Rabbi Charles P. Sherman
January 23, 2004
Roe At 31 – New Challenges, Liberal Judaism’s Responses
As I struggled all week with this sermon, I tried to figure out why. Yesterday was the 31st anniversary of the historic Roe vs Wade Decision. I have been speaking about the subject of abortion for more than half of my life. I began my rabbinic career as a counselor and advocate for abortion rights under the auspices of Clergy Concerned for Women with Problem Pregnancies and Planned Parenthood in a state with a 55% Catholic population, where such counseling was illegal. I am proud that I was one of the founders of what is today called The Oklahoma Religious Coalition for Reproductive Choice. I have spoken, debated, testified, organized, advocated, fund-raised and, frankly, I am tired – and I am sure that some – if not many among you – are as well.
Many of us thought that Roe vs Wade was going to guarantee the right of a woman to have an abortion performed when she believed it was in her best interest, and that we could now turn our attention and concern, our social conscience to other issues. It has not happened. No topic raises people’s hackles more than abortion. The debate is still dead-locked and rancorous . According to reliable polls, Americans are conflicted. About three-quarters of Americans say they abhor abortion, and at least as many believe abortion ought to be available. What I think the vast majority of Americans are saying is that while they are opposed to abortion and would not choose to have an abortion themselves, they still believe that a woman has the right to choose.
Many of those who oppose abortion believe that it is murder. That is a position often based on the theological perspective that the fetus has the same status as the mother. Not so, never so in Judaism. Jewish law holds that a fetus is not a person and that the destruction of a fetus is not murder. Which is not to say that all Jews believe in "choice" – they do not. Orthodox Jews are very restrictive on the subject of abortion, normally limiting that right to instances when the life of the mother is endangered by the pregnancy. Reform and Conservative Jews tend to be much more liberal on the subject, arguing that the life of the mother might be endangered in many ways and that the choice about saving her life is hers. At the same time, Judaism treats abortion as a very serious matter. While a fetus is not full-fledged life, it is a potential life, and potential life is not to be treated lightly. We have distributed, as you came in this evening, three statements which I think succinctly summarize the non-Orthodox Jewish position on abortion, with biblical and rabbinic sources. I urge you to read them when you get home. I do not wish to repeat information I’ve presented before, nor add to the license plate or sound-bite rhetoric surrounding this issue.
One major change which has occurred in the 31 years since Roe vs Wade is that there is now a whole new generation of people who do not know what it is like to live at a time when abortion is illegal and a generation of doctors who have not had to deal with the after-effects of illegal abortions. I fear that those who do not remember the past may be doomed to repeat it. So permit me to share with you a little history and what I think is the status of reproductive freedom 31 years after Roe vs Wade. It is not as rosy a picture as I had hoped. Abortion was legal in the United States for more than 200 years, from 1607 to 1828. The drive to outlaw abortion in the 19th century really had little to do with morality; doctors were beginning to professionalize, so they pushed for a ban on abortions as a remedy for the bad medicine they saw being practiced by snake oil salesmen and well-intended midwives.
Unfortunately, this successful effort to make abortion illegal simply drove it into back alleys where, according to some estimates, as many as two million abortions a year were performed. Now even if that number is only half accurate, it should sober up all those who long for the "good old days" prior to Roe vs Wade. The movement to legalize abortion in the 1970's was motivated by the same logic which had lead to its ban – the desire to eliminate botched abortions.
In 1930, abortion was the cause of death for nearly 2,700 American women representing 18% of all maternal deaths; unreported deaths from illegal abortions probably made the actual number much higher than that. In 1965, illegal abortion accounted for an estimated 5,000 deaths a year, almost 17% of all deaths related to pregnancy and childbirth and – I consider this an important addition – 55% of those who died were women of color.
In 1973, when Roe vs Wade was passed, the risk was 3.4 deaths per 100,000 abortions. By 1985, it had dropped to .4 deaths per 100,000. Today, of the 1.5 million abortions done in the United States each year, only 6 result in a mother’s death. By comparison, of the 1.5 million abortions done in Mexico, where abortion is illegal, 140,000 women die.
Believe it or not, with all of the advances in birth control, almost half of the 6 million American women who become pregnant each year did not plan to. If current rates are sustained, 43% of American women will have an abortion sometime in their life. That would mean that abortion is as common a life experience for women as divorce, and three times more common than breast cancer. More than twice as many woman get abortions as get college educations.
Of the 1.5 million abortions each year in the United States, 91% occur during the first trimester, 9% in the second trimester and .01 in the third trimester. Of those abortions performed in the second and third trimesters, they tend to be very young teens with irregular menstrual periods, or teens in total ignorance or denial, or women in their 40's who mistakenly thought they had entered menopause and did not realize they were pregnant for some time. Other delays in seeking abortions were by women needing time to win over family members for approval or needing time to raise the money to pay for an abortion. Also, some of those later-term abortions are performed after amniocentesis testing revealed some problematic condition. It is estimated that after the test results are known, 90% of spinal bifida pregnancies and 95% of Down Syndrome pregnancies are terminated.
