MARK WASHOFSKY

The halakhic debate over abortion is shaped by similar concerns. Halakhists studying the question find that the texts and sources support more than one plausible answer to it. The poseq's task, as traditionally conceived, is to determine which of these answers is the"correct" one, the one which best represents the attitude of Jewish law. He does this, in good Dworkinian fashion, by forging an interpretive theory which in his view makes the best sense of the Talmudic and halakhic"data" and thus dictates his ruling. This requires, however, that he account for those sources in the literature contrary to his theory. He may try to explain them away by arguing that, in fact, they do not speak to the issue at hand("distinguishing the precedent").”’ Failing that, he may concede that these data indeed contradict his understanding of the halakhah but that, since his interpretive theory is the best understanding, they are mistakes, declarations of the law which, though enjoying specific authority in their time and place, need not exert"gravitational force" upon his own ruling. The problem, as Dworkin notes,” is that there is a limit to the amount of legal history that can be disposed of in this way. When a significant number of authorities rule the other way, the rightness of a poseg's own decision is cast into serious doubt. On the abortion issue, while the stringent position has achieved the status of"consensus", the text-interpretations upon which it rests do not convince a number of leading"orthodox" posgim, both past and present, let alone the liberal halakhists. It is possible to read the same texts which buttress the stringent ruling and yet remain unpersuaded by it. Hence, Balfour Brickner can legitimately claim that the lenient view, which tends in a"pro-choice" direction,” is a legitimate expression of Jewish tradition.

The Jewish law of abortion is therefore indeterminate: abortion may be permissible only in cases of mortal danger, or it may be permissible under a wider range of circumstances. This indeterminacy is inevitable so long as the texts allow more than one plausible reading and so long as halakhists are free to draw their own conclusions from them. Legal indeterminacy, though, is profoundly disturbing to many orthodox Jews . Surely the Torah does not speak with more than one voice; surely the halakhah offers clear and unambiguous guidance on a moral question as important as this. The faith in the existence of"one right answer" means that the very possibility of

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