House Health Care Bill Discriminates Against Religious Freedom

The debate about abortion, particularly as connected to health care reform, has been characterized as a “conservative” versus “liberal” debate. What is missed in that approach is the fact that the foundational theologies among Jews, Muslims, and even many otherwise “conservative” Christians are more nuanced and complicated than the simplistic and absolutist stands taken by the “C Street” Democrats and their supporters.

The recently passed House health care bill might be paving the way to enact religious discrimination into law; on the important and fundamental issues of life and health, many religious Americans will be unable to live and act according to their own religious consciences and beliefs.

Representative Bart Stupak’s last-minute abortion amendment, supported by the direct lobbying of some Roman Catholic bishops, will have the effect of removing the possibility of abortion from the American health care system, even in cases where the health and life of the mother is at risk. It goes beyond current law and practice, and inserts the theological views of a vocal religious minority as a roadblock to the religious beliefs and practices of many Americans.

Ensoulment, the Moment the Soul and Body are Joined

The Jewish tradition values life. The biblical commandment to “be fruitful and multiply,” repeated over ten times, is taken as one of the most important commandments among all varieties of Jews, and the ritual importance of parenting is central to a Jewish life. Nevertheless, abortion is neither forbidden nor regarded as murder in the Rabbinic Jewish system. In Judaism, the fetus does not have the status of “person” with a separate juridical “personhood” until its head emerges from the womb. In the Mishnah, the foundational work of Rabbinic law, we are told: “If a woman suffers difficult labor in childbirth, the fetus must be cut up in her womb and brought out piece by piece, for her life takes precedence over its life. If [however] its greater part has [already] come out, it must not be touched, for the [claims of one] life can not supersede [that of another] life.” (Oholoth 7:6) On the basis of this, rabbis have consistently argued that the health of the mother must take precedence over the fetus. This position was clearly expounded by one of the most famous rabbis, Moses Maimonides.

As additional evidence that the fetus is not a person, it cannot receive gifts, and if aborted or lost by miscarriage, it cannot receive a Jewish name or a Jewish funeral. Rabbinic discussions of when the soul enters the fetus are not part of the conversations about abortion in Judaism. The rabbis were interested in ensoulment, the moment that the soul and the body were joined, but there was no agreement about the issue. And, the soul in Judaism is pure soul and immortal whether joined to the body or not and is not entangled in anything like the Christian notion of “Original Sin.” Most rabbis agree that trivial or material reasons for abortion are to be condemned, but that abortion for the life and health of the mother is both permissible and mandated. Anything that limits this mandate restricts the Jewish mother from acting in a fully Jewish way.

Looking at Muslim beliefs about abortion, we see that there are many different views, just as there are among Jews and Christians. The Qur’an condemns murder, as “Do not kill a life that Allah has made sacred, except for just reasons,” (6:151 or 4:29) but does not mention abortion. It does prohibit killing children when there is not enough food to provide for them (17:31), but Muslim theologians and jurists have interpreted that to mean that it is not permissible to kill a fetus once it has become a “child,” that is, a person.

In Sunni Islam, with its four different legal “denominations,” there is no agreement about when that is. Among Hanafi Muslims, the legal practice common in the Middle East and Central Asia, ensoulment takes place 120 days after conception. Up to that point, abortion is allowed for good cause. This is true of the Shafi’i Muslims of Southeast Asia and East Africa. For the Malikis in North Africa and the Hanbalis of Saudi Arabia and the Emirates, ensoulment occurs at day 40, with abortions allowed up to that time. On the basis of Qur’an 2:233, which states that the mother should not be made to suffer on account of the child, many Muslim jurists allow abortion even after the period of ensoulment, particularly if the life of the mother is threatened, since the life of the already living mother is viewed to have precedence in the decision about the lesser of two evils.

As with Judaism, abortion for Muslims is not meant to be used for birth control or venal reasons, and like Judaism, Muslim thinkers recognize a nuanced and progressive development of the fetus into personhood. This nuance, as well as the vicissitudes of human life, is taken into account by Islamic religious law and practice. As with Judaism, the absolutist positions reflected in the House bill would discriminate against Muslims in America living a full religious life.

Views on abortion vary among the world’s Buddhists. Japanese Buddhists generally hold a more open view of abortion, and women will often participate in memorial ceremonies for the fetus lost by abortion or miscarriage. Tibetan Buddhists, both in Tibet and in exile, on the other hand, regard abortion as destructive of innocent life and contrary to Buddhist principles. The Dalai Lama has said that abortion is “negative,” but he also said in a 1993 interview that “abortion should be approved or disapproved according to each circumstance.” Similarly, Hindus hold that the destruction of a fetus prevents a soul from participating in its karmic journey, but, following the principle of doing the least harm, abortion when it involves saving the life of the mother is held by many Hindus as permissible. Also, some Hindus hold that personhood only begins at the age of three months, a doctrine similar to the Muslim and Jewish notions of ensoulment.

The Primacy of Individual Conscience

Finally, it should be remembered that on this issue there is no unanimity among Christians either now or in the historical past. St. Augustine held that ensoulment occurred sometime after the beginning of the growth of the fetus and that abortion was not homicide. He, like other theologians of his time, was more concerned with whether abortion was being used to cover up the greater sin of fornication or adultery. In the late sixteenth century, Pope Sixtus V held that both contraception and abortion were homicide and punishable by excommunication, but his immediate successor, Pope Gregory XIV, held that this view was in conflict with Church practice and the theological views of ensoulment. Only in modern times has the Roman Catholic Church generally condemned all forms of abortion, even therapeutic abortions meant to save the life of the mother.

Protestant Christians vary widely in their views on abortion, and often hold views that are not reflected in the pronouncements of their church’s hierarchy, thus following the principle of the primacy of individual conscience. As an example, Episcopalians reflect a wide range, with some holding a position like that of the Church of England that abortion is morally wrong but permissible in the case of saving the life of the mother. Others stand in opposition to any state or federal law that would interfere with the woman’s right to decide about the termination of the pregnancy.

If the House health care bill is allowed to stand and becomes the basis for new legislation, religious Americans across the spectrum of faiths will be subjected to limitations that will contravene their faith’s most well-considered and cherished views about the major questions of life, reproduction, and freedom of religious conscience; freedoms imagined by our nation’s founders as central to the nature of our country.

GDNEWBY@emory.edu'

Gordon D. Newby is professor of Jewish, Islamic and Comparative Studies at Emory University.