Taking Precedent Seriously 29

authorities. Consensus thus enables the Orthodox community to identify itself, to its own members and to the rest of the Jewish world. The controversy over abortion in Jewish law serves as a good example of this consensus at work. I say“controversy” because the halakhic literature supports either one of two gen­eral approaches to the permissibility of abortion. A number of authorities, including some outstanding Orthodox poskim of our own time, hold that a pregnancy may be terminated for a variety of reasons, including the desire to safeguard the physical and emotional health of the mother. Others, however, rule that abor­tion is permitted only when the procedure is necessary in order to save the life of the mother, when the fetus can be termed a “pursuer”(rodef) that poses a mortal danger to her. The debate has a long history; it is involved, complex, and nuanced. Yet one who reads today’s Orthodox halakhic literature, particularly those writings such as compendia on“Jewish medical ethics” intended for a general audience, finds little evidence that the more lenient position remains a legitimate option under Jewish law. The more stringent position, which has now been assumed by the preponderant majority of Orthodox halakhists, has become the law, while the comparatively lenient alternative(which itself is far from a permit for abortion“on demand” but sets careful requirements before permitting the procedure) is treated as a deviation from the mainstream—i.e., the“correct”—understand­ing of the halakhah.'”

Consensus also operates as a constraining factor in the area of marital halakhah. In 1966, Rabbi Eliezer Berkovits, the well­known theologian, proposed a solution to the problem of the agunah, the wife unable to remarry under Jewish law because her husband either cannot or will not issue her a valid divorce document(get peturin). The injustice of this situation has long been evident. Under traditional halakhah, the wife cannot divorce the husband; he must divorce her, and if he does not she may be left with no recourse but to live alone or to accede to whatever exorbitant demands the husband will make of her as his price for issuing the get. Over the years, halakhists have sought to con­struct legal remedies that would enable the agunah to remarry in cases where the husband ought to but does not authorize a divorce.'® Berkovits, for his part, suggested that prior to the wedding the bride and groom stipulate that their marriage would be annulled retroactively should the husband one day