Is Abortion Murder?
Jews and Christians will Answer Differently
By Leila Bronner
The question of whether abortion is murder is one of the most divisive issues in America. Participants in such debates may cite a generic religious authority but rarely acknowledge that the Jewish and Christian traditions are grounded in the Bible, so how did these differences arise? This issue is salient even in our secularized society because the Bible still shapes our morality, and more importantly, because telling a woman that she is committing murder is vastly different from telling her that abortion is a complicated moral issue.
The central biblical text which deals with the issue under discussion is Exodus 21:22-23:
When two men fight, and one of them pushes a pregnant woman so that her fruit be expelled, but no harm (ason) befall (her), then shall he be fined as her husband shall assess, and the matter placed before the judges. But if harm (ason) befall (her), then shall you give life for life.
The implications of this text are twofold: first, that the mother is considered an independent life, because the penalty for her death is the penalty for murder; second, that the fetus is not considered an independent life, because the penalty for accidental abortion of the fetus is only a monetary fine. Causing the loss of the fetus under these circumstances is an offense, but not a capital crime.
In the Jewish tradition, only a few texts relate to the fetus, and thus to abortion. The Talmud states that for the first forty days, the fetus should be considered mere fluid in the womb (Yevamot 69b). Elsewhere, the Talmud twice (Hullin 55a; Gittin 23b) describes the fetus as "part of the mother" (ubar yerekh imo; the Latin counterpart is pars viscerum matris), which indicates the dependence of the fetus on the mother and, like Exodus 21:22-23, implies that the fetus has no legal personality of its own. The debate in Archin 7a on whether a condemned women who is pregnant should be executed immediately or after she has given birth seems to confirm that the fetus is not an independent entity, since the commentators tend to recommend immediate execution. Further support is lent by the interpretation given in Sanhedrin 76b on Leviticus 24:17: "If one smite any human person, then one is culpable." The "any" is understood to include the day-old child but exclude the fetus, for the fetus in the womb is "not a person," until born. Commenting on this verse, Rashi states that only when the fetus "comes into the world" is it a "person."
The pivotal rabbinic text on abortion is found in Mishnah Oholot 7:6.
If a woman was in hard travail [such that her life is in danger], the child must be cut up while it is in the womb and brought out member by member, since the life of the mother has priority over the life of the child; but if the greater part of it was already born, it may not be touched, since the claim of one life cannot override the claim of another life.
Again, the fetus is not a person when in the womb, but here the fetus becomes a person once the head or greater part of the body has emerged. It follows that when the Talmud in Sanhedrin 72b states that you are not permitted to murder one person in order to save another, the law is simply inapplicable to the fetus, because the fetus is not a person. Furthermore, the Talmud does allow dismemberment of a partially emerged child when the motherís life is endangered, thus according final priority to the life of the mother over the life of the child. These discussions turn on the technical Talmudic concept of rodef. The term for a potential murderer is rodef, a "pursuer" or, in contemporary parlance, a stalker, one who pursues another in order to kill him. Under normal circumstances, a rodef may be killed if this is the only way in which the life of the intended victim can be saved. Two conflicting viewpoints about the applicability of the rodef principle to the fetus are offered by commentators. Some commentators believe that when it is the child who threatens the mother, then the law of rodef applies, even though the rodef is a minor and so not responsible for his or her actions. Others believe that the motherís life is not being pursued by the child, but by "heaven," that is, the mother is dying as a result of natural causes, hence, the childís life cannot be made forfeit on the grounds of rodef, but there is still acknowledgement that the motherís life is to be saved at the expense of the child's life.
