is going to be Utah Day because our distinguished Congressman from Utah, Wayne Owens, has journeyed all the way over here from the House to be with us in welcoming Mr. McKay.

We have Mrs. Jean Garton, member, National Board for Social Concern of the Lutheran Church, Missouri Synod, accompanied by Dr. Ralph A. Bohlmann, executive secretary, Conimission on Theology and Church Relations, Lutheran Church, Missouri Synod. Finally we have Rev. Robert Holbrook, Baptist for Life, Halettsville, Tex.

If all of you would be kind enough to grace us with your presence behind the table here, we can get started.

Perhaps first I should introduce Senator Bennett. Senator, I know you are a busy man with some hearing in the Finance Committee. Perhaps you would care to introduce Mr. McKay?

STATEMENT OF HON. WALLACE F. BENNETT, A U.S. SENATOR FROM THE STATE OF UTAH

Senator BENNETT. Many of the audience may not know, but in the Mormon Church we do not have a professional clergy. Mr. McKay is a distinguished lawyer in Salt Lake and is the son of the former president of the Mormon Church and at this time is presiding over the church's mission activities in New York and New England.

He is here to state the church's position, but I cannot resist the temptation to say that he and I have four very good reasons why we are opposed to abortion. We share four grandchildren and we are very happy with them.

I am sure. Mr. Chairman, that you will enjoy hearing from Mr. McKay.

Senator BAYH. Thank you very much Senator. I know how busy you are and it is a tribute not only to your constituent and friend of a great common bond, but a tribute to this committee that you would join us.

Next we have Congressman Owens. Congressman Owens, I know you are also busy and we would be glad to have your comments regarding this very illustrious witness.

I apologize for not preparing a similar welcome for the other panelists.

STATEMENT OF HON. WAYNE OWENS, A REPRESENTATIVE IN CONGRESS FROM THE SECOND CONGRESSIONAL DISTRICT OF THE STATE OF UTAH

Mr. OWENS. Thank you. You are very kind to permit me to say these brief words of introduction, Mr. Chairman.

I appreciate the chance to appear very briefly to introduce President McKay, who is representing the Church of Jesus Christ of Latter Day Saints, the Mormon Church. He is enunciating the church's position on abortion, a position which most of us. who are members of the Mormon Church, accept personally as a guide in our personal lives and it is an honor to have this opportunity of introducing him.

President McKay is the son of David O. McKay, who was the president of the Church of Jesus Christ of Latter Day Saints, for a period of 17 years in the 1950s and 1960s.

In his own right President David Lawrence McKay is a very distinguished legal scholar and practitioner from Salt Lake City, who is taking, upon the call of the Mormon Church, leave of absence from his profession for 2 to 3 years to direct church activities in some of the Eastern States. He is a very distinguished witness and is more than capable of expressing the church's position. I am delighted to be here and make this introduction. Thank you very much.

Senator BAYH. Thank you very much, Congressman Owens.

I understand that Rabbi Bleich must make a quick plane in order to return to New York. So at the risk of imposing the strong arm of the Chair, may I ask the rabbi to proceed and I apologize to him as well as to the rest of you that this has taken much longer than we had anticipated. However, I think the time involved speaks to the seriousness of the issue which confronts us.

STATEMENT OF RABBI J. DAVID BLEICH, RABBINICAL COUNCIL OF AMERICA, NEW YORK, AND DAVID LAWRENCE MCKAY, PRESIDENT, EASTERN STATES MISSION, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, NEW YORK, AND MRS. JEAN GARTON, MEMBER, NATIONAL BOARD FOR SOCIAL CONCERN OF THE LUTHERAN CHURCH, MISSOURI SYNOD, ACCOMPANIED BY DR. RALPH A. BOHLMANN, EXECUTIVE SECRETARY, COMMISSION ON THEOLOGY AND CHURCH RELATIONS, LUTHERAN CHURCH, MISSOURI SYNOD, AND REV. ROBERT HOLBROOK, BAPTIST FOR LIFE, HALETTSVILLE, TEX.

