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Jewish law, abortion and born v. unborn life

With Missouri following Alabama by passing a restrictive law limiting abortion to the first few weeks, and then only to save the life of the mother, a “teachable moment” presents itself: the view of the Jewish religion and culture.

Jews and, as I will argue, non-Jews, too, should become familiar with the two key brief texts that pertain to the fetus so that we may engage more faithfully, more wisely, more compassionately and more civilly.

In short, Jewish religious teaching does not accept the positions of either extreme in the American debate. The Jewish religion is neither “pro-life” nor “pro-choice,” as their advocates present themselves. The parameters and contours of contemporary political debate is itself only one way to look at abortion. Our texts show another approach.

Exodus 21:22ff: When men fight, and one pushes a pregnant woman, and a miscarriage results, but no other damage ensues (to the woman), the liability (for the fetus) is decided by the judges as a monetary payment. If there is damage (if the woman is harmed), the punishment may be a life for a life ...” (My translation is a modification of JPS; there is another ancient translation with a different implication.)

The question that Exodus 21:22ff answers is: What is the liability for the one who causes a miscarriage? The answer: monetary payment. The law clearly reveals that the fetus is not regarded as a legal human life. (By contrast, the Torah imposes other liabilities for a human killing a human, and none are monetary. Monetary payments are explicitly and emphatically rejected.)

The fetus is assigned to the category of property. This does not mean that the fetus was coldly thought of as property, but faced with the choice of liability for a legal life for a miscarriage, the law asserted that one who killed a fetus was not liable for penalties involving human death.

The second text, directly affecting abortion, vividly illustrates the premise. The Mishnah, Ohilot 7:6, rules: When a woman is having difficulty in childbirth, one cuts the fetus and removes it limb by limb, for her life takes precedence. But once the majority of the fetus emerges, one may not touch (harm) it, for one life does not take precedence over another life. The picture is horrifying, but here, too, it reveals the legal view: The fetus is legally inferior to the born life — the mother.

(Mishnah, composed in the first two centuries CE, is often a formal formulation of longstanding Jewish thought, practices and rules, though sometimes a Mishnah may be a new formulation or a new law in its time. Dating Mishnaic ideas and rules requires scholarship, and in many cases we do not know with certainty how far back the teaching goes. Nevertheless, the Mishnah has great legal authority.)

What is common to both texts is that the unborn is decidedly not a legal life, but once it becomes a legal life, its status is equal to any other legal life. As a later rabbi, Rava, stated: “We do not say one person’s blood is redder than another.” However, it should be noted that to save innocent born life, one may intervene and, if necessary, even kill – not only in self-defense, but to protect an innocent human other than yourself.

What also emerges from the Mishnah, and implicit in other Torah texts, is the sanctity of human life, even a fetus. The Mishnah permits, indeed requires, an abortion in the case of a threat to the mother’s life: She is born, it is unborn.

These teachings are in opposition to the pro-life view that life, legally, begins at conception, or can be designated as legal life anytime before birth. Any such designation would force not only a theoretical conflict, but a practical one as well. If a fetus were designated as legal life, equal to born life, the law would deem aborting it as murder in circumstances where Jewish law mandates abortion. The bill passed in Missouri,the law enacted in Alabama and those passed by other states do not claim legal life begins at conception, but the reasoning matters, because it does animate many pro-lifers.

These teachings are also in opposition to the pro-choice view that places a mother’s choice as the primary, and maybe exclusive, issue. The slogan that “women can do what they want with their own bodies” is appealing to those who see the state, or men, or the religious community, in terms of control. But the morality cannot be ignored.

Jewish culture, nurtured from and shaped by Torah texts and rabbinic thinking, is a culture and religion of life. Even the laws of Shabbat are set aside when there is a reasonable threat to life. On the sacred fast day of Yom Kippur, a person must eat when his life would be jeopardized by fasting. Torah teaching requires sacrificing one’s own life rather than murdering another.

Finally, these measures make no exception for rape and incest. How does this comport with Jewish religious-cultural thought, rather than contemporary American political thinking?

A woman who is legally required to give birth as a result of rape or incest is also threatened with her life. This is more than rhetoric. It is unimaginable that a compassionate religious culture could not understand how any woman and, in some cases, teens, forced to bear a child of rape or incest, could not be psychologically crippled. Rape alone is, as are even less violent forms of unwanted sexual contact, traumatic enough; how much more so would be bearing such a child against her will!

The pro-life premise that the unborn is a legal life, rejected by the texts previously cited, is the only real argument against the exception for rape and incest.

Within the spectrum of religious communities in America, I accept that others may understand the legal status of the unborn differently.

So, to the pro-life community: Minimally, understand why Jewish teaching differs, and do not conclude that our view means that our religion is indifferent to the unborn. I would also submit that you study Exodus 21:22ff, consider its meaning and consider the implications.

To the pro-choice community: As you advocate your position, you do not need to direct ire at the religious communities. We are not your enemy. That we advocate for a culture of life is something you should value. We have seen the horrors in societies in which the culture of life is eroded. We are not ene

mies of women’s health or their “reproductive rights.” These slogans are not only patently false, but they will not help your cause.

Even many who are not religious know that we are not against women. We are for defending the life of the innocent.

(As seen in STL Jewish Light, May 23, 2019)

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