Abortion – It’s Personal

Almost fifteen years ago, shortly after we arrived in San Jose with our two children, Dana became pregnant.  We were overjoyed, and excited to expand our family in our new home.

At the 12 week ultrasound, we learned that we were going to have a boy.  But there were indications that something might be wrong.  We were told to return for a follow-up ultrasound two weeks later. Perhaps the issue would resolve itself.

Sadly, the abnormalities were even more pronounced. Without going into details, our baby, if it survived the pregnancy, would have numerous physical defects requiring multiple surgeries to survive. It would likely never leave the hospital.

Furthermore, the placenta was growing through the wall of Dana’s uterus and into her bladder in a way that put her at increasing risk for permanent physical disability or even death.

As a husband and father, I was there to love and support my wife. Whatever she wanted to do in this situation, I would be by her side. Dana could not imagine risking our two beautiful, healthy children growing up without their mother. With dread, we started exploring options for termination of the pregnancy.

Who did Dana turn to for support in making her decision? To me, of course. To her parents and sisters. To her doctors.

The procedure that she needed was highly specialized, one that most OB-GYN’s did not have the experience or knowledge to perform.

Fortunately, Dana was able to be seen by an experienced team at UCSF Medical Center who were kind, compassionate, and understanding.

At sixteen weeks, the initial goal was for Dana to undergo an abortion and keep her uterus. The abortion took place on a Wednesday. For the next two days, she remained in critical care with internal bleeding that would not stop. She received multiple blood transfusions.

By Friday, it was clear that Dana needed surgery to save her life, and so she underwent a complicated, high risk hysterectomy. Thank God it was successful. She remained in the hospital for another week until she was finally strong enough to come home.

Dana is still in touch with the doctor who saved her life. That doctor and her team were only able to gain those specialized skills because abortion was legal. Due to the passage of Roe v. Wade in 1973, they were able to receive training, publish and share journal articles, learn from one another, and develop expertise in performing routine medical and surgical abortions, as well as complicated cases like Dana’s. None of this could happen when abortion was illegal.

Abortion bans that only provide exceptions to save the life of the mother do not produce doctors with the skills required for Dana’s surgery. If abortion had been illegal, there would have been no medical team with the necessary skill, and my children might have grown up without their mother.

I know this from my late father in law, Dr. Gary Romalis, z”l, who did his medical internship at Cook County Hospital in Chicago in 1962. In those days, there was no training in providing abortions. Instead, he learned the hard way. In his own words:

The first month of my internship was spent on Ward 41, the septic obstetrics ward. Yes, it’s hard to believe now, but in those days, they had one ward dedicated exclusively to septic complications of pregnancy.

About 90% of the patients were there with complications of septic abortion. The ward had about 40 beds, in addition to extra beds which lined the halls. Each day we admitted between 10-30 septic abortion patients. We had about one death a month, usually from septic shock associated with hemorrhage.

I will never forget the 17-year-old girl lying on a stretcher with 6 feet of small bowel protruding from her vagina. She survived. 

When he opened his Vancouver practice in 1972, in addition to caring for pregnant women and delivering babies, Gary and his partners also dedicated themselves to make sure that “a woman should be able to decide for herself if and when to have a baby.” He was a pioneer in developing safe abortion techniques and training future generations of physicians. There is a direct line connecting Gary’s life’s work and his daughter’s life-saving surgery.

We received a lot of support from the community, both in terms of the space we requested, as well as the physical and emotional support that we needed. One of the surprises were the many women who would come up to Dana, often in tears, to share their own stories of a devastating pregnancy loss, or of a life-saving abortion.

I suspect that many people in this room, probably most, have their own stories. Abortion is a deeply personal issue.

Roe argued that a right to privacy, while not explicitly contained within the Constitution, can be derived from the first, fourth, ninth, and fourteenth Amendments. In his decision, Justice Blackmun ruled that the Constitution protected “zones of privacy” which encompassed areas like contraception, marriage, child rearing, and abortion.

That rationale is what has now been struck down by the decision written by Justice Alito. The conclusion of the new decision states:

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives,

In other words, states are free to restrict abortion without any interference from the federal government.

With the Supreme Court’s overturning of Roe v. Wade and Planned Parenthood v. Casey, millions of women living in dozens of states will lose the ability to make this personal choice, including 13 states with “trigger laws” that have already gone into effect.

I am not a constitutional scholar, so I am not really qualified to speak to the legal arguments. But I do know, from experience, that this decision will restrict the choices of millions of people in the most personal way imaginable, and will result in women dying.

The question of whether to terminate a pregnancy involves issues of belief, culture, religion, family circumstances, finances, and so much more. During the time in which Dana and I were dealing with our situation, we talked about how much risk to her life we were prepared to accept to go ahead with the pregnancy. We considered our ability to care for our children if Dana became disabled. We talked about whether it was right to bring a child into the world who would suffer for its entire short life, whether we would be able to care for him, and how it would impact our other children. We talked about Jewish law and values. 

I am so grateful that we had the freedom to make our decision.

Coming out of the Jewish tradition, the idea of the government, at any level, getting so intimately involved in individuals’ personal lives is deeply troubling.

Abortion is a topic which Jewish law has dealt with for thousands of years. Unfortunately, we do not have the women’s voices. But we do have the legal and religious writings of men on the topic. Like so much in Judaism, abortion is a nuanced issue.