Rabbi BLEICH. Thank you very much. Mr. Chairman, my name is David Bleich. I am a rosh yeshiva, translated as a professor of the Talmud and assistant professor of philosophy at Stern College. New York.

I would like to ask the indulgence of the committee to submit a written statement, which is rather lengthy, and to confine myself to a brief oral statement because of the fact that my synagogue duties require me to return to New York.

I would also like to ask the indulgence of the committee in answering any questions they have when I have concluded so that I will be able to ask to be excused when that is completed.

Actually I have submitted a written statement which gives in great detail the position of Judaism with regard to abortion and my not presenting it orally is not simply a matter of brevity but because I believe the written statement is valuable for the information of the members of the committee but by the same token I feel that arguments which are specifically sectarian in nature would be out of place in an oral presentation and that is because I view the question of permissiveness with regard to the destruction of fetal life as a fundamental moral question rather than as a specifically or uniquely religious question. Western society has long recognized that man's moral conscience bids him to eschew homicide as an offense against morality. Murder is abhorrent to all and the universally recognized ban against the taking of human life is not predicated upon sectarian doctrines. By the same token, opposition to indiscriminate abortion

is based on the contention that the unborn fetus is a human being and hence, its destruction is tantamount to homicide or manslaughter.

I would like to emphasize that the position of Judaism is that the unborn fetus is to all intents and purposes a person and is entitled to protection of society and, of course of the members of society. This is, in our view, a general moral issue, rather than a matter of particular religious teaching.

I offer these statements for two purposes. No. 1. to point out that the question of abortion is quite properly a general moral one rather than a uniquely religious or uniquely sectarian one and, second, to clarify the position of Judaism with regard to this very fundamental

matter.

I am also concerned with regard to the general moral climate, which has undergone a change in recent years to the point that permissiveness with regard to abortions is now accepted by a great number of people. The result has been a rejection of basic concepts of life and death, which tends to erode the sanctity with which Western society has always regarded human life.

Finally, I would like to make one point with regard to the rights of the fetus. Judaism in particular regards all human life as inviolate. No individual may justifiably take the life of another, other than in the process of self-defense. Fetal life as a form of human life is entitled to the self-same safeguards and protection which society accords to all its members. Abortion is not a private matter between a woman and her physician. It impinges upon the most fundamental right of a third party-the unborn baby's right to life. It is precisely because the unborn baby is defenseless and unable to defend its rights that society has an obligation to guarantee the fetus protection under law.

[The statement of Rabbi Bleich in full follows:]

SUMMARY STATEMENT

The question of permissiveness with regard to the destruction of fetal life is a fundamental moral question. Western society has long recognized that man's moral conscience bids him to eschew homicide as an offense against morality. Murder is abhorrent to all and the universally recognized ban against the taking of human life is not predicated upon sectarian doctrines. By the same token, opposition to indiscriminate abortion is based on the contention that the unborn fetus is a human being and hence, its destruction is tantamount to homicide. This is a general moral issue, rather than a matter of particular religious teaching.

Judaism regards all human life as inviolate. No individual may justifiably take the life of another, other than in the process of self-defense. Fetal life as a form of human life is entitled to the self-same safeguards and protection which society accords to all its members. Abortion is not a private matter between a woman and her physician. It impinges upon the most fundamental right of a third party-the unborn baby's right to life. It is precisely because the unborn baby is defenseless and unable to defend its rights that society has an obligation to guarantee the fetus protection under law.

(Rabbi J. David Bleich is spiritual leader of Yorkville Synagogue-Congregation B'nai Jehuda, and a member of the faculty of Hunter College and Stern College for Women.)

ABORTION IN HALAKHIC LITERATURE

There are three [persons] who drive away the Shekhing from the world, making it impossible for the Holy One, blessed be He, to fix His abode in the universe and causing prayer to be unanswered: ... [The third is] he who causes the fetus to be destroyed in the womb,

for he destroys the artifice of the Holy One, blessed be He. and iHs workmanship. For these abominations the Spirit of Holiness weeps... (Zynur, Shemot 3b)

...

