i eA Lilli oD CL
MARK WASHOFSKY
reason or for no reason at all. The destruction of the fetus is a potentially dreadful prospect. The fetus, if not possessed of a"right to life," deserves at the very least our most serious moral concern. To justify the termination of a pregnancy requires a moral consideration of the first order: the fetus must pose a significant danger to the mother. And Rashi, too, must be heard: this danger need not be mortal. The fetus is not a person. Its destruction, if a forbidden act, is not tantamount to murder. There are situations other than threat to life and limb wherein it is possible that a woman's well-being will argue for or even demand an abortion. Jewish law has long recognized and acted upon this possibility; that option should not now be arbitrarily denied to observant Jews .
Two broad conclusions emerge from this picture of a conversation between halakhic positions. The first is that a woman would not be entitled to abortion on demand; there must exist a warrant, a sufficient and carefullyreasoned justification for the procedure.''® The second is that the definition of "sufficient" will differ from case to individual case. Since the circumstances of each person's life are unique, it is impossible to fix an a priori set of circumstances that warrant abortion in all situations. Abortion, for example, has been permitted in order to spare a woman"severe emotional trauma", a diagnosis of which must be based upon the psychological state of a particular individual. The consequences of an unwanted pregnancy may be emotionally shattering to some women; others will find a way short of abortion to cope with those consequences. The very sources which prohibit abortion, in other words, will also permit it, under identical circumstances, depending upon the situation of the individual human being who seeks rabbinic guidance. This is the inevitable outcome of a discussion which proceeds from texts that support more than one right answer to our question. The texts will provide an agreedupon starting point for analysis, the outlines within which the discussion must occur. But the pesaq, the direction and end of that discussion cannot be determined in advance of considering the individual case.
This element of indeterminacy is profoundly disturbing to those who
seek clear and certain solutions from the law. Yet this unease assumes a faulty conception of law as a system of determinate rules and principles designed to
75