1 The term “clash of absolutes” is taken from Lawrence Tribe, Abortion: The Clash of Absolutes (New York: Norton, 1990) (“Tribe, Abortion”). Tribe's specific compromise proposal focuses on greater social attention to pregnancy prevention and the availability of contraceptives. Others have emphasized the need for dialogue and empathy toward the positions of both sides; see, e.g., Colker, Ruth, “Feminism, Theology, and Abortion: Toward Love, Compassion, and Wisdom,” 77 Cal. L. Rev. 1011 (1989); and Faye D. Ginsburg, Contested Lives: The Abortion Debate in an American Community (Berkeley: University of California Press, 1989). In the United States activists on both sides of the issue are deeply divided over the wisdom and legitimacy of compromise. The Christian Action Council has abandoned its boycott of corporate sponsors of planned parenthood in favor of an extensive network of “crisis pregnancy centers.” In response to this and other compromise moves, Randall Terry, the founder of Operation Rescue, has stated that the days in which leaders from different (anti-abortion) factions were gracious to one another are over: “We're taking the gloves off. We are not going to tolerate cowardice and compromise in our camp. … We want to change the face and (most important) principles of the pro-life movement-God is, and he has spoken.” Lynn Smith, “Bowed but Unbroken?”Los Angeles Times, 22 March 1993?, p. EL. Similar divisions are currently apparent in the pro-choice movement, primarily with regard to the Freedom of Choice Act and the nature of the concessions necessary for its passage. See, e.g., Robin Toner, “Success Spoils Unity of Abortion Rights Groups,” N.Y. ‘limes, 20 April 1993, p. A16.CrossRefGoogle Scholar

2 Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge: Harvard University Press, 1987) (“Glendon, Abortion and Divorce”).Google Scholar

3 Roger Rosenblatt, Life Itself: Abortion in the American Mind (New York: Random House, 1993).Google Scholar

4 Lawrence Tribe has warned against the incompatibility between Glendon's solutions and fundamental American values and warned against the “unacceptably high toll” her approach would exact “on confidence in the rule of law and in the integrity of the legal system as a whole.” Tribe, Abortion 73-74. Richard Epstein questioned the normative foundations of Glendon's approach and argued that her effort at compromise lacks logical coherence. Richard Epstein, Book Review: “Rights and ‘Rights Talk,”‘ 105 Haw. L. Rev. 1106, 1121 (1992). Arguments against the political feasibility of Glendon's model have focused on the improbability of abortion compromises under the anti-abortion tendencies of many state legislatures; Jane Maslow Cohen, Review Essay: “Comparison-Shopping in the Marketplace of Rights,” 98 Yale L.J. 1235, 1253 (1989). On the irrelevance of Glendon's compromise proposals to the concerns of those who care most deeply about abortion, see Sylvia A. Law, “Abortion Compromise-Inevitable and Impossible,” 1992 U. IU. L. Rev. 921, 938-39.Google Scholar

5 See Heleen F. P. Ietswaart, Book Review: Incomplete Stories,” 69 Boston U.L. Rev. 257 (1989), and Leslie Pickering Francis, Book Review: “Virtue and the American Family,” 102 Harv. L. Rev. 469 (1988), for the argument that Glendon's account of the Dutch, German, and French models are inaccurate on several grounds.Google Scholar

6 Martha L. Fineman, “Contexts and Comparisons,” 55 U. Chi. L. Rev. 1431, 1433 (1988).Google Scholar

7 For an analysis of these cleavages and current competing pressures in Israeli society, see Dan Horowitz & Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel (Albany: State University of New York Press, 1989) (“Horowitz & Lissak, Trouble in Utopia”).Google Scholar

8 The term “constitutional common law” is taken from Amos Shapira, “The Israeli Supreme Court and Human Rights,” in Daniel Elazar, ed., Constitutionalism: The Israeli and American Experiences (Lanham, Md.: University Press of America, 1990).Google Scholar

9 Much of this area is currently in flux. In 1992 the Israeli Knesset enacted Basic Law: Human Dignity and Freedom, 1391 S.H. 150 (1992) (in Hebrew). The law provides that no person's life, body, dignity or property shall be violated and includes, among other guarantees, protections for private domains and personal communications. Under the law such guarantees can be infringed “only by a law that conforms to the values of the State of Israel-which is a Jewish and democratic state-is directed to a worthy purpose, and only to the extent necessary.” See David Kretzmer, “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?” 26 Is. L. Rev. 238, 242, 248, for the argument that the new law allows for some forms of judicial review. Justice Aharon Barak, the current Deputy Chief Justice of the Israeli Supreme Court, off the bench has described the new law as a “constitutional revolution” and a new framework for the invalidation of some Knesset laws. AharonCrossRefGoogle Scholar