Throughout the history of civilization abortions have been performed on a surprisingly wide scale among even the most primitive of peoples; feticide is singled out as one of the "abominations of Egypt" which the Torah sought to suppress, Despite the clause in the Hippocratic Oath in which the physician declares, “... non will I give to a woman a pessary to procure abortion," artificial interruption of pregnancy, both legal and illegal, remains a widespread practice. While Judaism has always sanctioned therapeutic abortion in at least limited circumstances the pertinent halakhic discussions are permeated with a spirit of humility reflecting an attitude of awe and reverence before the profound mystery of existence and a deeply rooted reluctance to condone interference with the sanctity of individual human life.

In recent years many attempts have been made in the legislative bodies of various states to implement changes in the laws governing the performance of induced abortions. Such proposals are designed to liberalize existing statutes by enlarging the criteria under which legal sanction would be granted for the interruption of pregnancy and destruction of the fetus. The ensuing discussion and the inevitable requests made of individual rabbis and communal spokesinen for an explication of the position of normative Judaism regarding this question has made it imperative that we examine this issue and acquaint ourselves with the teachings of our tradition regarding this area of serious concern.

There can be no doubt that a pregnancy contraindicated by considerations of social desiderata and personal welfare poses grave and tragic problems. We are indeed, keenly aware of the anguishing emotional ramifications of such problems and are actutely sensitive to their moral implications. Yet when we are confronted by these and similar dilemmas our response cannot simply echo humanistic principles and values, but must be governed by the dictates of Halakhah. An authentically Jewish response must, by definition, befound in and predicated upon halakhic prescriptions. To us, in the words of the Chazon Ish, "Ethical imperatives are... at one with the directives of Halakhah; it is Halakhah which determines that which is permitted and that which is forbidden in the realm of ethics." (1)

This review of the halakhic literature concerning abortion has been undertaken as an attempt to refer the reader to the basic sources and relevant responses and to direct attention to the halakhic intricacies upon which the issues revolve. In order to understand the manner in which halakhic rulings evolve it is necessary to focus attention upon the deductive process by means of which definitive pesak s derived from fundamental principles, if the resultant masa u-matan shel halakhah (halakhie discussion) is at times somewhat involved it must be emphasized that only by means of the halakhic dialetic is it possible to appreciate the halakhic process as it is employed le- hasik shemattesa aliba de-hilkhata, in reaching definitive conclusions on the basis of pertinent sources.

BASIS OF THE PROHIBITION

The basic halakhic principle governing abortion practices is recorded in the Mishnah. Oholot 7:6, in the declaration that when "hard travail" of labor endangers the life of the mother an embryotomy may be performed and the embryo extracted member by member. This ruling is cited as definitive by Rambam, Hilkhot Rotzeach 1:9 and Shulkhan Arukh, Choshen Mishpat 425:2. The halakhic reasoning underlying this provision is incorporated in the text of the Mishnah and succinctly couched in the explanatory phrase "for her [the mother's] life has priority over its [the fetus'] life." In the concluding clause of the Mishnah a distinction is sharply drawn between the status of the fetus and that of a newly born infant. The Mishnah stipulates that from the moment at which birth, as halakhically difined. (2) is considered to have occurred no interference with natural processes is permitted since "one life is not to be set aside for the sake of another life."

The inference to be drawn from the incorporation of the justificatory statement "for her life takes precedence over its life" is that destruction of the fetus is prohibited in instances not involving a threat to the life of the pregnant mother.(3) Tosafot (Sanhedrin 59a; Chullin 33a) states explictly that feticide, although entailing no statutory punishment is nevertheless forbidden. (4) Elsewhere we find that according to Rabbinic exegesis (Mekhilta, Exodus 21:12: Sanhedrin 84a) the killing of an unborn chlid is not considered to be a capital crime—an

implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death” (Exodus 21:12). Tosafot, basing himself on the Mishnah, apparently reasons that although feticide does not have occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction on a moral offense.

