By Rabbi Yair Hoffman
About a century and a half ago, the world of literature produced a children’s book written by Lewis Carroll, where a young girl named Alice falls into another world where virtually everything is distorted.
Last Friday, the Supreme Court ruled on Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade. The media assailed the ruling as an attack on women, and something morally repulsive.
In the United States, people generally identify as one of three categories: pro-choice, pro-life, and IDRCSM (I Don’t Really Care So Much). In order to get some moral clarity on the matter, it might behoove us to get definitions of five terms and then ask ourselves some moral questions.
Pedicide. In ancient societies it was common practice for parents to be allowed to kill their children. According to Black’s Law Dictionary, under Roman Law, patria potestas, the right of a father to kill his own children, was protected. In the United States, many states have laws that include child murder as an aggravating factor that may make a murder punishable by the death penalty, but the victim’s age under which the crime is a capital crime varies between states. In 2011, Texas raised this age from six to ten.
Child Euthanasia. With parental permission, a child is put to death because of a hopeless prognosis or significant pain. This is a legal right in both the Netherlands (passed in 2005) and Belgium (passed in 2014). It is currently illegal in the United States. It is against Torah law as well.
Infanticide. The intentional killing of infants. This was a rather widespread practice throughout history and was used either to dispose of unwanted children or to prevent resources being spent on weak or disabled children. Infanticide is now widely illegal, but in some places the practice is tolerated, or the prohibition is not strictly enforced, or the punishment is less than that of killing an adult. In England and Wales, the Infanticide Act 1938 defines it as less than murder if the victim is under 12 months, and the punishment is one to five years in jail. This “redefinition” is also against Torah law.
Neonaticide. The deliberate act of a parent murdering his or her child during the first 24 hours of life. According to the New York Times, “Every year, hundreds of women commit neonaticide: they kill their newborns or let them die. Most neonaticides remain undiscovered.”
Termination of Pregnancy. A euphemism for the deliberate act of killing a fetus inside the womb of the mother. Other names for this are feticide and abortion. In 1973, the act was made into a “constitutional right” by activists and the Supreme Court ruled as such in Roe v. Wade. The ruling made it illegal for a state to democratically pass a law that forbade feticide. Jewish law forbids feticide unless the mother’s life is in danger.
Now that we have the definitions in place, let’s proceed to seven moral questions:
1. Is there such a thing as a lex naturalis, a system of law based on universal values intrinsic to human nature that can be deduced and applied independently of the enacted laws of a state or society?
2. Is there such a thing as an inherent right not to be killed—conferred not by act of legislation but by “G-d, nature, or reason?” At the Eichmann trial in Israel, this idea was the basis against the argument that everything the Nazis had done was technically legal. It was also the very basis of this country’s Declaration of Independence in 1776. It would seem to be a no-brainer that at least one natural law would forbid the killing of another human being—especially an entirely innocent one.
3. Who defines the parameters of a human being? Is it the supreme legal entity of society or is it relegated to G-d, nature, or reason?
4. Can a society or the supreme legal entity of a country define life as beginning at adulthood, thereby allowing pedicide and patria potestas, the right of a father to kill his own children?
5. Can a society or the supreme legal entity of a country define full life as beginning at over twelve months of age, and hence only partial punishment for killing a child less than twelve months old?
6. Can a society or the supreme legal entity of a country define “life” as beginning only when the baby has exited the birth canal and thus allow for a fatal injection into the beating heart of that “non-life” up until the moment of exit?
7. May a supreme legal entity rule that a state must ignore “democracy” in order to ensure the right of a parent to terminate a fetus? This is what happened in Roe v. Wade. The court suppressed the ability of states to democratically pass laws limiting a parent’s right to forbid such fatal injections. In Dobbs v. Jackson Women’s Health Organization, the court ruled that it is legal for states to decide the issue by democratic vote.
It is this author’s view that an honest examination of these questions will allow people to achieve greater moral clarity. For questions #1 and #2, is there a lex naturalis? If so, then how can we only apply it to a woman’s right to choose and not apply it to the snuffing out of a beating heart? For question #3, who defines the parameters? Is it not at least a doubt, a safek in rabbinic terminology? And if it is the possible killing of human life, why not deliver via C-section and incubate the baby, letting that baby live? For #4 through #6, if one believes that there is no lex naturalis then why not? And for #7, is the right to inject poison into a beating heart that a woman does not wish to carry to full term so fundamental that it can trump democracy?
No one wants to limit a woman’s right to make essential healthcare decisions. But that is not what is happening here. What is happening is a ruling about states being allowed to pass decisions, by democratic vote, as to what defines “non-life” or “life.” In light of the ruling, the Reform Movement of North America issued a statement condemning the Supreme Court’s decision. They accused the Court of stripping “women and others who can become pregnant of the fundamental right to make essential healthcare decisions free of governmental interference.” But this, essentially, is an outright lie.
By the same token, there is an Orthodox Jewish organization that issued a statement that it refused to “either mourn or celebrate” the ruling, criticizing both abortion on demand and “absolute bans on abortion.” This, too, unfortunately, is an untruth, as the court ruling issued no such ban. It merely stated that there is no right to an abortion that trumps the democratic process to which states are entitled.
Of late, there has been discussion and debate as to how Torah Jews should operate in the context of the wider community. Should they take the role of Noah’s Ark or the role of a lighthouse? In other words, should we voice our opinions of the moral clarity that Torah offers to society at large, when it is done respectfully and with treating others properly? Or should we give up on society around us and enter a metaphoric Noah’s Ark where we ignore the morality of the society around us?
If someone reading this fundamentally disagrees, the author asks that reader to at least think about the points raised. We are put in this world to help other people. This is called “chesed.” We should not, however, do a chesed for one party at the expense of the life of another party. Nor should we redefine the parameters of what constitutes “life” in order to perform that chesed.
The author can be reached at email@example.com.