Had the woman whose unborn baby was fatally shot in an altercation been judged according to the Torah, she would not have been indicted for manslaughter, as she was last week by an Alabama grand jury. Although the prosecution has since dropped the charges after a public outcry, the Alabama law, which considers the fetus a person and holds the mother criminally responsible for putting it at risk, is still very much in force. In language that considers such a case, Exodus 21:22-23 tells us: “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined . . . . But if other damage ensues, the penalty shall be life for life.”
According to Jewish law, an unborn fetus is not considered a person until it separates from the mother’s womb. Until then it is not a soul, but part of the mother’s body. As such, it is not a person. Christianity gives it a soul at conception. From this springs the recent doctrine of “personhood” whereby the fetus, at any stage of gestation, is a person, endowed with rights. Under this premise, to terminate a birth is an act of murder. The abortionist is a hired killer and the mother who engaged him or her is an accomplice. This is the basis for a growing number of states in the US that have sought to criminalize fetal termination, whatever the circumstances.
Jewish law further asserts that the safety of the mother takes precedence over the viability of the fetus at any stage of pregnancy. This raises the question of whether a state, following Christian doctrine, would impinge on the religious freedom of a Jewish mother, under halacha, to terminate a pregnancy.
All of this begs the larger question of why a sectarian doctrine is being imposed on a presumably secular society. Beyond the issue of choice or no choice is the question of whether the state should privilege the dogma of one religion over another. The struggle over abortion in America is really a battle over the separation of church and state. The “Right to Life” movement is merely a first step in eroding this separation and, ultimately, depriving citizens of rights presumably guaranteed by the Constitution.
The nightmare inflicted on the Alabama woman, Marshae Jones, illustrates the twisted logic of the anti-abortion movement carried to its absurd extremes which is as cruel as it is perverse. Reflect for a moment on a society that seizes a woman suffering the trauma of losing her child, and seeks to punish her for it, thereby making her a victim twice over. The Alabama grand jury amplified this injustice by exonerating the woman who shot Marshae Jones. Scripture on the other hand, holds the party who inflicted the damage responsible for the act. But under Alabama legislation the pregnant woman in Exodus would likely have been found guilty for putting her fetus at risk by failing to remove herself from the scene of the fight. Had the prosecution succeeded and Marshae Jones been convicted, she would have faced some of the harshest penalties in the nation under Alabama’s draconian abortion laws.
We are now in the realm of an intolerance that is pitiless in its malice and medieval in its sanctions. One would think that as professed Christians, the people of Alabama would show some forbearance for a woman in such straits. Instead, they demonstrate the iron hand of a doctrinaire justice.
But the travail of Marshae Jones is the logical end-game of the anti-abortion forces. Behind the mask of saving the fetus is the satisfaction of punishing the woman. The dirty little secret of the Right-to-Life movement is that it has always been punitive.
The “rights” of a zygote take precedence over those of an actual living human being.
What happens to both mother and child after an unwanted pregnancy is not a problem for such zealots. Rather, they have coined the pejorative slogan “abortion on demand” trivializing the fraught decision to terminate a pregnancy and demeaning the millions of women who made such an agonizing decision as frivolous and selfish. As former Congressman Barney Frank observed, for the anti-abortion movement, life begins at conception and ends at birth.
The Right-to-Lifers might be interested to learn that their movement is not rooted in hoary American tradition but that it is a rather recent phenomenon. Nor was it inspired by religious zeal but was rather the result of a professional squabble between the emerging forces of “regular” physicians and irregular healers for control of women’s health, as James Mohr has ably demonstrated in “Abortion in America.”
Through the first half of the 19th century, abortion was generally condoned throughout the country. It was perfectly legal at the time of the Founding Fathers, during the Federal era, the Age of Jackson and throughout the ante-bellum period — the very years that formed the backbone of the American nation. The generally accepted practice in the country followed the English Common Law concept of “quickening” — feeling the fetus’s movement, usually after four or five months. During this period, women regularly resorted to abortion as a means of limiting their families — whether because of abusive husbands, too many children, poverty, health factors or a myriad of other reasons. It was popularly advertised through home remedies in the nation’s newspapers as well as through practitioners who widely promoted their services. The women who used it, for the most part were white, Protestant, middle-class and married.
It was only after the Civil War, particularly in the 1870s and 1880s that the rapidly professionalizing American medical societies waged a successful campaign to drive out their non-licensed competitors in a moral crusade whose spearhead was the prohibition of abortion on the grounds of protecting the safety of women from illicit procedures, assuring their place as mothers and homemakers and increasing America’s lagging native-born population. They allied with the anti-pornography militant Anthony Comstock to ban advertising of abortifacients in newspapers and magazines and lobbied legislatures state by state so that by 1900 abortion was illegal throughout the country. Oddly, the churches were slow to come aboard — the Catholic Church didn’t get around to it until 1869 — leaving decisions on abortion to their congregants.
What made abortion dangerous during this period was not the abortion itself, but that women, deprived of access to competent physicians, had to resort to it in back-alleys or at their own hands. A procedure undertaken under qualified medical conditions was a safe one. The incidence of abortion related deaths after Roe v. Wade became law went down from a significant number to a minimal one. Prior to Roe, women took these dangerous risks determined, for their own pressing reasons, to terminate their pregnancy. In many instances, this led to the death of the mother leaving her own children dispersed and despairing. The human tragedies in the century preceding Roe v. Wade, as depicted in Patricia Miller’s riveting chronicle “The Worst of Times,” provide a cautionary tale of what we can expect if the Supreme Court accedes to the Right-to-Lifers and overturns Roe.
Ironically, the medical societies who once fought to ban abortion are now at the forefront of protecting women’s reproductive rights as a health issue. Virtually every major western democracy — including Israel — has some form of legal abortion, certainly in the first trimester of birth, which is roughly equivalent to the former “quickening” standard widely practiced in America before the proscriptions of the 1880s.
“Right to Life” is a recent term, as is the movement. Its concern is with the potential of the unborn — a fertilized ovum that in the first trimester is neither sentient nor aware — rather than with the needs of the born, the woman whose life and future are very much in the balance in deciding the fate of her issue. If the purpose of mating is procreation, as religious doctrine holds, then terminating a pregnancy is thwarting God’s will. This is meaningful as an article of faith, but has no place in the legal code of a secular democratic society. If the term “freedom,” means anything, it should mean the right of a woman to make her own decision in this, the most intimate aspect of her life.