In 1973, pre Roe vs Wade, only 38% of abortions were performed at or before 8 weeks of pregnancy. Today, as I just mentioned, 91% are performed during the first 12 weeks – the first trimester – and 96% take place during the first 15 weeks. You see why the safety record has improved so dramatically. Or to put it differently, why the number of abortion-related deaths has almost disappeared.
Despite this fact, abortion remains the most controversial medical issue of our day. The hard-won right of women to control their own bodies is still at risk, still under attack by religious extremists, political forces, and even violent radicals. Tonight I shall discuss only four of today’s challenges to a woman’s reproductive freedom. First is the courts. The most recent ruling of the Supreme Court was decided by a five-to-four vote. Just one new Supreme Court Justice could either overturn or further erode Roe vs Wade.
But the Supreme Court is not the only arena where concern for the future of choice is warranted. Another Supreme Court decision, while preserving the core of Roe, gave broadened power to lower federal court judges whose factual determinations about a particular restriction on choice ordinarily are not subject to appellate review. Therefore, while the ultimate future of a woman’s right to choose rests with the Supreme Court, lower federal courts increasingly must be relied upon to be watchdogs for reproductive freedom.
In 8 of the 13 circuits, anti-choice judges are already the majority. Reproductive rights cases are often decided in these courts and affect women in the states they cover. President Bush, conceivably – no pun intended – could appoint more than 30% of Federal Appeals Court judges and two or three Supreme Court Justices. President Bush has said that he will model nominees after Justices Scalia and Thomas, the Supreme Court’s most vocal opponents of the Roe decision. Remember that Supreme Court and other Federal Judges are appointed for life. So this President’s appointments could impact the freedom to choose for decades to come.
A second challenge to enjoying the rights conferred by Roe vs Wade is an economic one. The Hyde Amendment, passed in 1976, restricted payments for abortions with Federal Funds. It was and still is a heartless effort at the abrogation of the Supreme Court decision. It illustrates the distance between principles and practices. We are still a two-class nation – people of color and whites: poor and prosperous. In real life, freedom of speech never meant much if hunger made you too weak to talk. And freedom of choice does not mean much if you haven’t the money to travel and pay for an abortion. I mention travel because 87% of all counties in America have no abortion provider today. To prohibit or severely limit the use of public funds to pay for abortions abridges and denies the right to an abortion and discriminates especially against low income, young and minority women.
Challenge number three. Beyond the economic barriers there are all kinds of other obstacles which the Religious Right and Anti-Choicers have been slowly putting in place, obstacles such as waiting periods, forced counseling, parental consent. Let’s just consider parental consent tonight, because it sounds so reasonable that a minor female ought to have her parents’ consent to such a major decision as having an abortion. Those of us who are parents know about immaturity and the desirability of parental involvement. This push for requiring parental notification or consent for minors often also involves services such as Family Planning, so it is not just for abortion. And those who promote it say it is a way of safeguarding the health of teenage females. Well, I do not think so; it may actually do more harm than good.
900,000 American teens get pregnant annually. Studies indicate that the overwhelming majority of young women who become pregnant already seek their parents’ advice and help. Those who do not, usually have compelling reasons for not doing so. Many of them are from troubled homes where violence is common place. One Utah teenager was forced to tell her father that she wanted to abort the pregnancy he had caused – he shot her in the head and killed her.
Many teens justifiably fear that their parents will kick them out of the house or otherwise force them to do things they do not want to do. Some young women do not tell their parents for fear the parents will insist that they have an abortion, while others fear that their parents will insist that they carry to term. Many young people do not want to tell their parents simply because they are afraid of disappointing them. Some youngsters from broken homes may not even know where a parent is or they may not want an absentee parent involved in their lives at all, especially in that most personal decision of whether to terminate a pregnancy.
But the bottom line for me always is that teenagers who do not want to tell their parents will find alternative ways to terminate their pregnancies, and those ways usually are not safe. A young woman in Florida shot herself in the stomach to abort a fetus. In Ohio, 17-year old Becky Bell got an illegal abortion rather than ask her parents for help. She died from complications three days later. Young women who want abortions will get them regardless of the law. The question is whether they will get safe abortions or not.
Most parents would prefer knowing that their daughter is planning an abortion. But if she should decide to have an abortion without informing them, parents overwhelmingly want her to have access to a safe abortion. The one notification no parents want to receive is a physician telling them in the emergency room: "Sorry, we could not save her."
The final challenge I will deal with tonight is access to abortions. I must tell you that the changes in modern healthcare, due to pressure to reduce costs and changing technology, have presented challenges I wasn’t even aware of. My study this past week has taught me that 59% of all abortion doctors are at least 65 years old. That means that nearly two-thirds of doctors providing abortions are over the retirement age. The percentage of OB/GYNs willing to perform abortions dropped from 42% in 1983 to 33% in 1995.
