The Abortion Debate

Mishpatim



Exodus 21:1 - 24:18


Précis: Having received, in the previous parasha, the 10 Commandments, Moses now reveals ordinances (mishpatim) needed to flesh out the legal system. The first group relate to the rights of servants (slaves), followed by rules about murder, crimes against parents, personal injury law, injury caused by animals, offenses against property, and bailment. A list of moral offenses follows, including seduction, witchcraft, sexual perversion, polytheism, and oppression of the “widow, the orphan, and the stranger among you.” The parasha includes the command to observe a sabbatical year, the Shabbat, and then lists the requirements for the observance of the pilgrimage festivals (Passover, Shavuot, and Sukkot). The command not to boil a kid in its mothers’ milk is mentioned, and at the conclusion of the parasha, we find a ceremony where the People, represented by Moses and 70 elders, have an encounter with the Divine Presence and accept the laws and the Covenant.


(Exodus 21:22-23): “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman's husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life...."



When does life begin? An old joke tells us that life begins when the last child gets married and the dog dies. But questions regarding the beginning of life are no joking matter, and debate in America remains contentious about “when life begins.” While the issue of abortion rights has been somewhat muted in recent years, we know that it is a litmus test for both the Left and the Right. Is there a “Jewish” view on abortion? As is the case with most of Jewish law, the answer is, “it depends.”

Our text cited above seems to indicate at a minimum that a fetus is not a "complete" human being and does not deserve the same protection as the mother. In this particular case, two men are struggling. One man’s pregnant wife gets too close, and suffers an accidental miscarriage, but seems to be unharmed in any other way. If she loses the baby, the punishment is monetary damages (paid to the husband) as determined by a court. If, on the other hand, the mother herself dies, the assailant would face execution by the court, under the Jewish legal theory of “nefesh tachat nefesh” (“life for life”). Thus, the fetus does not share equal status with a human being.

The Mishnah, the prime expression of rabbinic Judaism, reinforces the concept that life begins at birth, noting that it is permissible to destroy a fetus inside the womb to save the life of a women, because her life takes precedence. On the other hand, if the baby has largely emerged, any procedure which would destroy the fetus is banned, because it has achieved the status of “nefesh” (literally, “soul” or “personhood”) and one is forbidden to sacrifice one life for another.

What this verse tells us is a beginning of the debate. A fetus is not equal in status to its mother, and does not gain the status of “nefesh” until it has been born. But the fact that the fetus is not an equal to the mother does not suggest that it is a mere mass of meaningless tissue: it has the potential of being a human being and it too is “b’tzelem elohim” – made in the image of God.

When is abortion permissible under Jewish law? To save the life of the mother, certainly. Conservative Movement responsa suggested that while abortion is morally wrong, it can be performed for therapeutic reasons of both a physical and mental nature (Isaac Klein, "Abortion," Responsa and Studies in Jewish Law, 1975). Others who issue responsa have disagreed with this conclusion.

What we can say is that the concept of life beginning at conception is not a Jewish position. We can also say that for two thousand years, our religious leaders (and our ancestors) have struggled with this issue, and it is a matter which has yet to be resolved.