Listening to critics of the Partial-Birth Abortion Act of 2003, one might conclude that the law, which was ruled unconstitutional by several courts whose rulings are now under appeal before the United States Supreme Court, 1) is erroneously named, 2) lacks an exception to protect the life of the mother and 3) is based on false assertions.
And listening to some Jewish groups, one might conclude as well that the law 4) is at acute odds with Jewish values.
One would be wrong on all four counts.
Despite concerted efforts by some to misrepresent the law, its language is stark and clear. It prohibits any overt act, like the puncturing of the brain, “that the person knows will kill” a fetus whose “entire… head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.”
Thus, the removal of a fetus that has died or been killed inside its mother is clearly not prohibited by the embattled law. The procedure outlawed is the killing of a baby partially outside its mother’s body. One is hard pressed to imagine a more accurate name for the law than the one it colloquially carries. Indeed, some prefer the starker term “infanticide.”
Not, though, New York Times Supreme Court correspondent Linda Greenhouse. She rejects one brief’s description of the procedure as “killing a child in the birth process,” contending that every stage of gestation is perforce a part of the birth process. But Ms. Greenhouse, a truly gifted explicator of legal complexities, surely knows that the very point of laws is to draw lines, and that, to deal rationally with abortion, a line must be drawn between the concepts “unborn” and “born.” It is not unreasonable to imagine that line lying in the vicinity of what is described in the law’s language quoted above.
As to exceptions to the law’s prohibition, contrary to wide public perception, the law contains an explicit exception for cases where the procedure is deemed necessary to preserve the mother’s life. Whether the law needs a further exception for when a mother’s “health” is at stake – the law’s drafters found that there is no such situation – is one of the issues the Supreme Court will be weighing.
A piece of erroneous information was indeed found by critics in the law’s preamble: the assertion that “no medical schools” teach the procedure being prohibited. In fact, several do. The error, however, hardly affects the logic of the law.
Most troubling from my vantage point, though, is the assertion that the Jewish religious tradition is somehow offended by the prohibition, an assertion that has been made by a number of rabbis and Jewish organizational spokespeople. The president of Hadassah, to take one example, who baldly stated that the law “undermines Jewish values.”
She and others who have made similar claims are misinformed, and in turn misinform.
To be sure, the Talmudic sources are clear that the life of a Jewish woman whose pregnancy endangers her takes precedence over that of her unborn child when there is no way to preserve both lives. And, while the matter is not free from controversy, there are rabbinic opinions that allow abortion when the pregnancy seriously jeopardizes the mother’s health. But those narrow exceptions do not translate into some unlimited mother’s right to “make her own reproductive choices” — the position Hadassah enthusiastically trumpets — and most certainly not to any right to kill a live baby whose head, or most of whose body, has already emerged. What the Partial-Birth Abortion Act prohibits is, in the eyes of Jewish law, little if anything short of murder.
Nothing, of course, prevents a Jew, or Jewish organization or rabbi from ignoring the teachings of the Jewish religious tradition.
But intellectual integrity, if nothing else, should prevent anyone from misrepresenting what Jewish tradition has to say about killing a child who has effectively emerged into our world.