More evidence that Jewish tradition does not regard the fetus as a person independent of the mother emerges in the laws of the Sabbath. Many pages of the Talmud are devoted to the question, "Can you desecrate the Sabbath to save the fetus?" It is certainly permissible to desecrate the Sabbath to save the mother, but there is much discussion on the issue of whether it is permissible to do the same for the fetus. In Arakin 7a, the commentators decide that if the mother dies before giving birth, the fetus may be removed from the dead mother on the Sabbath because at that point the fetus is considered a person, that is, no longer dependent on the mother. Here we see that the fetus has intrinsic value because the Sabbath may be desecrated to save it (A knife may be carried on the Sabbath in order to aid in the delivery of a child [Yoma 85b]), but the very fact this point was debated shows that the fetus is considered only as part of the mother except in unusual circumstances and, moreover, that a existing human life has precedence over a potential human life.
Jewish law (halakhah), influenced by the Exodus passage, studied and reinterpreted in every generation has succeeded in guiding Jews on the issue of abortion. The halakhah clearly states that abortion cannot be considered murder, that the life of the mother takes precedence over the life of the fetus, and that the fetus is not a life separate from the mother prior to its birth.
The Roman Catholic Church view on abortion derives from the third-century BCE Greek translation of Exodus 21:22-23.
And if two men strive and smite a woman with child, and her child be born [miscarried] imperfectly formed, he shall be forced to pay a penalty: as the woman's husband may lay upon him, he shall pay with a valuation. But if it be perfectly formed, he shall give life for life (LXX).
Obviously, the Septuagint is not true to the Hebrew original. It changes the Hebrew word for harm (ason) into a word in Greek meaning "form, icon," which ason could never mean, and changes the construction such that ason applies to the fetus rather than to the mother.
I can cite one ancient Near Eastern source that may have influenced these alterations. The Hittite laws of the second millennium BCE dictate that more monetary compensation be paid when the fetus is destroyed in the fifth month than when it is destroyed in the tenth (sic) month. Here is the first intimation that the fetus could be assigned value depending on how much it has developed. By the first century, Hellenistic Jews such as Philo are assigning relative value to a fetus according to whether it is "shaped" or "unshaped," or "formed" or "unformed." They regard only the shaped fetus as a full person, although they do not spell out at what month a fetus attains "shape." As Bernard S. Jackson states, Hellenistic Judaism "regarded the [viable fetus] as protected by the law of homicide. For the [nonviable fetus], damages continued to be paid" (Bernard S. Jackson, "The Problem of Exodus 21:22-25 (Lex Talionis)," Vetus Testamentum 23 (1973), p. 302. See also Victor Aptowitzer, "Observations on the Criminal Law of the Jews," Jewish Quarterly Review 15 (1924-1925), pp. 85ff).
Under the Catholic Church, the debate about abortion came to center on a refinement of viability: the question of when life begins, namely, when the soul enters the body of the fetus. In the Jewish tradition, ensoulment is moot (In the Talmud, the Roman Emperor Antoninus seems to convince Judah HaNasi that the soul enters at conception [Sanhedrin 91a], but this belief never became a part of Jewish tradition). In contrast, the Catholic Church makes ensoulment a crucial question because the Catholic Church teaches that a soul that has not been baptized is condemned to eternal perdition. This is why the Catholic view on the question of whether a condemned women who is pregnant should be executed immediately or after she has given birth is that she should be kept alive until she has given birth; if the mother is executed while pregnant, the soul of fetus will be lost because it is unbaptized. The early Church Fathers express a variety of opinions about the time of ensoulment. Tertullian (2nd century), whose arguments are based on the views of the Pythagorean Greeks (7th century BCE), states that the soul enters at conception, and St. Gregory (4th century) reiterates this view. The Didache, a handbook of basic Christianity for converts (3rd century or later), decrees "thou shalt not murder the child in the motherís womb." St.Augustine, who lived in the 5th century CE, and who was influenced by the Septuagint version of Exodus 21:22-23 and perhaps by the Greek writings of Aristotle (Politics, VII, 14:10) and the Hellenistic ideas of Philo, claims that only a formed fetus of forty or eighty days has a soul and needs baptism (St. Augustine, Quaestiones in Heptateuchum 2:80. The forty and eighty come from Leviticus 12:2-5, which deals with purification for the mother, but he is misinterpreting the passage). Because St. Augustine makes a distinction between an abortion of an animate (embroyo formatus) or inanimate (embroyo informatus) fetus, he rejected the Pythagorean Greeks' theory of ensoulment at conception. In any event, the Catholic Church finally made it dogma that ensoulment happens at conception.
