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.

What Is Life Worth? – Yom Kippur 5779

[I got the idea for this sermon from an interview of Kenneth Feinberg by Steven J. Dubner on the podcast Freakonomics (of which I am a regular listener).  You can listen to the podcast here.]

Last week, on the second day of Rosh Hashanah, we observed the seventeenth anniversary of 9/11, when 19 terrorists hijacked four airplanes and crashed them into the World Trade Center in New York City and the Pentagon in Washington, D.C.  Nearly 3000 people were killed and more than 6000 were injured.

Almost immediately after the attacks, the airline industry started lobbying Congress.  It worried that the victims would bring lawsuits that would bog them down in court for years.  Congress worried that lawsuits would cause Americans to lose faith in air transportation and stop flying, which could have devastating effects on the country.  It quickly began drafting a law to limit the airlines’ liabilities.  But that meant victims’ family members, as well as those who were injured, would be restricted in their abilities to seek compensation.

At the last minute, Congress added a provision to address this concern.  They created the September 11th Victim Compensation Fund of 2001, to which eligible persons could apply in exchange for foregoing all rights to sue.  The American people would collectively pay damages to the victims of 9/11.

On September 22, 2011, just eleven days after the towers fell, the Air Transportation Safety and System Stabilization Act passed and was signed into law by President Bush.

The Act required the Attorney General to appoint a Special Master, who would be granted sole authority over the entire program.  The Special Master would be responsible for developing procedures by which family members and injured persons could apply for compensation.  He would have to develop a formula for determining award amounts.  He would also determine the total amount of money that the fund would distribute.  No distinctions whatsoever were to be made between citizens and non-citizens, including victims who were undocumented.

In effect, Congress gave the Special Master a blank check with which to compensate the victims and family members of 9/11.  Short of being fired by the Attorney General, there would be no oversight and no review.

No program like it had ever existed.

Attorney General John Ashcroft turned to a lawyer by the name of Ken Feinberg.  Feinberg was a Democrat, having worked for Senator Ted Kennedy early in his career.  Feinberg also had prior experience serving as a mediator for victim compensation funds.

Although a Democrat. Feinberg was well-respected and liked across the aisle.  Perhaps most importantly, he could be easily jettisoned if things did not go well politically.

Feinberg turned out to have been the perfect choice to serve as Special Master.  He demonstrated wisdom and sensitivity for the victims and their families.  He took his role as fiduciary for the American people seriously, and he considered the precedent that his decisions would set.  After closing the compensation fund three years later, Ken Feinberg wrote a book called What is Life Worth? in which he describes his experiences.

Consider the difficult position into which Feinberg was placed.  In administering the 9/11 Victim Compensation Fund, he found himself in the unenviable position of having to determine how much the lives of thousands of human beings were worth—in dollars.  He would have to weigh the relative merits of competing claims and decide whose death would be compensated with more and whose would be compensated with less.

It would have been far easier to simply state: “a life is a life.  We are all equal in the eyes of God,” and allocate identical amounts for each victim. 

But, in its hastiness, Congress ruled that the awards needed to be based on economic loss, that is to say, current and future anticipated earnings.  That meant that the family of a bond trader who earned $20 million annually would receive a greater payout than a firefighter, police officer, or soldier, not to mention a busboy who earned $20 thousand per year.

So Feinberg went to his Rabbi for advice.  It was not so helpful.  His Rabbi acknowledged that 9/11 was unique.  There were no ready-made answers contained in the Torah or Jewish wisdom.  “I alone had the ultimate responsibility of determining each award,” Feinberg wrote,

based largely on a prediction of what the victim would have earned had he or she survived.  It was a job that called for the wisdom of Solomon, the technical skill of H&R Block, and the insight of a mystic with a crystal ball.  I was supposed to peer into that crystal ball, consider the ebbs and flows that made up a stranger’s life, and translate all of this into dollars and cents.  (87)

Reactions by victims’ family members were all over the place, as one might imagine.  There was tremendous distrust of the program at first, and of Feinberg in particular, who became the public face of the U.S. government’s response to the families.

This program became the primary way that the American people would acknowledge the families’ losses in the first few years after 9/11.  It was inevitable that these payouts would be perceived as determinations of the worth of a person’s life in the eyes of the public.  

But money cannot bring closure.  Feinberg tried hard to emphasize that the purpose of the fund was to meet financial need, and not to value the moral worth of the victims.  But in creating this fund, Congress set up a dynamic which encouraged people to translate the value of their loved ones in dollars.  That perception was difficult to overcome.

Feinberg knew that the families’ emotions were raw, and that they would need time and space to vent.  At the beginning of the process, he personally led public meetings, strongly encouraging all family members to attend.