Abortion in Israel 317 Barak, “The Supreme Court's Weighty Task”]erusalem Post, 24 May 1992. The Israeli Supreme Court is yet to rule on this question.Google Scholar

10 The Isreal Supreme Court, sitting as a High Court of Justice, exercises original jurisdiction over petitions against governmental and administrative actions.Google Scholar

11 Horowitz & Lissak, Trouble in Utopia.Google Scholar

12 The primary paradigm case and the sole biblical reference in this context is Exodus 2122-23. The passage describes a situation in which a pregnant woman is accidentally injured as a result of a fight between two men. The text distinguishes between a situation in which no catastrophe occurs and the man is assessed a fine and one in which a catastrophe does occur and life is given for life. Rabbinic interpretations have viewed “catastrophe” as harm to the mother and thus concluded that the damage to the fetus was a civil and not a criminal wrong. Talmudic and Rabbinical discussions offer examples relating to a fetus who endangers a woman's life during childbirth, a pregnant woman who is to be executed, and the legal capacity of a fetus to receive gifts and acquire property. See Dena S. Davis, “Abortion in Jewish Thought: A Study in Casuistry,” 60 (2) 1. Am. Acad. Religion 313 (1992), and David Kramer, “Jewish Ethics and Abortion,” 8 (1) Tikkun 55 (1993).Google Scholar

13 The supremacy of maternal life to that of the fetus continues until the fetus's head or major body part has emerged. After the emergence of the head, the fetus assumes human status in most respects. See lmmanuel jakobovirs, Jewish Medical Ethics (New York: Philosophical Library, 1959).Google Scholar

14 See David M. Feldman, Birth Control in Jewish Law (New York: New York University Press, 1968).Google Scholar

15 Speaking to this issue, Rabbi Pinhas Stolper, executive director of the Union of Orthodox Jewish Congregations, stated in 1989: “We do not identify with those groups that feel all abortion is murder…. Unlike the Catholic position … Halacha [jewish law] takes different views of the fetus at different times of development. In the Jewish view, the supreme need is to consider the life, health and well being of the mother.” Walter Ruby, “The Organized American Jewish Community Takes a ‘Freedom of Choice’ Line on Abortion,”Jerusalem Post, 14 March 1989, p. 7. Similar sentiments were expressed by Agudath Israel of America, an ultra Orthodox lobbying group which filed an anti-abortion brief in Webster v. Reproductive Health Services, 492 US. 490 (1989), when it refused to support a bill that would have excluded religiously mandated abortion from religious freedoms protected under another proposed federal statute from state encroachment. “Agudath Israel Objects to Religious Freedom Act,”Jewish Admate, 28 Feb. 1992, at 6.Google Scholar

16 A 1974 report issued by a committee which drafted revisions to the Israeli abortion code included two rabbinical opinions on the Jewish status of abortion. Both opinions link the permissibility of abortion to the age and circumstances of the pregnancy, and both suggest a disapproving yet flexible attitude. Report of the Committee for the Study of the Ban on Induced Abortions, 17 (4) Briyut Hatsibui 425, 495-505 (1974) (“Committee Report, Briyut Harsibui”) (in Hebrew).Google Scholar

17 See Efrat, November 1962, p. 4 (in Hebrew). The cover of this newsletter features a picture of a couple with their ten children. The caption reads “Happiness and Strength in the home of the Tawik family. May everyone be like them.”Google Scholar

18 12 Yedion–A Quarterly for Family Affairs and the Encouragement of Procreation among the Jewish People (translated title), pp. 24-25 (1983) (“Yedion”) (in Hebrew). The publication is an Efrat newsletter.Google Scholar

19 One such immigrant, a statistician named Haim Hazan was appointed under pressure by Agudat Israel, an ultra orthodox political party, as special abortions consultant to the Minister of Health during the early 1980s.Google Scholar

20 Shlomo-Yona Tuaf, “Religious Justifications Ought Not Be Used in Front of the General Public” (translated title), 17-18 Yedion 3 (1984) (in Hebrew).Google Scholar

21 Susan Poizner, “The Abortion Debate Goes On,”Contact (Jerusalem Post Magazine), 12 July 1991, and Carl Alpert, “Israel Has Abortion Problems Too,”Greater Phoenix Jewish News, 31 Jan. 1992, p. 8.Google Scholar

