May 29, 2024
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May 29, 2024
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The Roots of Abortion in the Torah

The abortion debate in America can often leave observant Jews feeling like outsiders. The two sides, often dubbed “pro-life” and “pro-choice,” don’t quite fit into the halachic paradigm. It therefore leaves some of us trying to navigate the space with uncertainty.

While the Torah doesn’t explicitly legislate abortions, it does mention a few verses that could shed some light. I will share not only the Jewish understanding of the verses, but my understanding of what the Roman Catholic Church teaches for these verses. While I am not a scholar in Roman Catholic exegesis, I had greater insight when someone shared with me the different ways of reading these words and how they might impact our distinct views on abortion. Contrasting the two provides an opportunity for greater understanding of our position.

In Parshat Mishpatim, Exodus 21:22-24, we read:

וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃ עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃

“When men fight and they strike a pregnant woman and the child comes out and there is no tragedy, he will surely be punished when the husband exacts from him and he will give according to the determination. If a tragedy does occur, it shall be a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a leg for a leg. (my translation)

There are some ambiguities in these verses. What does it mean “the child comes out”? Is that a miscarriage or a premature birth? Also, the pronoun is ambiguous; who does the tragedy (אסון) occur to?

The way that Jewish interpreters viewed these verses are as follows, loosely translated: When men are fighting and a pregnant woman gets hit, forcing a miscarriage but no other tragedy or injury happens to the woman besides for the miscarriage, then the offending individual shall pay a fine. If, however, something did happen to the woman, either she died or was injured, then we follow the phrase נפש תחת נפש, a life for a life. (Our Sages debate whether this means capital punishment or a fine.)

Contrast this with the Roman Catholic interpretation of these verses, that serve as the starting point for their pro-life position, loosely translated as follows: When men are fighting and a woman gets hit, forcing her to give birth early but to a healthy baby, then the husband can exact payment for this assault. If, however, there was a tragedy with the pregnancy and the baby was injured then it is a life for a life or however the baby was injured.

We differ in how to understand the ambiguous pronouns. The Roman Catholic Church clearly posits that the fetus is a life. The verse makes no distinction on which trimester the mother was in—only that she was pregnant. Presumably this means that from the moment she is pregnant, namely, at conception, the fetus is a full-fledged life. Rashi and Jewish sources, however, explain the ambiguous pronouns as referring to the woman. By inference, a fetus is not considered a full-fledged life according to halacha.

While no other verses in the Torah explicitly talk about abortion, there is another verse, quoted in the Gemara in Sanhedrin, that presents another dimension. In Parshat Noach, Genesis 9:6, it states שופך דם האדם באדם דמו ישפך; this literally means “if one sheds the blood of a person, a person will shed his blood.” The verse plainly means that murder is a capital offense and prohibited. While the verse is poetic in its structure, with the six words forming a chiasm, A, B, C, C’, B’, A’, the middle two words האדם באדם, if taken out of context and read homiletically, can mean “the person in a person.” Who, the Gemara asks, is a person within a person? It is a fetus and it is a capital offense to kill a fetus. Because this section in Genesis is detailing the Seven Noahide Laws, the Gemara explains that this only applies to non-Jews. Jews would not be likewise liable for an abortion. The Rambam rules accordingly in his section on the Seven Noahide Laws.

This ruling raises many questions. What does this mean about the permissibility of abortions for Jews? What is the status of a fetus? One should not extrapolate too much from the severity of the punishment for abortion for non-Jews as the Rambam rules that theft of even less than a quarter and eating from a live animal also are capital offenses for non-Jews. (Why our humane halachic system would codify it thusly is beyond the scope of this article, but readers are encouraged to inquire of their local rabbinic authorities.) What does seem clear is that it is problematic. Problematic like stealing a penny or eating from the limb of a live animal? Or is it like murder or idolatry? This is not yet clear in the sources.

The status of the fetus is murky. On the one hand, an assault that leads to miscarriage carries with it only a financial penalty. Yet, it is wrong for a non-Jew to cause an abortion. Our Talmud continues to complicate this topic. It says a fetus is compared to the thigh of the mother (i.e., not a life), one can do a late-stage abortion if there is a difficult labor, one not need to wait until birth for a woman on death row, and that an unmarried woman who conceives with a kohen cannot eat terumah, food permitted only to the priestly class, until she gives birth. All of these seem to deny that a fetus is a life. Yet the Talmud also states that a 40-day-old fetus receives a soul, and it would be unusual if non-Jews were prohibited from having an abortion while Jews had no restrictions. These and other teachings complicate the question of abortion.

The Torah and the Talmud do not fit nicely into either camp of pro-life or pro-choice. What is clear is that when the mother’s life is at risk, abortions are permissible and perhaps mandated. It also seems clear that there are serious halachic limitations on abortions. It means that our view is more nuanced and complex than can fit on a bumper sticker or chanted at a rally. In future weeks I hope to explore how later authorities grappled with the sources and offer suggestions on how to translate this into our political and social environment today.

A closing note: Women, about whose bodies the question of abortion relates, must be an essential part of the discussion. We must hear stories of women who have had abortions, who have thought about having abortions, who chose not to have abortions, whose pregnancies were not viable but were still deemed by the law or through insurance coding as having abortions and many others. Recent laws have encouraged some women to share their stories, and many are painful to read. While I hope to contribute to the conversation, please do seek out the perspectives of women, both within and outside of our community, to lead to a more informed understanding.

Rabbi Maurice Appelbaum lives in Teaneck, NJ, and can be reached at [email protected] for respectful dialogue.

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