Yesterday, we looked at the problem of 13% of the population who want abortion criminalized and doctors–and even post-abortive women–to suffer the penalties of law for “murder”. This can only mean, if they get their way, either very long prison sentences or the death penalty. In future posts, we will look at the many, many problems which attend the monomaniac desire to address abortion, not by reducing demand, but by punishing suppliers and customers.
But for now, I want to simply focus on the problem raised here yesterday of punishing people whose religious tradition (in this case, Judaism, but there are others as well) not only permits abortion but in fact specifically bids that mothers be privileged over the unborn.
Many conservative Christians (particularly Catholics) have, as I have noted, given very little thought this matter. In many cases, the vague notion appears to be that there are “real Jews” who think more or less like Catholics about the unborn and then there are “fake liberal Jews” who don’t. This is simply not so. Even in the case of Orthodox Jews who take a stricter view of abortion, the mother remains privileged over the unborn and, when the unborn threatens the life of a mother, is regarded as .a “murderer”:
If there is a threat to a woman’s life, the safety of the mother takes precedence over continuing the pregnancy at any stage. Many sources illustrate this graphically and rather unambiguously, and all modern poskim, or religious decisors, agree on this. In fact, in certain circumstances, a fetus that endangers the life of the mother is legally considered a “murderer” in active pursuit.
For example, in a case of maternal danger, we find in Sanhedrin 72b (further clarified with Rashi’s commentary) that “a midwife may insert her hand into the womb and kill the fetus … [the reason is] for as long as the fetus has not emerged into the world, it is not a nefesh [a being with a soul]; one is therefore allowed to kill it and save the mother …”
According to Mishna Oholos 7:3, “If a woman is having trouble giving birth, they cut up the child in her womb and bring it forth limb by limb, because her life comes before the life of [the child].”
Jewish law prohibits killing in all cases — except if one person is trying to murder another. If an individual is trying to end someone’s life, killing that person is actually a requirement. How much more so, a fetus (not yet a full person) who threatens the mother’s life may be aborted.
In his Mishneh Torah, Maimonides writes the following: “The sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or drugs, for the fetus is considered a rodef [a murderer in pursuit] of its mother … If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.”
In other words, when a fetus endangers the life of the mother, unless it is in the process of being born, abortion is a halachic requirement.
The point here is not to debate the considerable difference between this and the Catholic belief in the sanctity of life from conception rather than birth. Rather, it is to point out that attempting to use the power of the state to impose penalties that include life in prison or even death for Jewish doctors who are obeying the teaching of their religion in good conscience is a manifestly insane approach to the problem.
Perhaps a thought experiment will help:
It seems to me to be obvious that abortion is the taking of innocent human life. As Atheists for Life admirably expresses it: “For the embryology textbook tells me so.”
What is not obvious apart from a number of highly conditioned philosophic and theological suppositions is whether that innocent human life is a person possessing dignity as a creature made in the image of God (as the discussion above illustrates). Because of this, I do not see how it can be just to arraign for murder people who honestly and in good conscience cannot see the Catholic and conservative view of the unborn. I can absolutely accept that it is the duty of Catholics to try to persuade others of our view of unborn as the best one, just as I think it our duty to try to persuade those who cannot see it that our understanding of the Eucharist as the body, blood, soul, and divinity of Jesus Christ is true.
But here’s the thing: Would we as Catholics expect the state to impose penalties of law for even greater sins than murder in a pluralist culture that does not share our presuppositions as Catholics? I say it is clearly not so.
So, for instance, it can be (and would have been, six hundred years ago) argued that desecrating the Eucharist is a far graver sin than murder since it is an assault, not merely on innocent human life, but on the Son of God himself. As far as the gravity of the act, I see no choice but to affirm that, given what the Eucharist objectively is, to descrate it (as the Pharyngula blogger did some years ago) is an insult to God even graver than the murder of a human being. Yet, who in their right mind would call for the execution of the Pharyngula blogger (barring a few Reactionary nuts)?
Now the question is: Why do we believe it would be insane? And I think the answer is pretty plain: Because the culpability for such an act is effectively zero and there may even be mitigating circumstances that are (subjectively) meritorious. Clearly, the desecrator did not believe for one second he is actually literally insulting Jesus Christ, really present in the Eucharist. He may even hold Jesus (or what he knows of him) in high regard. Indeed, nearly every critic of Christians compares them to Jesus and finds them, not fools for admiring him, but appalling failures in comparison to his shining example. So here. Pharyngula thinks he is offering an insult, not to Jesus Christ, but to people who, for all we know, merit the insult (such as an abusive priest, for instance). Would burning such a one at the stake achieve any good end whatsoever? Clearly not.
Now mark this: This does not mean we are “soft on the Real Presence” if we don’t go around demanding the state punish people who do not reverence the Eucharist or even disrespect it. It means that in the case of this core theological belief, we understand that people need to travel a long way from where they are to where we are in order to even see what we are talking about. We understand that we catch more flies with honey and that carrots work better than sticks in winning hearts and minds.
My point then is that culpability matters enormously here. I therefore deny that any justice would be done to the unborn by punishing post-abortive women or doctors, the vast majority of the latter not sharing the complex and highly conditioned views of unborn human life that conservative Christians have and, in the case of a practicing Jewish doctor, actually taught by his tradition that to not privilege the mother is sinful. I cannot see how compelling the state to punish him is substantially different from compelling the state to punish him for failing to genuflect the Host. It’s not a perfect analogy. But I think it’s an awfully strong one.
So I conclude that with the issue of criminalizing abortion we are bound to a course similar to that we must pursue with the Eucharist: we work to persuade, not to rely on force and fear to compel. Criminalizing abortion seems to me to be analogous to criminalizing disbelief in the Real Presence. There are some things that simply cannot be forced.