22 Delila Amir & D. Navon, The Politics of Abortion in Israel (translated title) 50 (Tel Aviv: Pinchas Sapir Center for Development, Tel Aviv University, 1989) (“Amir & Navon, Politics of Abortion”) (in Hebrew).Google Scholar

23 Id. at 17-37.Google Scholar

24 Both the magnitude of alternative cleavages and the marginality of gender to the political identity of Israeli women were clearly reflected in the political fortunes of a party that ran on an exclusive women's rights platform during the 1992 general elections. The Party received a total of 2,886 votes, or 0.1% of the total votes cast, an electoral result that placed it just below a party that promoted the professional interests of taxi drivers and far short of the 39,253 votes necessary for representation in the current Knesset. Asher Wallfish, “Final Election Vote Tally Marginally Adjusted,”Jerusalem Post, 29 June 1992, p. 3.Google Scholar

25 Under Jewish law, divorce depends on the consent of both parties. However, religious sanctions against extramarital relations drastically discriminate against married women. As a result, women are significantly disadvantaged by the mutual consent requirement.Google Scholar

26 Glendon, Abortion and Divorce (cited in note 2).Google Scholar

27 Between 1979 and 1990, the lowest number of recorded hospital abortions was in 1981 (14,514) and the highest in 1982 (16,829). Latest available statistics are for 1991 and show a total of 15,509 hospital abortions. Statistical Abstract of Issael, No. 42, sec. 3.21 (1991).Google Scholar

28 Lotte Salzberger, Sarah Magidor, Amy Avgar, & Janet Baumgold-Land, “Patterns of Contraceptive Behavior Among Jerusalem Women Seeking Pregnancy Counselling 1980-1989” at 14 (Hebrew University of Jerusalem, Paul Baerwald School of Social Work 1991). (“Salzberger et al.‘Parterns of Contraceptive Behavior’”). Although instances of medical malpractice in the private abortion area have been the object of significant media attention, most private abortions are performed in safe and professional medical settings. Id. at 15.Google Scholar

29 Amir & Navon, Politics of Abortion 50.Google Scholar

30 See Dan Shnit, “Induced Abortion in Israeli Law,” 15 Ixaeli Yearbook on Human Rights I55 (1985).Google Scholar

31 A headline in the 31 Aug. 1962 edition of the Israeli paper Yediot Ahronot stated, “Doctors Who Perform Abortions Will Have to Go Underground, Can Expect Prosecutions and License Revocations.” Cited in 4 Efrat 44 (1965).Google Scholar

32 Salzberger et d., “Patterns of Contraceptive Behavior” at 12.Google Scholar

33 Dov Friedlander, “Population Policy in Israel,” in Bernard Berelson, ed., Population Policy in Developed Countries (New York: McGraw Hill, 1974).Google Scholar

34 Lesley Hazleton, lsrmli Women: The Reality behind the Myths (New York: Simon & Schuster, 1977).Google Scholar

35 Committee Report, Briyut Hatsibur (cited in note 16).Google Scholar

36 The law is codified as Penal Amendment (Interruption of Pregnancy) 1977, 31 Laws of the state of isreal 82.Google Scholar

Abortion in Israel 325Google Scholar

ity licensed gynecologists who performed the abortion in a recognized medical institution after it was approved by a pregnancy termination committee. Such committees, to consist of two physicians and a registered social worker, were to operate in and under the supervision of recognized medical institutions.Google Scholar

Committees were authorized to approve abortions under one of the following circumstances: (1) the woman is under marriage age (17) or over 40; (2) the pregnancy resulted from relations prohibited by the criminal law, incestuous relations, or extramarital relations; (3) the child is likely to have a physical or mental defect; (4) continuance of the pregnancy is likely to endanger the woman's life or cause her physical or mental harm; (5) continuance of the pregnancy was likely to cause grave harm to the woman or the children owing to the difficult family or social circumstances of the woman and her environment.Google Scholar

C. The Socioeconomic Conditions ClauseGoogle Scholar

The most controversial element in the new law was the provision, patterned after the British law and known as the social clause, that allowed committees to base abortion approvals on a woman's social environment and economic circumstances. The clause was directed at married women who did not fall under any of the other exemption categories. It was hotly contested in the debates of the abortion prohibitions committee, and its inclusion in the bill this committee ultimately produced proved to be crucial in gaining the support of women's groups who were ambivalent about the need and wisdom of legislative reform and the potential for stricter enforcement against private abortion providers.Google Scholar