In twentieth-century America, abortion has been thrown into the secular realm for a variety of reasons. Our secular court of appeal is science, but even science cannot provide us with empirical proof concerning the moment at which life begins. Science traditionally deals only with physical matters, not with metaphysical matters such as ensoulment. Through science, we have learned much about the complicated physiology of the fertilization of the egg and the formation of the fetus, including the fact that many eggs and spermatozoa are lost for every egg that is fertilized and the fact that many fertilized eggs never become biologically finished babies. Thus, a scientistís views on abortion are likely to be fairly phlegmatic. Scientist Elie Shneour notes, for example, that just as burning a blueprint for a house is not arson, so the destruction of a fertilized egg, the blueprint of a potential life, is not murder (E. A. Shneour, "Life Doesn't Begin, It Continues," Los Angeles Sunday Times, January 29, 1989). The ruling in Roe v. Wade allows first-trimester abortion in accordance with elementary principles of modern biology and on the basis of the right to privacy, but the ruling does not address the question of when life begins, that is, when ensoulment happens.
I think that we must acknowledge that in the near future lawyers, doctors, scientists, and theologians will be not able to supply a generally acceptable answer to the question of the moment of ensoulment. Those concerned with this issue necessarily turn back to religion, specifically to the dogma of the Catholic Church, because the Church is where the idea was formulated and promulgated. Those not concerned about ensoulment but still wishing to be guided by biblical teachings note that the Bible is always concerned with the sanctity of the born before the unborn, and thus there can be no "fundamental right to life which cannot be infringed" for the "unborn child." The doctrine of the "sanctity of life," which is based on Scriptures such as Genesis 9:5-7, is germane not only to the fetus but also to the mother. Further, neither the commandment "You shall not murder" nor the law in Exodus 21:22-23 should be taken to mean that, "The Bible says abortion is murder." The essence of biblical teaching is the right to and respect for life, but since the Scriptures never describe the fetus as being a fully human life, if we are to ground our decisions about abortion in the moral teachings of the Bible, concern must be first and foremost for the mother, as she is already a fully developed and viable life.
We have come at last to the heart of the differences between the pro-choice and pro-life movements and between Jewish and Catholic traditions: when a fetus can be considered fully human (or ensouled), and whether the life of the mother has priority over the life of a fetus. Jewish law focuses on the life of the mother, while Catholic tradition focuses on the soul of the fetus. As a biblical scholar, I understand why the issue has been split in this way, because I can trace the historical factors determining this split. Jewish tradition clearly places the premium on the life of the mother and clearly states that the fetus is not a person and thus abortion cannot be considered murder. Of course, abortion remains an ethical and moral issue for many Jews, but it is decided case-by-case in consultation with the family and the rabbi and considering spiritual, physical, emotional, and socioeconomic factors. Catholic tradition, because it is based on the Greek translation of the original Hebrew text, has developed differently, placing a premium on the question of saving the soul of the unborn child, even at the expense of the life of the mother.
We cannot settle the issue of abortion, then, because we have no secular way of dealing with the religious doctrine of ensoulment and because we do not acknowledge that ensoulment is tied to a particular religious tradition. Our unwillingness to acknowledge that even our supposedly secular canons of morality and ethics are shaped by religion also complicates the abortion debates. In the United States, abortion often is discussed under the guise of secularity but our opinions are shaped by religious teachings. The teachings of the Judaic and the Christian traditions, for example, differ profoundly on the issue of abortion, and difficulties result when such differences are elided. More authentic moral and religious considerations may well help to move us into framing the abortion debate in new ways, ways that are more respectful not only of historical sources but also of the multireligious society in which we live.