First of all, we must state unequivocally that Judaism is a pro-natalist religion. P’ru ur’vu – “be fruitful and multiply,” is a mitzvah. Judaism is unabashedly pro-child. In the Talmud, the Sage Reish Lakish declares, “The world exists only because of the breath of children.”

As an exemplification of this, the State of Israel is the “world capital” of in vitro fertilization. The state fully funds IVF treatments for up to two “take home babies” for every woman up to the age of 45. Four percent of Israeli children today are born by IVF, compared to one percent in the US. This right extends to all citizens: Jew and Arab, straight and gay, secular and religious, married and single.

Without a doubt, Judaism has a strong bias towards having children. But it also recognizes that having children can be difficult and dangerous. The Mishnah, nearly two thousand years ago, codified the law on abortion:

If a woman is having difficulty giving birth, the child must be cut in her womb and brought out limb by limb, for her life takes precedence over its life. If the greater part of the child has already come forth, he must not be touched, because one life must not be taken to save another.

Mishnah Ohalot 7:6

The Mishnah is dealing with a situation in which there are complications during a delivery, which occurred frequently until modern times. It states that an abortion is not just optional, but mandatory in order to save the mother’s life. This is true up until the majority of the child has exited the womb.

The medieval commentator Rashi explains why the mother’s life takes precedence over the fetus. This is what he says:

Until the child has emerged into the world, it is not considered a person (lav nefesh hu), and it is permitted to destroy it to save the mother’s life. However, once the head has emerged, it is considered as born, and one may not harm it, for one life may not be taken to save another.

The question “When does life begin?” is not the correct question. The correct question is “When does personhood begin?” Rashi’s answer is unambiguous. It begins when the head has emerged from the mother. Up until that point, lav nefesh hu – “it is not a person.”

Over the years, Rabbis faced cases in which a woman inquired as to the permissibility of abortion in her particular situation. As we would expect, there have been a range of approaches on the topic. Some Rabbis restricted abortion to only the clearest cases of explicit physical danger. Others had a broader interpretation of what constitutes a threat to a mother’s life.

The former Chief Sephardi Rabbi of Israel Rabbi Ben-Zion Meir Hai ben Uziel, had a particularly expansive understanding of what would be permitted.

It is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent her embarrassment, then we have precedent and authority to permit it.

Mishpetei Uziel vol. Ill, H.M. no. 47; See Feldman, pp. 289-291

Rabbi Uziel does not differentiate between life-threatening situations and those that are detrimental to health. He allows for mental anguish, a sense of shame, fear of disgrace, or even a reason such as fear of disfigurement to be valid reasons for an abortion under Jewish law, if that is how the woman feels.

To summarize the Jewish position: Judaism is pro child. It discourages abortion except in cases in which there is a threat to the mother. There are a range of approaches taken by religious authorities over the centuries, some more expansive and others more narrow. A fetus does not become a person until its head emerges from the womb.

The Committee on Jewish Laws and Standards, which determines halakhah for the Conservative movement, in 1983 affirmed the right to an abortion in cases in which the ‘continuation of a pregnancy might cause severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective.’

In light of this, the Rabbinical Assembly of the Conservative Movement has strongly supported the halakhic necessity of access to abortion, based on biblical and rabbinical sources, as well as legal decisions. It has opposed efforts to limit access to abortion or stifle reproductive freedom.

In a statement yesterday, the Rabbinical Assembly declared:

Denying individuals access to the complete spectrum of reproductive healthcare, including contraception, abortion-inducing devices and medications, and abortions, among others, on religious grounds, deprives those who need medical care of their Constitutional right to religious freedom. 

Of course, other religious traditions see it differently. The Catholic Church, and some Protestant Churches, hold that personhood begins at conception, and therefore oppose abortion. Other Christian denominations support abortion rights. Islam, as far as I understand it, takes an approach similar to Judaism. It considers ensoulment to take place at 120 days, and has different rules for abortion at different stages of fetal development.

The point is that there is not and has never been a consensus on the question of when personhood begins and whether and in what circumstances, an abortion should be permitted. This is not a question that science can answer. It is and will always be a matter of belief, which is why it should be considered an issue of religious freedom.

The overturning of Roe v. Wade allows states to establish the law based upon a particular religion’s interpretation of when personhood begins. How does this not run afoul of the anti-establishment clause of the First Amendment?

A state can now prevent a pregnant woman from following the dictates of her own religion and seeking counsel from her chosen spiritual advisor in a matter that pertains to her own body. How does this not violate the free exercise clause of the First Amendment? What is religion for if not to guide a person through the most fundamental questions of life?

The R.A. concluded its statement yesterday with the following call to action;

There will continue to be legislative battles in the United States on both the federal and state levels that pose existential threats to reproductive freedom, especially so-called ‘heartbeat’ bills, which violate the foundational principle of separation of church and state. The Rabbinical Assembly emphatically opposes all such laws and Legislative or Executive moves and instead calls on members of Congress to decisively codify Roe v. Wade into law to enshrine the right to health, freedom, and dignity for all Americans.

Which brings me back to the point with which I started. This is personal. While facing a devastating decision to terminate a wanted pregnancy, Dana and I at least knew that there would not be legal barriers and that Dana could access the best care available.

I am terrified that someone else’s wife, mother, or daughter, will die because they do not have access to the same safe, legal abortion services that were available to us.