The primary victims of the ambiguous legal status of abortions under the old Israeli law were women who could not afford abortions in the illegal but relatively safe37 private market and did not qualify for them under the limited medical categories recognized by the sick fund committees. Most women who came before these committees were of low socioeconomic background and it was they who would gain the most from a broadening of recognized grounds for abortion. Looking back to her legislative efforts in this area, Ora Namir, an active proponent of the bill in the late 1970s and the current Minister of Labor and Welfare, stated:Google Scholar

The abortion law was primarily enacted because of the social conditions provision. Well off women, including religious well off women, don't need laws, they know where to go and how to protect themselves. We thought it was important, beyond the question of principle,Google Scholar

37 See Salzberger et d., “Patterns of Contraceptive Behavior” at 12.Google Scholar

38 Committee Report, Briyut Hatsibur at 467.Google Scholar

39 Protocols of Knesset debate on amendment 30 to the criminal code, 181st meeting of the 12th Knesset, 28 May 1990.Google Scholar

40 Since 1977 Congress has severely restricted federal Medicaid funding for abortions in a series of amendments to congressional appropriations bills known as the “Hyde Amendment.” The Supreme Court upheld the Amendment in Harris v. McRae, 448 U.S. 297 (1980). The subject of public funding for abortion is currently again on the agenda in the context of President Clinton's plans for health care reform.Google Scholar

41. Government subsidized sick funds are the primary vehicle for public funding of abortion under the current law. Such funding is available only when abortions are approved for a medical cause, i.e., fetal abnormalities or age of the pregnant woman or physical or emotional risk to her. When abortions are legally approved under other exemption categories, funding for needy women can sometimes be obtained from various public welfare organizations. The price for a hospital abortion is around $(US)350 (1,200 Israeli shekels).Google Scholar

42 Shapiro Yonathan, Democracy in Israel (translated title) (Ramat-Gan: Masada, 1977) (in Hebrew).Google Scholar

43 The social workers' union was among the most vocal opponents of the Cancellation of the social clause which until then created a professional rationale for the presence of social workers in pregnancy termination committees. In an article focusing on the message of social equality implicit in the social clause, the then secretary general of the social workers union stated: “The pregnancy termination law is an important and essential social statute, whose cancellation, and especially the cancellation of the social clause provision in it, will constitute severe social injustice.” Kadman Yitzhak, “Pregnancy Termination from a Social Perspective,” 3 Hevra Urvacha 320, 322 (1979) (in Hebrew).Google Scholar

44 The latest occurred in October 1993 when in an effort to take advantage of a rare absence of religious partners in the governing coalition, three bills proposing the reinstatement of the social clause were brought before the Knesset. Proponents of this move presented it as an important first step toward broader elimination of abortion restrictions and a bar against the proliferation of illegal abortions. Despite these goals, women's organizations did not mobilize on behalf of this effort. While this decision stemmed in part from recognition that the sensitive stare of the peace process makes this a particularly inopportune time for actions that would undermine religious support of the government, it also reflected reluctance, on the part of these groups, to expend political capital on a symbolic battle with few practical implications. The bills failed in a preliminary hearing when both major parties refused to support them. See protocol of 37th meeting of the 13th Knesset, 20 Oct. 1993.Google Scholar

45 According to Israeli governmental statistics, in 1979 there were 15,925 hospital abortions. In 1980, the year in which the social clause was eliminated, there was a 7.6% decline in the number of hospital abortions, which totaled 14,708. However, by 1982 the number of hospital abortions increased by 16% and reached 16,829, and in 1984 the number was 18,948. Whereas in 1979, 40% of hospital abortions were approved under the social clause and 8.2% were performed under the physical or psychological risk clause, in 1980, the year in which the social clause was eliminated, 35.1% of abortion approvals were granted under the medical risk clause. Israeli Central Bureau of Statistics figures cited in Amir & Navon, Politics of Aburtion 56 (cited in note 22).Google Scholar

46 The latest detailed statistics of the distribution of committee approvals by clause are for 1989. During that year, of a total of 15,915 hospital abortions, 1,986 were justified by the woman's age, 6,715 were recorded as out-of-wedlock pregnancies, 3,022 were attributed to a malformed fetus, and 3,994 fell under danger to a woman's life. Approval clauses for an additional 198 abortions were not recorded. Statistical Abstract of Israel, No. 42, sec. 3.23 (1991).Google Scholar

47 Dan Shnit, 15 Israel Yearbook on Human Rights at 155, 158 (cited in note 30).Google Scholar

48 The Court did consider a petition from a husband who contested a decision by a pregnancy termination committee to approve his wife's abortion. The husband's appeal was rejected on the ground that he did not have a vested right in the approval process. See C.A. (Civil Appeal) 413/80, Plonit v. Ploni, 35(3) P.D.57. Cited in id. at 175.Google Scholar