He and his office personally tracked down the relatives of every single victim, in the US and abroad.  That included eleven undocumented workers, whose foreign relatives were especially difficult to locate.  He made himself available for one on one meetings with anyone who desired, at any stage in the process.  In two years, Feinberg personally met with over 900 families.

In those meetings, they told him stories about their loved ones.  They expressed anger and sadness.  They wanted to know why it happened, and why their loved ones had to die.  Some expressed faith.  Others shared their loss of faith.

Of course, every family had a story to explain why their loved one was unique, and why their death deserved greater compensation.  After all, if money is the measure of a life’s worth, I would be disrespecting my loved one’s memory if I did not argue for more.

How can the pain and suffering of two different people be compared?  Is the loss more difficult for a spouse who enjoyed thirty years with another person, or for a newlywed who had an entire lifetime taken away?

Should the family of a firefighter who died saving the lives of dozens of other people be worth more than that of a secretary, or a chef, or a lawyer?  Should age be a determining factor?  What about the more than 60 widows who were pregnant with a child who would never know their father?  Is that worth more?

In the end, Feinberg decided that he would not distinguish.  Each victim would get $250,000 for pain and suffering, and each surviving spouse or dependent would receive $100,000. 

Nevertheless, he encouraged families to talk about their loved ones, inviting them to share what was special and unique.  This program could help serve as witness to their grief.  It was an important step in reframing the program and helping families begin to move on.

Senator Kennedy advised Feinberg “to make sure that 15% of the families don’t receive 85% of the taxpayers’ money.”  While the awards could not be identical, they also did not have to be proportional to income.  Feinberg could nudge low amounts upwards, and nudge higher amounts downwards—and he did.

He developed a formula to determine awards, and further reserved the ability to make adjustments in special cases.

In the end, ninety seven percent of all eligible families entered the program.  Spouses and dependents of 2,880 victims received almost six billion dollars in tax-free compensation.  The median award was just under 1.7 million dollars, and the maximum award was 7.1 million dollars.

2,682 of those who were injured received more than one billion dollars in compensation.  

When the fund was closed at the end of 2004, it was considered to have been a tremendous success.  The families were appreciative of Ken Feinberg and his team.  The compensation they received did not bring their loved ones back, but did help them to piece their lives back together and begin to move on.  It was not so much the money that did that, but the respect and dignity that was afforded to each individual life.

Judaism has many teachings about the extraordinary worth of an individual human life.  The earliest law code, the Mishnah (Sanhedrin 4:3), imparts this lesson as early as the second century.

Therefore, Adam was created by himself, to teach us that whoever destroys a single life is considered by Scripture to have destroyed the whole world, and whoever saves a single life is considered by Scripture to have saved the whole world.

The context of this teaching is important.  It is a short speech that is delivered to witnesses in a murder trial before they present their testimony.  It is supposed to warn them of the importance of testifying truthfully, as the accused’s fate will be determined by their words.

Each human being must be considered to be like Adam, the first human, from whom all of humanity descended.  “Choose life,” the Torah instructs us.  Life is of such enormous value that, with just three exceptions, we are commanded to violate every mitzvah in the Torah to save it.  In Kabbalah, Jewish mysticism, we learn that a person is an olam katan, a small world, a microcosm of heaven and earth itself.

To quote a certain credit card company, a human life is “priceless.”

Valuing a life in dollars and cents is cold and arbitrary.  But we tend to do exactly that.  Think about the expression, “So and so is worth x amount of dollars.”  Or a company.  Apple recently became worth more than one trillion dollars.  I hope we can agree that a person’s real value, and even a corporation’s real value, should not be determined by income or wealth. 

To do so would seem to go against everything that Judaism teaches us.

But, in other contexts, Judaism does value human life in shekels.  In ancient times one of the ways in which a Jew could express gratitude or hope to God, would be to proclaim a vow.  A vow is essentially a promise to deliver something specific of value to the Temple.  

In making a vow, I might dedicate a field, a particular animal, or the income that someone will earn over a period of time.  Or, I could dedicate a person—either myself or a member of my household.

If I dedicate an animal, I am obligated to bring that specific animal to the priest.  No substitutions are permitted.  So if I offer a person, must that person be sacrificed, or sent to work in the Temple for the rest of his or her life?  How do I dedicate a person to God?  

The Torah establishes that to fulfill a vow for a human being, I must pay that person’s value, in shekels, to the Temple treasury.

The exact value is determined by the priest, and is based on the ability of the vower to pay.  But there is a minimum and a maximum.  The minimum, according to the Mishnah, is 1 shekel of silver.  That is about $9 in today’s money, at current silver rates.

The Torah lists the maximum amounts, based on age and gender.  Adult males between twenty and sixty are worth 50 shekels of silver.  Females are worth 30.  And so on for children, babies and elders.

