11/12/2012 05:16 pm ET Updated Jan 12, 2013

Is There a War on Women's Health, and What Does Judaism Say About It?

On Oct. 25, the Louis Finkelstein Institute for Religious and Social Studies of The Jewish Theological Seminary in New York City hosted a panel discussion titled, "Is There a War on Women's Health, and What Does Judaism Have to Say About It?" Panelists included Dr. Adrienne Asch, director of the Center for Ethics at Yeshiva University; Dr. Lisa Soleymani Lehmann, director of the Center for Bioethics at Brigham and Women's Hospital; Andrea Miller, president of NARAL Pro-Choice New York; moderator Kathleen Peratis, chair of the Public Interest Committee and Sexual Harassment Practice Group of Outten & Golden LLP; and Rabbi Sharzer, who summarizes the discussion below.

Is there a war on women's health? Who is waging it? What is its goal?

The expression "war on women's health" may have become a slogan in our recent presidential campaign, but it is more than just a catchphrase. The "war" is the result of a conflation of opposition to the Affordable Care Act ("Obama-care") with the longstanding opposition to women's reproductive rights: those opposed to aspects of the ACA unrelated to women's health issues have been using parts of the act that require access to contraception, for example, to make common cause with groups opposed to abortion in order to advance both agendas. Much of the gender bias that exists in the way medicine is practiced in the United States was corrected by elements in the ACA, even some not specifically related to reproductive health, and efforts to repeal it are of concern.

The issue of abortion is a unifying factor in the war on women's health. What is the Jewish attitude toward abortion? Judaism does not recognize personhood of a fetus until the moment of birth. For the first 40 days following fertilization, an embryo has essentially no moral status (it is considered "mere fluid"); and from 40 days until birth, it is considered "like the thigh of the mother" (i.e., a part of a woman's body). Several conclusions follow: when a woman's life is in danger, abortion is not a matter of choice, but is mandatory, morally and religiously, just as any lifesaving medical procedure would be. Abortion is also a religiously acceptable choice when the pregnancy threatens a woman's physical or psychological health. From a Jewish standpoint, efforts by government to limit or criminalize these decisions are an infringement of religious freedom. Just as it would be wrong to require a woman to terminate a pregnancy in violation of her religious beliefs, it is equally wrong to force a woman whose religious beliefs demand or allow termination to continue with her pregnancy. The idea that a fertilized egg or a fetus is a person with all the rights of personhood is not a biological fact, it is a religious belief. As such, it should not be imposed by the government.

Is there a place for conscientious objection by individuals or institutions?

Providers of contraception or abortion often do so as a matter of conscience, and we need to allow conscientious provision of care, especially if we allow conscientious refusal. The whole notion of "conscientious objection" by health care providers first came into public discourse in the aftermath of Roe v. Wade. Prior to that, individual physicians managed to avoid doing sterilizations or therapeutic abortions (which were always legal) that violated their religious scruples, but did so in a way that did not preclude the patient from getting the medically necessary care. Health care providers function under the sanction of society, and it was felt by some but not all panel members that, by virtue of that sanction, they have a responsibility and obligation to provide the medically appropriate care that has been deemed legal. Members of the panel were willing to accept an individual's refusal to provide certain treatments in a place like New York City, where the care could easily be provided by someone else. However, in locales where refusal would make it impossible or extremely burdensome for the patient to get the care, the panel was divided as to whether the provider was obliged to provide.

The great 12th-century Jewish physician and rabbinic sage Maimonides wrote that, although his role as rabbi was to inform people as to what would benefit or harm them in the next world, his job as physician was to advise them as to what would benefit or harm them in this world. Even if a therapy violated religious teachings, it was his responsibility as a physician to provide both that information and the treatment.

Does an institution have a conscience?

The refusal of institutions to follow provisions of the law is particularly problematic. There was a willingness on the panel to accept refusal to offer care by religious institutions such as the Catholic Church or houses of worship. Some were also willing to accept refusal by religiously affiliated institutions, such as hospitals or schools. None were willing to accept refusal by entities such as businesses, based on the religious values of the owner or CEO. As with individual providers, there was a greater willingness to accept refusal based on religious views when that did not create hardship for patients or employees who did not share those views. This was especially true for institutions that benefit from public funds such as Medicare. All agreed, however, that it would be preferable to encourage more secular institutions than to require religious institutions to provide treatments that violated their beliefs.

Although the views of the panel members differed with regard to specific medical therapies, and individual or institutional obligations, there was unanimous concern that many of the currently proposed regulations and legislative initiatives would adversely affect both women's health and their reproductive and religious freedoms.

Rabbi Leonard A. Sharzer, M.D., is associate director for Bioethics of the Louis Finkelstein Institute for Religious and Social Studies of The Jewish Theological Seminary in New York City.