49 Salzberger et d., “Patterns of Contraceptive Behavior” at 13 (cited in note 28).Google Scholar

50 Id. at 13.Google Scholar

51 Memorandum from attorney Netta Ziv Goldman to the directors of the Israel Association of Civil Rights (ACRI), May 1987 (ACRI files).Google Scholar

52 Of the five Jerusalem hospitals with obstetrics departments, two refuse to operate abortion approval committees and a third approves abortion only when continuation of the pregnancy poses significant risk to the mother. The remaining two hospitals, Hadassah Mt. Scopus and Hadassah Ein Karem, approve and perform abortions under all clauses of the law, but their approval process is long and cumbersome and the fees they charge are often higher than those charged by Tel Aviv hospitals. See Salzberger et al., “Patterns of Contraceptive Behavior” at 14.Google Scholar

53 Many of the abortions performed in private hospitals were, however, approved by government hospital abortion committees. Thus in 1988 private hospitals approved a total of 5,352 but performed 10,048 of the total of 15,255 legal abortions performed during that year. In 1989 there were 5,166 private hospital approval and 7,769 actual private hospital abortions out of a total of 15,216 legal abortions. Statistical Abstract of Israel, No. 42, sec. 3.25 (Central Bureau of Statistics, 1991).Google Scholar

54 Report of the Committee for Uniform Procedures in the Work of Committees for the Termination of Pregnancy, Letter from Prof. Yitzhak Shankar, committee chair, to Eliezer Shastak, Minister of Justice, 4 April 1984 (in Hebrew, ACRl files). Political efforts to amend the law and restrict abortions to hospitals designated by the Ministry of Health were attributed by an attorney for the Association for Civil Rights in Israel to a steady increase in the proportion of private hospital abortions during the 1980s. Neta Ziv Goldman, “Abortions at the Grace of the Coalition” (translated title), Ha'aretz, 11 June 1990, p. 4 (in Hebrew).Google Scholar

55 Draft Amendment No. 30 to the Criminal Code, 21 Aug. 1989.Google Scholar

56 Memo from Neta Ziv-Goldman (ACRI) to SHATIL, 6 Dec. 1990 (ACRI files).Google Scholar

57 The two foundations are the New Israel Fund and the Bronfman Fund. Fiscal report of the abortions coalition, 12 Dec. 1990 (ACRI files). It is significant that many of the constituent organizations of the coalition are themselves beneficiaries of the New Israel Fund, a liberal American Zionist fund which supports progressive social causes in Israel.Google Scholar

58 Joint communique regarding the proposed amendment to the abortions law,Google Scholar

59 See, e.g., Henshaw, Stanley K., “Induced Abortion: A Worldwide Perspective,” 18 Family Planning Perspectives. 250 (1986).CrossRefGoogle ScholarPubMed

60 Arnir & Navon, Politics of Abortion 76-77 (cited in note 22).Google Scholar

61 Id. at 73.Google Scholar

62 Salzberger et d., “Patterns of Contraceptive Behavior” at 31 (cited in note 28) report that in a sample of Jewish women who applied for pregnancy counseling in Jerusalem, 10% identified themselves as Orthodox or ultra Orthodox and 38.7% identified as traditional.Google Scholar

63 The director of Shilo, a Jerusalem pregnancy counseling center, stated that although her office has received publications from Efrat, the major abortion opposition group in the country, it has never been the target of harassment or demonstrations. Interview with Joanne Zack-Pakes, 23 Jan. 1993.Google Scholar

64 Israeli abortion activists are deeply cognizant of the potential impact of developments in the American abortion sphere on the evolution of Israeli abortion politics. Following the U.S. Supreme Court's decision in Webster u. Reprodution Health Services, the secretary-general of Na'amat, the women's arm of the Histadrut, Israel's mega trade union, voiced concern over the potential impact of the decision on anti-abortion forces in Israel. In a letter addressed to labor Zionist organizations in the United States, the secretary-general encouraged these groups to “add their political muscle” to the American pro-choice struggle. Judy Siegel, ‘Na'amat Fears Israeli Fallout from US. Ruling on Abortion,”Jerusalem Post, 6 July 1989, p. 2.Google Scholar

65 The “politics as usual” baseline is derived from Kim Lane Scheppele, “Abortion and the Breakdown of Politics-as-Usual” (presented at Law & Society Association annual meeting, Philadelphia, 1992).Google Scholar