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26 Suffolk U. L. Rev. 641 (1992)
An Halachic Overview of Abortion

handle is hein.journals/sufflr26 and id is 661 raw text is: AN HALACHIC OVERVIEW OF ABORTION Rabbi Kenneth Shuster* I. INTRODUCTION This article examines Orthodox Judaism's position regarding abortion using halachic' and talmudic sources.2 While Jewish law concerning abortion is important primarily to practitioners of Judaism and those who have an academic interest in the halacha, the halacha's treatment of abortion is also of general significance for three reasons. First, Judaism's views on abortion compliment American abortion law because both Jew- ish and American law attempt to balance the interests of the fetus against those of the mother.3 In addition, the Supreme Court relied, in part, on Jewish law to decide its landmark abortion decision Roe v. Wade.4 Fi- nally, Jewish law on abortion also illustrates that the conflict in America between the prochoice and prolife movements need not be an abso- lute one. Orthodox Judaism is certainly both prochoice and prolife. It is prolife because it forbids abortion, absent special factors, and it is * Rabbinical Ordination, Master of Science (M.S.) (Philosophy), Yeshiva University, June 1988; Bachelor of Religious Education (B.R.E.), Talmudic University of Florida, June 1983. This paper is dedicated to Rabbi Evan Radler. The author acknowledges the assistance of his father, Marvin M. Shuster, M.D., in the preparation of this article. 1. Halacha means Jewish law; halachic means pertaining to Jewish law. See HAYIM H. DONIN, To BE A JEW 29 (1972) (explaining definitions and foundations of Jewish law); see also DAVID M. FELDMAN, MARITAL RELATIONS, BIRTH CONTROL AND ABORTION IN JEW- ISH LAW 12-14 (1968) (defining historical parameters of Jewish scholarship). Halachic schol- arship consists of two periods: the rishonim and the acharonim. These terms are used to refer exclusively to Orthodox Jewish law. The first period of Jewish study was that of the rishonim or first scholars prior to the codification of Jewish law in 1565. This article cites the rishonim Moses Maimonides and Moses Nachmanides. See infra notes 23-24 and accom- panying text. The second period, that of the acharonim or later scholars, began in 1565 and continues to the present. This article mentions the opinions of the following acharonim: Yair Bachrach, Shlomoh Drimmer, Jacob Emden, Elijah Mizrachi, Ben-Tzion Ouziel, Issur Unterman, Eliezer Waldenberg, Mordechai Winkler, and Moshe Zweig. See infra notes 14-21, 27-68 and accompanying text. Because many readers may be unfamiliar with the cited author- ities, the author provides a brief biographical description of each scholar mentioned in the text in the appendix. 2. The Talmud is a rabbinic commentary on the Old Testament (called Torah in He- brew). There are Babylonian and Jerusalem editions of the Talmud because when the Talmud was compiled, the two centers of Jewish learning were Pumbaditha, Babylonia and Jerusalem, Israel. PAUL JOHNSON, A HISTORY OF THE JEWS 153 (1987). 3. For an example of how Orthodox Judaism seeks to balance the competing demands of fetal and maternal life, see DONIN, supra note 1, at 140-41. For an example of how American law attempts to balance the demands of fetal and maternal life, see Roe v. Wade, 410 U.S. 113, 116 (1973). 4. See Roe, 410 U.S. at 160 (citing L. LADER, ABORTION 75-77 (1966) and D. FELDMAN, BIRTH CONTROL IN JEWISH LAW 251-94 (1968)) (referring to Judaism's belief that life begins at birth).

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