Is Abortion Legal?
This week’s reading contains numerous laws governing various aspects of daily life. At first, some of these might seem far removed from our own daily lives. You’re probably not going to sell your daughter into slavery or have to pay compensating for your goring ox. But one of the laws has an immediate and obvious relevance for many people today, since it concerns a question that is still much debated: At what point is it forbidden to take the life of a fetus in its mother’s womb? From the moment of conception? In the third trimester? Or anytime before the actual birth?
When men are fighting and they [accidentally] strike a pregnant woman so that her baby comes out—if there is no mishap, he [the one who struck her] will be fined in keeping with what the woman’s husband demands and is approved by the court. But if there is a mishap, then the penalty is a life for a life; an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. (Exod 21:22-24)
According to this passage, one of two fighting men strikes a pregnant woman in such a way as to cause her baby to come out. “If there is no mishap,” the Torah says, then the man who struck her is to be fined. One might well wonder why. After all, it was apparently an accident, and if the baby is okay and the mother is okay, what harm was done?
But in fact the baby is not okay. All ancient interpreters rightly concluded that the woman miscarried as a result of the blow she received and that the baby died—otherwise, indeed, the Torah might have stipulated leniency for this unintentional act. But if so, then what is the difference between the two possibilities described, “if there is no mishap” and “if there is a mishap”? On this ancient interpreters disagreed.
One school of thought is well represented by the translation of this verse in the Septuagint (the old Greek translation of the Torah, completed sometime in the third century BCE). Instead of “if there is no mishap,” it reads, “if her baby comes out not fully formed.” By this the translators were offering their own interpretation of what “no mishap” meant: the incident took place relatively early in her pregnancy, so that the miscarried fetus was not yet identifiable as a human being with arms and legs and fingers and toes. The man who caused her to miscarry was certainly guilty of something and ought to be fined, but he did not, by this interpretation, cause the death of another human being.
If, however, the baby did come out fully formed—say, at some point late in the last trimester of the pregnancy—then the baby could be already be considered a human being in all respects. If so, the man who struck the woman will have thereby caused the death of another person and must pay the ultimate penalty, “a life for a life.”
The opposing school of interpreters (who would eventually include the founders of rabbinic Judaism) agreed that the woman miscarried and that the fetus died. But the “mishap” involved, they said, was not the death of the fetus, but the death of the mother. The baby, in their view, was still a “limb of the mother” until its head came out during labor. Thus, even if the incident took place in her ninth month of pregnancy, if the mother survived the miscarriage, the man who struck her was to be fined. But if she died, then he was to pay “a life for a life.”
This disagreement had many far-reaching consequences. For example, it often happened in ancient times that a woman’s life would be in danger because her baby could not be delivered (as was frequently the case with a breech baby). The first school of interpreters might argue that, since a full-term baby was considered a human being even in its mother’s womb, the baby could not be killed to save the life of the mother. The opposing school could argue that, until the baby’s head came out, the fetus was considered a “limb of the mother” and could be sacrificed to save her life.
Here is an aspect of this disagreement that you probably would not have thought of. The Torah’s laws of purity hold that contact with a human corpse imparts the severest level of impurity. But what of the case of a stillborn infant, that is, one who dies in his mother’s womb toward the end of her pregnancy? For the first school of interpreters—which, incidentally, also seems to have included the Dead Sea Scrolls community—she was to be considered “as impure as the grave,” since she was quite literally holding a dead human being inside her. For the opposing school, the dead fetus was “a limb of the mother,” no different from a hand or a fingernail—hence, no impurity was transmitted.
The Torah also says (Lev 22:26-28) that it is forbidden to slaughter a female animal from the herd or the flock along with her young “on the same day.” Did this just mean that you couldn’t kill the two animals, a mother and her offspring, on the same calendar day after the birth—even if, say, it was a month or a year later—if it meant slaughtering the two animals within a single 24-hour period? Not for the first school of interpreters. They held that this verse was talking about slaughtering a pregnant cow or ewe. In so doing, they said, you might likely be killing a fully formed fetus along with its mother. Their opponents, of course, held that the calf in the cow’s womb was still part of her body and that the law did not apply to this situation.
And what of the general legal principle cited at the end, “an eye for an eye”? This may be the most famous legal pronouncement in the Torah–but most people don’t know how this verse was interpreted by Jewish sages. The traditional interpretation holds that this verse really means that if someone knocks out another person’s eye, the offender has to give the victim monetary compensation for the loss–but he certainly doesn’t have to give up his own eye (see the discussion in the Talmud, b. Baba Qamma 83b-84a). In fact, long before the Talmud was compiled, this traditional interpretation was apparently well known: Josephus (late 1st cen. CE) asserts that in such cases of physical injury (rather than death), “the law permits the victim to establish damages for the incident.”
Shabbat shalom!
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