Arizona, Abortion, and Culpability

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Over the past month, an 1864 law in Arizona was in the news. Rendered moot for decades by the Federal right to abortion, but never repealed (and in fact affirmed by an Arizona Supreme Court ruling), the law punishes those who assist with abortions:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years. (Arizona State Law, 13-3603)

The law is relatively sweeping, carving out only an exception for saving the life of the mother.

What caught my attention was that the mother is nowhere mentioned. Her role is, in fact, discussed in another law:

A woman who solicits from any person any medicine, drug or substance whatever, and takes it, or who submits to an operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless it is necessary to preserve her life, shall be punished by imprisonment in the state prison for not less than one nor more than five years. (Arizona State Law 13-3604)

But here’s the curious thing: 13.3604, which deals with the mother, was repealed in 2021.

The first law, punishing the one who brings about an abortion, was finally repealed, after a bruising political battle. But the case highlighted a critical legal distinction that is often obscured in the highly charged political discussion about abortion. The person performing an abortion is not simply an agent of the mother. The two fall into separate categories, and their culpabilities, in the case of an illicit abortion, can be distinguished.

Abortion is a serious issue, and there has been a lot of commentary about this particular case. Most of the discussion whirls around the question of what makes an abortion “illicit.” Nearly every legal code throughout history, including those in the United States even when Roe v. Wade was the law of the land, has regulated abortion. I do not wish to minimize the issue of access to abortion, but I was intrigued by a much narrower question: Once we define an abortion as illicit – in whatever system, for whatever reason – how do we think about the roles of the mother and those actually terminating, or abetting the termination of, the pregnancy?

This question led me to consider how Jewish law, known as halakhah, deals with this problem. Jewish legal sources, particularly from the sixteenth century on, extensively discuss abortion. They tend to be focused on the same questions that animate us today: Is a fetus a “life”? Under what circumstances is abortion permissible? Due to what might be seen as a quirk in the Jewish legal system, they also consider potential differences between how these questions are to be resolved if the parties were Jewish or not.

It turns out, though, that they rarely consider the actual matter of culpability in the case of illicit abortions. In 1964, for example, Rabbi Moshe Feinstein (considered one of the greatest experts in Jewish law in his generation) composed a long and strongly-worded, basically polemical, opinion on abortion (Hoshen Mishpat, 2:70). In it, Feinstein argues that in almost all cases, except when doctors can testify that the mother’s life is definitely at risk, abortion is forbidden. It counts as murder, pure and simple. Toward the end of the responsum, though, Feinstein becomes uncharacteristically tentative. Yes, a doctor who performs an abortion is guilty of committing murder. But it is not actually “murder,” which would entail the death penalty. The reasoning here becomes strained, and the voice less sure. Doctors should not perform illicit abortions, but doing so is not exactly “murder,” even if it is technically classified as such.

When it comes to the mother, though, there is no discussion at all of culpability. Logically, a woman who pays a person to commit a murder might be considered an accomplice, with all the legal penalties that that might entail. Feinstein, though, avoids the question completely.

The reason he avoids this legal question becomes clearer from other halakic sources, but to understand how I need first to explain briefly how halakhah works. According to the traditional halakhic system, individuals are expected to consult with their rabbis about how they should behave in particular cases. The rabbi is then able to parse and weigh the issues in order to determine which factors are more or less halakhically relevant, before issues a ruling. The person asking for the ruling – but only that person – is then obligated to follow that ruling. Outside of a few very Orthodox communities, in practice this is becoming increasingly uncommon. Most observant Jews today turn to books or the Web for guidance. Be that as it may, though, this is how the system is supposed to work.

The bottom line of the halakhic literature is that a woman considering an abortion is expected to consult with her rabbi. At this point, the issue has clearly broken out of the strict contours of law. In addition to considering previous learned writings on the topic, the rabbi now has a human being in front of them, with her own unique set of difficult feelings and circumstances. The law, with its binary way of thinking, can only go so far. A rabbi might well tell her that while a decision to abort is against Jewish law, she herself is not necessarily committing a sin. Illogical? Perhaps, but also typically human.

Law has limits, and we come up against those limits fastest and hardest when we confront difficult issues like abortion. When we seek to shoehorn such issues into the “law,” we are asking too much of law and too little of our own abilities to have serious and meaningful discussions.