The only factor that can be used is personal wealth.  The Mishnah specifically states that the maximum assessment of 50 selas (the replacement for the shekel) would be identical for the finest looking and the ugliest person in Israel.  (Arachin 3:1)

This formula is not so dissimilar to the formula that Ken Feinberg used.  Values based on wealth, with minimum and maximum caps.

What is a life worth?

Since none of our riches will come with us, what can serve as the true measure of a person’s value?  

The High Holidays bring the question of our life’s value to the forefront of our consciousness.  It is nowhere better expressed than in the prayer Unetaneh Tokef in our mahzor.

This prayer, which is really an allegory, takes place in a courtroom.  God is never mentioned directly by name, but presides as Judge, Prosecutor, Expert, and Witness.  Each of us is the plaintiff, with our actions serving as evidence and the fate of our lives hanging in the balance.  Every deed, public and private, remembered and forgotten, is entered into the record.

The shofar sounds, and the allegory shifts.  Now we are sheep passing before the Shepherd, one by one.  The Shepherd examines each one of us, counting and inspecting, and determining our fate for the year ahead.

Who will live, who will die.  Who by fire, who by water.  Who will be impoverished.  Who will be made rich.  Who will be brought low, and who will be raised up.

The results are not shared with us.  But that is not all.  Read the prayer closely.  There is no causal relationship between the verdict and the sentence.  We emerge from the courtroom in suspense, with our destinies hanging.

Unetaneh Tokef captures the fragility of our existence.  There is no appeal for the Judge to change the verdict, nor for the Shepherd to alter the decree.  The imperfect world we live in does not work that way.  Despite the illusion of control, we know that so much of our lives are determined by forces outside of our control.

In the year ahead, it is certain that each one of us will experience disappointment and loss, joy and success.  At some point, may it be many years from now, each of us can be certain that we will face the end of our own life.

While terrifying, this allegory invigorates.  It tells us that every action, in every moment, matters.  Every deed in the Book of Remembrance is a record of our impact on the universe.  

So what is a life worth?  From one perspective, almost nothing.  One of the prayers after Unetaneh Tokef compares a human being to: a broken shard, withering grass, a shriveled flower, a passing shadow, a fading cloud, a fleeting breeze, scattered dust, and a dream that flies away.  In the vastness of the universe, we are almost nothing.

But each of us is also an olam katan, a microcosm of that same universe, with a spark of divinity hidden inside our hearts.

The knowledge that there will be a reckoning makes life matter.

The value of the lives of the 9/11 victims could not be measured by any dollar amount.  It is measured by the deeds they performed in the time they were allotted; the love they shared; the people they helped; the mistakes they made; the husbands, wives, children, brothers, sisters, parents and friends they left behind; the communities they enriched; the traditions they passed down; the beauty they paused to acknowledge; and the growth and learning they experienced each day that they were blessed to be alive.  The lives of those who died rescuing others are valued by those whom they saved.

The same is true for all of us.  Unfortunately, that is a lesson that we too often learn at the end.

What is life worth?  It is worth what we decide to make it worth.

Rabbi Harold Kushner once told the story of a man who, at the end of a full life, dies and suddenly finds himself standing at the end of a long line that leads to two doors — and there is an usher. 

“Move along,” says the usher.  “Keep the line moving.  Choose a door and walk through.”

Looking ahead, the man sees, at the very end, one door marked “Heaven” and the other marked “Hell.”

Gradually, the man proceeds up the line.  He observes that most people, without hesitation, walk confidently to the door marked Heaven, open it, and enter.  For every person whose turn arrives, someone new joins the back of the line.

Eventually, the man finds himself up front.  This is his chance to ask the question that has been burning inside.  “Wait a minute.  Where’s the Last Judgment?  Where am I told if I was a good person or a bad person?  Where are all my deeds weighed and measured?”

The usher looks at him and says, “You know, I don’t know where that story ever got started.  We don’t do that here.  We’ve never done that here.  We don’t have the staff to do that here.  I mean, look, you’ve got ten thousand people showing up every minute.  I’m supposed to sit here with everyone and go over his whole life?  We’d never get anywhere.  Now move along.  You’re holding up the line. Choose a door and walk through.”

“You mean I really have to choose?”

“Yes.  Now pick one already.”

Heaven.  What would that mean?  All would be wiped away — the acts of cowardice, the mistakes and regrets.  But also the agonized moral choices, the moments of courage, the times he chose the more difficult path.  

Hell.  That would bring judgment and accusation.  It would mean risking punishment.  Can he face that?  Will his merits outweigh his misdeeds?

“Come on.  We don’t have all day,” complains the usher, tapping his foot.

Taking a deep breath, the man says to himself, “I want my life to have mattered,” and walks through the door marked “Hell,” ready to be judged.