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How Does A Jew Follow Texas’s New Abortion Law?

Last week, Texas approved a new law that will require abortion providers to either bury or cremate and scatter fetal remains. The law, proposed in July at the behest of Governor Greg Abbott, will change the longstanding medical practice of disposing of fetal remains in a sanitary landfill along with other biological waste. The rule, which will go into effect on December 19th, mandates burial or cremation for fetal remains regardless of gestation period.

Governor Abbott, in an email published by The Texas Tribune, stated “I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.” The law apparently removes the distinction between “human and fetal remains,” treating both, at least in practice, as fully human remains.

Critics of the law, including NARAL Pro-Choice Texas and the Texas Medical Association, argue that the new rules constitute a blatant attempt to restrict access to abortion and stigmatize women who choose to have the procedure. As Emily Crockett at Vox points out, the law, which is the first one in the country to mandate burial or cremation for fetal remains, is likely to dramatically increase the cost of an abortion.

The news of the law had me wondering, what is the larger Jewish discussion around abortion?

I spoke to Rabbi Scott Perlo of Washington D.C.‘s Sixth and I Synagogue over the phone to get a better idea of how the Jewish community perceives abortion. According to Rabbi Perlo, the “Jewish abortion conversation seems to be significantly healthier than the abortion conversation that afflicts America… We don’t have the same kind of absolutist understanding of what a fetus or a baby is.” For starters, in Jewish law life does not begin at conception. A fetus is not considered a person until it has been begun to emerge from the mother’s body, and is considered to be “mere fluid” until 40 days after conception – though, Rabbi Perlo clarified that the fetus is still “considered to be an important part of the mother.”

Much of the current Jewish understanding on abortion and the status of a fetus stems from interpretations of two passages in the book of Exodus that outline the penalties for striking a pregnant woman. Rashi, one of Judaism’s most famous biblical interpreters, understands the passage to mean that if the woman is struck and the result is a miscarriage, then a monetary penalty will be imposed. If the woman is killed however, then “a life for a life” kicks in. Rabbis have widely interpreted this passage, and Rashi’s response, to mean that a fetus is not afforded the same status as a living person – hence the discrepancy in penalty.

As with any Jewish law, there are rabbinic disagreements as to when abortion is permitted, but in general, abortion is permitted only when it is certain or highly probable that carrying the fetus to term or childbirth would constitute a direct threat to the life of the mother. It is interesting to note that both physical and psychological factors can come into play regarding the well being of a potential mother, however the debate on what psychological factors would constitute a substantial threat is far less settled than the debate surrounding physical factors.

All abortions, regardless of reason or term, are subject to the Texas law, so the question naturally arises for those interested in the Jewish rules on abortion: how would a Jewish burial of an aborted fetus look?

Well, once again, it depends who you ask. Rabbi Perlo informed me that there is still a deep halakhic discussion regarding whether one has to bury a miscarriage or abortion, though the general consensus appears to come down against mandated burial.

In Jewish law, the rites of mourning are only applicable after the first 30 days of life. The most likely reason behind the rule is that, back in biblical times, infant mortality rates were high and viability could not be reasonably assured until after the first month of life. Therefore, the full Jewish burial ceremony, which requires ritual washing and a guard for the casket among other things, is not required for fetuses (It is also, in many cases, logistically impossible).

Though the full ceremony is not required, Jewish law does require the burial of “a formed fetus from the end of the fifth month” according to a paper published by the Rabbinical Assembly. The fetus is supposed to be wrapped in a white sheet, placed in a kosher coffin, and buried in a Jewish cemetery – but that is where the ritual stops. (These requirements were originally just for stillbirths, but the Assembly believes that they ought to extend to third trimester abortions as well.) Some strains of thought say that this ceremony (or something like it) may be carried out for fetuses of less than five months for the comfort of the parents, while others maintain that to acknowledge a fetus of less than five months with any kind of ritual burial or mourning is forbidden by law.

So in terms of the Texas law, mandated burial is not necessarily in conflict or agreement with Jewish law. In the absence of any ritual, it’s just a Judaically neutral imposition upon abortion providers. If, however, a Jewish Texan would like to perform the truncated fetal burial ritual, it is well within the bounds of Jewish law for them to do so.

Jake Romm is the Forward’s culture intern. Contact him at [email protected] or on Twitter, @JakeRomm

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