It gets even worse! Only 12% of hospital residency programs now routinely teach abortion. Some medical schools do not even dare to mention abortion, much less teach the facts of abortion. A New York Times journalist wrote: "My wife finished medical school last year. She never heard the word ‘abortion’ uttered in a classroom. Which medical school was it that neglects to expose students to what is one of the most common surgeries among American women? Yale."
The overwhelming majority of abortions are performed by a small group of doctors. About 2% of OB/GYNs carry almost all of the burden performing more than 25 abortions a month each. One study indicated that in all of North Dakota there is one doctor – one doctor – who performs abortions. Who is going to replace these abortion providers in the years to come?
Due to the massive changes facing healthcare, many hospitals are merging in order to lower costs and increase efficiency. Some estimates claim that, over the past three years, 40% of hospitals in our country have entered into or completed such mergers. They are happening everywhere.
Now what lifts that bit of news off the business page and brings it into this message is that many of these mergers are taking place between community hospitals and religious hospitals. In these cases, more and more often, the religious hospitals are demanding that the community hospital follow their rules and regulations – rules and regulations which often bar certain procedures, services and treatments, including abortion.
It does not matter that the community hospital has provided these services for a hundred years and that people in the community have come to rely upon them, it does not matter that not everyone in the community is of the same faith tradition, it does not matter that not everyone in town agrees with the rules. What matters is that the religious hospital imposes and enforces its rules.
I am going to be very blunt. While there are Baptist and Adventist hospitals which restrict certain health services, the most significant religious influence on American healthcare delivery comes from the Roman Catholic healthcare systems. Friends, welcome to Tulsa, Oklahoma. St. John Medical Center and St. Francis Hospital are our two largest hospitals and are involved in buying-up and merging with hospitals in small communities throughout our region.
Today Catholic hospitals provide 15% of all hospital care, about 600 hospitals nationwide. They are our nation’s largest not-for-profit provider of health care, and all of these hospitals have care policies governed by a single, overriding philosophy laid out in what is known as "Ethical and Religious Directives for Catholic Health Care Services." Under these Directives, hospitals are forbidden to provide fertility treatments, contraception of any kind, sterilizations and abortions.
Obviously, as long as there are both religiously affiliated hospitals and secular hospitals in a community, patients of all faiths and those who are non-religious can continue to have a choice about the healthcare services they want. But when a provider with restrictive religious rules dominates most or all health care services in one market, patients are in danger of losing their access to a full range of health services. Today, there are 76 Catholic sole-provider hospitals, which means a hospital in a community with no other hospitals within a reasonable distance. In many of these communities, Catholics make up less than 1% of the population, yet the Ethical and Religious Directives for Catholic Health Care Services deny access to reproductive health care to everyone. And the sad part is that this loss occurs without people even realizing it has happened.
I think the lesson is very clear. If a merger is going to occur, we must find out what the results of that merger would be and if they are unacceptable, we must make our protests heard. Community activism is key to protecting our rights not to have someone else’s religious values imposed on our health care.
Friends, I am tired of worrying about and talking about the abortion issue. I am disappointed that more than three decades after Roe vs Wade things are not substantially better than they are, and I fear that things may actually be getting worse in this area. The debate on abortion is so polarized that what for me are some of the simplest truths are being lost. The truth that a woman’s body does not belong to the government. The truth that a woman’s body does not belong to any religious faith community. The truth that a woman’s body does not belong to someone else’s conscience. The truth that a woman’s body belongs only to that woman. We live in an imperfect world and abortion is always a difficult choice, but I believe that a woman has the right to make that choice within the sacred precincts of her own soul.
I placed the ad from yesterday’s Tulsa World on the door to our sanctuary with the Jewish names underlined. I am heartened that such a large percentage of the signatories are Jews. I am proud that 34 of the 38 Jewish signatories are primary members of Temple Israel, and I am proud of our Temple Sisterhood and our Temple Social Justice Committee. We are pro-choice, not in spite of our faith, but because of it.
This week we marked both Martin Luther King, Jr.’s birthday, and the 31st anniversary of Roe vs Wade. With all due respects to Dr. King, let me share with you the vision of this religious teacher who has now been involved for more than half of his life in this battle:
I dream of a time and a place where every woman – rich or poor, rural or urban, single or married, teenager or middle-aged – will have access to the knowledge and means of controlling her reproductive capacity.
I dream of a time and place where if that knowledge and means fail, as they sometimes will, every woman – regardless of color, class or geography – will have a medical facility to terminate her unwanted and unplanned pregnancy.
I dream of a time and place where clinics of choice will be communities of compassion, open and inviting, without fear and utterly private, quiet spaces where the shrill noises of harassing and intolerant protests will be silent.
I dream of a time and place where people who care about this issue will stop yelling across barricades, will lower the decibels of our sloganeering defenses and sit down together to face the complex moral issues which medical technology will continue to present us.
May God strengthen us to continue to work for the day when the still unfulfilled promises of Roe vs Wade will become realities for our children and grandchildren. A sign carried by a woman in a pro-choice march read: "Keep Abortion Sate and Legal, and Pray That No One You Love Ever Needs One." To which we all can say, Amen.
