Friday, July 15, 2022

The Rape and Abortion of a 10 Year Old Girl

The Tzitz Eliezer - R' Eliezer Waldenberg, ZTL (Wikipedia)
Unfortunately a recent troubling event demonstrates exactly why it was in the interest of observant Jewry that Roe v Wade not be overturned. The Columbus Dispatch reports that a 10 year old girl living in Ohio was impregnated by her rapist.  After 6 weeks of a pregnancy Ohio’s strict anti abortion does not allow exceptions for rape or incest. So she had to travel to neighboring Indiana to get one.  Reuters reports that Dr. Caitlin Bernard, the Indiana OB-Gyn who performed the abortion now faces n investigation into possible violation of state law. 

What if this 10 year old were a Jewish girl? Would Halacha (Jewish law) say about it? Would she merit an abortion? 

The primary reason to permit an abortion is to save the life of the mother. A fetus that endangers the life of the mother is considered a Rodef – someone that pursues you in order to kill you.  That allows you to ‘kill’ the fetus before it kills you. 

Unlike Christian denominations, Halacha does not consider life to begin at conception. A fetus is not considered a full person and not given the same protection. In fact - until 40 days after conception, the fetus is considered plain water (Yevamos 69B). One opinion in the Gemara asserts that the a fetus is actually a part of the mother’s body (Uber Yerech Imo). But that is not how the Halacha has evolved. We do consider the fetus a separate entity that is forbidden to be killed at will.

The truth is that most Poskim agree that rape alone does not qualify for an abortion.  Although R Ya’akov Emden (the Yaavitz) allowed an abortion following an adulterous affair with a married woman that would produce an illegitimate child (mamzer), he is alone in that opinion. But that a Posek of his stature can make that kind of exception shows that the Halacha is not that clear..

There is a debate among Poskim about whether there are other circumstances where an abortion is permitted. Like the case of  a Tay-Sachs baby that faces a very short and painful life that ends in certain death.  R’ Eliezer Waldenberg, ZTL, (the Tzitz Eliezer) famously permits it up to the end of the second trimester (the end of 6 months). I do not believe that any of the states that  made abortions illegal allow for such exceptions. 

There is also debate among Poskim about whether other serious but non life threatening health issues - including mental health -  allow for an abortion. 

However, the bottom line is that abortion based only on the demand of the mother is against Halacha.

If I were to sum up what the Halachic approach to abortion should be, it would be neither Pro-Life nor Pro-Choice. But as a practical matter being Pro-Choice is the only option that allows us to make our own decisions about whether an abortion should be performed or not.

This brings me back to the question I asked. What about a 10 year old who was raped? Is an abortion permitted in her case?

The best I can do to answer that question is to say that it is unclear. If there is a physical danger to a 10 year old to take a pregnancy full term  and give birth, then an abortion is required. If the danger is psychological - the trauma of a 10 year old being raped, getting pregnant, and being forced to give birth is unimaginable. It surely has the potential to do enough psychological damage to cause severe depression and even suicide. 

Since states have each been given the right to make their own laws about this, Ohio law forbids an abortion even in this case. They instead required her to go through with her pregnancy and give birth regardless of her mental health. Whereas Jewish law might very well have permitted it. 

I mention all of this this because of those among us celebrating the downfall of Roe V Wade. The counter to my support of Roe V Wade was that the anti abortion laws as currently constructed in the states that have outlawed it (or will outlaw it) provides exceptions for the life of the mother. And since that is the primary reason Halacha allows it we need not fear being denied it. 

But as this case shows sometimes state law does not exactly match ours. And the argument that they can go to a state that does permit it is not all that clear either since it may be considered a criminal act for the mother in an anti abortion state to go to another state to get one. And a physician might be reluctant to perform it on an out of state patient because of possible legal consequences.

It’s true that cases like this are rare. But they do happen. Pedophilia is still a major plague on society. The possibility of a 10 year old girl getting pregnant that way as a result of that is very real – as we now see.