Judaism & Modernism

Birth Control in Jewish Law: Marital Relations, Contraception, and Abortion as Set Forth in the Classic Texts of Jewish Law.
by David M. Feldman.
New York University Press. 322 pp. $9.95.

Judaism, classically speaking, is a religion grounded in law, the Halakhah, whose myriad particulars in their totality comprise the Jewish “way of life.” This fact, however, has largely been obscured for most Jews and Christians alike, the chief culprit being the widespread breakdown of Jewish observance in modern times, but also the inaccessibility of much of the halakhic source material. Among other effects, this has resulted in a preponderance of books of the essence-of-Judaism sort, and a paucity of works dealing with the classical modes of practice and thought which have distinguished Judaism qua religion. A further consequence is a frequently distorted comprehension of the Jewish past, to say nothing of an excessive dependence on modernist formulations to direct the Jewish present.

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For this reason David Feldman’s Birth Control in Jewish Law is doubly welcome. Not only does the work offer a scholarly overview of the Jewish legal tradition, in this instance on a matter of great human concern, but it also seeks to advance a case for the continuing relevance of Jewish religious law. Feldman accomplishes this through a painstaking analysis of the pertinent sources, from the talmudic rulings (which, incidentally, permit contraception under circumstances about which later tradition argued), on through the hundreds of responsa on the subject over the centuries, and down to the contemporary rabbinic formulations of the issue. Along the way, the reader is also instructed in the methodology of halakhic decision-making, gaining an intelligent understanding of the assorted literary exegeses and legal considerations which go into the process.

Jewish tradition—to state the matter briefly—asserts the sacredness of life; but the Halakhah, operating as it does by the case method, avoids simple generalizations or “natural law” formulations. Thus, Halakhah affirms both the commandment to procreate and the primacy of the living over the yet unborn. Since the bringing of new life into the world can often be the occasion for endangering human well-being, Jewish law sought to reconcile both claims by permitting some forms of contraception under certain conditions (such as a threat to the mother’s health). Feldman elaborates these general principles with an abundance of illuminating historical and textual detail. He then attempts a rather difficult feat, but one he is able to bring off because of his sure scholarly footing. Surveying the traditional literature applying halakhic criteria to present-day methods of birth control, Feldman goes on to rate the acceptability of the various methods according to the current requirements of Halakhah. The conclusion is a reconciliation of past emphases on procreation with the new urgency of contraceptive considerations. Male contraceptive methods, he concludes, would be rejected (this is a reflection of the particular responsibility of the male for procreation—the commandment “be fruitful and multiply” was classically addressed to him); female non-mechanical types of contraception (pills, foams, etc.) would most likely be allowed, if used for reasons of health.¹ (To some, such distinctions may appear to be otiose, if not odious, but by avoiding general prohibitions, Judaism has managed to bypass the kind of crisis—that of having to change a “universal principle”—which racks Catholicism today.)

Feldman’s book, however, is more than a competent, even interesting, exercise in scholarship. Indeed, as I have suggested, the animating spirit behind the work is to demonstrate the relevance of the Jewish tradition to the claims of the present. For this purpose Halakhah is continually compared with Christian exegetical traditions and doctrinal views of marital sexuality. The comparison shows that, by modern norms, Judaism would appear to be closer in mood to our Western sensibilities than Christianity—at least until Christianity began internalizing modern values. In Christianity, celibacy is the ideal; in Judaism, marriage is the fundamental mitzvah. Original sin is linked to sexuality by Augustine and the medieval Christian theologians. Jewish thinkers of the period favor temperance and restraint in sex but also affirm that pleasure, as well as procreation, is a valid goal of the sexual act.

When social circumstances came to demand a reconsideration of contraception, Christian theologians turned, quite naturally, to abstinence as a solution—the rhythm method, for example. Jewish religious authorities rejected abstinence since it would conflict with the desideratum of a joyous, harmonious (that is, sexually fulfilling) domestic life; they sought other forms of contraception that would not interfere with the marital relationship. In fact, contraception has always been an option in the Jewish tradition and, until very recently, a violation of “natural law” in mainstream Christian tradition. Thus, therapeutic contraception is universally recognized in Jewish law, but until the 20th century, it was ruled out by Christian consensus. In the same way Feldman shows that although Judaism is opposed to abortion out of reverence for life, the nature and the quality of the opposition leaves ample room for therapeutic abortion and potential leniency to protect the general health of the mother—even from severe mental anguish.²

