president of Hebrew Union College-Jewish Institute of Religion.