An offense not entailing statutory punishment is certainly not an anomaly. Many such prohibitions are known to be Biblical in nature. Others are recognized as having been promulgated by the Rabbis in order to create a "fence" around the Torah or in order formally to prohibit conduct which could not be countenanced on ethical grounds. Under which category is the prohibition against feticide to be subsumed? Is this offense Biblical or Rabbinic in nature? At least three diverse lines of reasoning have been employed in establishing the Biblical nature of the offense. R. Chaim Ozer Grodzinski demonstrates that the remarks of Tosafot, taken in context, clearly indicate a biblical proscription rather than a Rabbinic edict. (5) Feticide, as Tosafot notes, is expressely forbidden under the statutes of the Noachidic code. The Noachidic prohibition is derived by Rabbi Ishmael (Sanhedrin 57b) from the wording of Genesis 9:6. Rendering this verse as "Whoso sheddeth the blood of man within man shall his blood be shed" rather than "Whoso sheddeth the blood of man by man (i.e. through a human court) shall his blood be shed." R. Ishmael queries, "Who is a man within a man? . . . A fetus within the womb of the mother." Tosafot deduces that this practice is prohibited to Jews as well by virtue of the Talmudic principle "Is there anything which is forbidden to a Noachide yet permitted to a Jew?" Application of this principle clearly establishes a Biblical prohibition.

R. Meir Simchah of Dvinsk, in his Biblical novellae, Meshekh Chokhmah, Exodus 35:2, offers an interesting scriptural foundation for this prohibition demonstrating that, while not a penal crime, the killing of a fetus is punishable by "death at the hands of heaven." (6) He observes that Scripture invariably refers to capital punishment by employing the formula "mot yumat-he shall surely be put to death.” The use of the single expression “yumat—he shall be put to death" as, for example, in Exodus 21:29 is understood in Rabbinic exegesis as having reference to death at the hands of heaven. Thus, R. Meir Simchah argues, the verse “. . . and he that smiteth a man shall be put to death-yumat” (Leviticus 24:21) is not simply a reiteration of the penalty for homicide but refers to such destruction of life which is punishable only at the hands of heaven i.e. the killing of a fetus. Reference to the fetus as "a man" poses no difficulty since the fetus is indeed described as "a man" in the above cited verse (Genesis 9:6) prescribing death for feticide under the Noachidic code.

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Most interesting is the sharply contested view advanced by R. Elijah Mizrachi in his commentary on Exodus 21:12 that in principle feticide and murder are indistinguishable. The Biblical ban on murder extends equally to all human life, including, he claims, any fetal life which, unmolested, would develop into a viable human being. In theory, continues Mizrachi, feticide should be punishable by death since the majority of all fetuses will indeed develop into viable human beings. (7) In practice it is technically impossible to impose the death penalty because punishment may be inflicted by the Bet Din only if the crime is preceded by a formal admonition. Since some fetuses will never develop fully, a definite admonition cannot be administered because it cannot be established with certainty that any particular fetus would develop in this manner. Noahides, on the other hand, required no such admonition. Therefore since the major number of fetuses are viable feticide is to be punished by death under the Noachidic dispensation.

Differing from these various views are the opinions of the many scholars who have espoused the diametrically opposite position that the prohibition against feticide is Rabbinic in origin. There is evidence that so early an authority as Rabbenu Nissim is to be numbered among the latter group. Reb Chaim Ozer cites Rabbenu Nissim's explanation of the reason for the ruling of the Mishnah (Eruchin 7a) that the execution of an expectant mother must not be delayed in order to allow the delivery of her child. Rabbenu Nissim (commentary on Chullin 58a) fails to offer the explanation adopted by other commentators: namely, that the fetus is regarded as but an organic limb of the mother having no inherent claim of its own to inviolability and hence considerations of its welfare cannot interfere with the statutory provision for immediate execution of the condemned in order to avoid subjecting the convicted criminal to agonizing suspense between announcement of the verdict and execution of the sentence.