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But if everything is so good, why is everything so bad? If the tradition is so relevant, why are the bulk of present-day Jews so remote from it? One reason, of course, is that the Jews don’t know their own tradition. But the problem runs deeper than ignorance, and this is what many of the proponents of the Halakhah, including Feldman, have by and large failed to come to grips with. The real competition for Jewish identification and loyalty, I would suggest, is not Christianity but modernism. Hence it is hardly sufficient to show that Judaism is in accord with the modern spirit, and let it go at that; for, in fact, classical Judaism falls quite short of the modernist mark. One example: the majority of American Jews—moderns all—who practice birth control (the figure is usually given at over 95 per cent of the total) do so for assorted socioeconomic reasons, better living standards, upward mobility, etc. But on this point Feldman summarizes the Jewish religious tradition as follows: “The economic factor is simply not admissible! . . . [as] to financial exigency, the very idea of allowing it to figure in considerations of birth control seems unworthy. . . .”

I would argue that a practice of birth control that stems from socio-economic motives has a religious edge to it, in that it reflects the impulse for human fulfillment and mastery over human fate. But that is really beside the point. On this matter, Feldman and all the other proponents of Jewish relevance are simply hoist by their own petard. They appeal to a covert modernist norm to validate the significance of Jewish practice. In so doing they accept the modern norm as the touchstone; but Judaism, in its classical form, often does not qualify by that standard. Those who would uphold Halakhah might therefore do better to reject the criterion of relevance, whereby Judaism inevitably ends up as a lesser reflection of the dominant cultural trends. (The very appeal to relevance is itself testimony to Judaism’s satellite role in a general culture.) At the very least, if relevance is to be invoked, a rethinking of the relationship between religious values and the socioeconomic component of modern culture would be in order.

In a further exposition of the tradition’s opposition to a materialist motive for engaging in birth control, Feldman writes: “. . . material considerations are highly improper in connection with something as spiritual and selfless as the bearing and raising of children.” Put this way, the issue seems to be spirituality and/or higher values versus materialism. This may give comfort to traditionalists who can console themselves with the notion that the widespread disregard of the religious tradition is testimony to the cupidity and selfishness of human nature rather than to the shortcomings or irrelevance of the tradition. But such a view is entirely too self-serving. It fails to take into account the fact that what has exploded the system of Jewish observance is not material temptation alone, but an extraordinary and very heady combination of idealism plus material advantage. Nowhere is the tradition more vulnerable than in its ongoing incapacity to grasp the religious possibilities of affluence. The nub of modernism is the vision of this life as central—hence the moral obligation to make the most of it, to “establish God’s kingdom on earth,” as the traditional formulation has it. But all this will be impossible of accomplishment without the economic influence which has bred modern culture: one has only to take a good look at an Indian peasant woman of twenty-five, old before her time, to appreciate the moral force of IBM and Revlon.

The plain truth is that there can be no true human dignity in forced poverty—and there can be only limited dignity in limited poverty. Maimonides put this very well: “The twofold object of the Torah is the well-being of the soul and the well-being of the body. . . . [The well-being of the body] is treated [in the Torah] most carefully and minutely because the well-being of the soul can only be obtained after that of the body has been secured. . . .” True, affluence does not bestow automatic human dignity, but, as they say, it helps. The rest depends, in good measure, on the use and direction of affluence and on infusing it with values—a task for which Judaism, among other moral systems, will be unfit so long as it fails to do full justice to the morality and necessity of “materialism.”

These last objections notwithstanding, I have no hesitation in commending David Feldman’s study. I would suggest that as American Jews become more and more acculturated, and therefore less and less impressed with modernism in Jewish clothing, Feldman’s book will be sought after. It opens the door to a direct confrontation with the classical Jewish texts and values before they are “translated and improved.” It is Feldman’s merit that he makes us—traditionalists, modernists, and post-modernists alike—realize that the Jewish paradigm remains impressive and worthy of imitation, even when the values set forth are not altogether congruent with our own.

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¹ All this, of course, is in line with the position of those who take Halakhah as normative; Reform and many Conservative rabbis have tended to be permissive in this area.

² It should be noted that Feldman does occasionally lapse into apologetics by placing greater stress on the positive Jewish sources; but this does not occur often enough to vitiate the essential validity of the comparison. Considering the many stale Christian stereotypes still in circulation, regarding the superiority of New Testament love over Old Testament sternness, or Christian universalism over Jewish particularism, Feldman's effort may be a legitimate counterweight, even if it does occasionally pad the Jewish expense account.