The Color of Torah
Now if people struggle with each other and strike a pregnant woman so that she gives birth prematurely, but there is no injury, the guilty person shall certainly be fined as the woman’s husband may demand of him, and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, Exodus 21:22-23 NASB
Be fined – Black and White and Gray all over. That’s more or less the ethical picture of the Bible. Some things are black, some are white, and all the rest is some shade of gray. If you want a clearly defined code of conduct (with eternal consequences) for every situation, you won’t find it in the Bible. Instead, you will find lots of . . . “situations.” Lots of occasions where our current conservative ethical views are challenged. This statement in Exodus is a rather famous one. Note the explanation in Jewish thought:
Intentional abortion is not mentioned directly in the Bible, but a case of accidental abortion is discussed in Exodus 21:22-23, where Scripture states: “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other misfortune ensues, the one responsible shall be fined as the woman’s husband may exact from him, the payment to be based on judges’ reckoning. But if other misfortune ensues, the penalty shall be life for life.”
The famous medieval biblical commentator Solomon ben Isaac, known as Rashi, interprets “no other misfortune” to mean no fatal injury to the woman following her miscarriage. In that case, the attacker pays only financial compensation for having unintentionally caused the miscarriage, no differently than if he had accidentally injured the woman elsewhere on her body. Most other Jewish Bible commentators, including Moses Nachmanides (Ramban), Abraham Ibn Ezra, Meir Leib ben Yechiel Michael (Malbim), Baruch Malawi Epstein (Torah Temimah), Samson Raphael Hirsch, Joseph Hertz, and others, agree with Rashi’s interpretation. We can thus conclude that when the mother is otherwise unharmed following trauma to her abdomen during which the fetus is lost, the only rabbinic concern is to have the one responsible pay damages to the woman and her husband for the loss of the fetus. None of the rabbis raise the possibility of involuntary manslaughter being involved because the unborn fetus is not legally a person and, therefore, there is no question of murder involved when a fetus is aborted.
Based upon this biblical statement. Moses Maimonides asserts as follows: “If one assaults a woman, even unintentionally, and her child is born prematurely, he must pay the value of the child to the husband and the compensation for injury and pain to the woman.” Maimonides continues with statements regarding how these compensations are computed. A similar declaration is found in Joseph Karo’s legal code Shulkhan Aruch. No concern is expressed by either Maimonides or Karo regarding the status of the miscarried fetus. It is part of the mother and belongs jointly to her and her husband, and thus damages must be paid for its premature death. However, the one who was responsible is not culpable for murder, since the unborn fetus is not considered a person.[1]
Ah, but you will say, “Yes, but this is accidental! It doesn’t apply to deliberate, intentional abortion.” And maybe you’re right. But you must notice that Torah treats this case of abortion, accidental or not, as though the fetus is not yet the same as an independently living person. The penalty is a fine, not death. And since the Jewish community has been dealing with the ethical and religious consequences of such acts long before anyone even thought of Roe v. Wade, perhaps we need to think historically about this too. Perhaps. Maybe. Or maybe not.
It seems as if there is some gray territory here. But I’m sure some of the people who read this will find it unsettling and decide that I am just deluded and confused—along with most of the Jewish sages.
Topical Index: abortion, Exodus 21:22-23
[1] https://www.myjewishlearning.com/article/the-fetus-in-jewish-law/
Throw in intent (as in incidental/unrecognized sin).
Then there’s consideration of frequency…how often did the biblical citation occur as opposed to 57 million times since RvW.
Then there’s the verse (sorry don’t have citation) ‘You sacrificed your children on the altar… something I didn’t even think of’) where it might be said that abortion is often the resolution to an inconvenience I.e. a sacrifice on the ‘altar of conveniance’.
Then there’s the last subject of mutual consideration…often the choice of abortion in a unilateral decision and not an agreement between mother and father.
Finally, how does the breach of birth fit into the paradigm of the biblical world? Was the information considering now known stages of reactive response to having been purposefully torn limb from limb in the womb fit into their paradigm and are we now held to a higher consideration of what is life as we know it now?
or do we live in a world of 2000 years ago?
Just askin’
Ahh! Yes! The Spirit of the Law… that would be the Spirit who is holy… set apart and devoted as the One Just, Pure, Righteous and Good… the same Spirit who was breathed into the man—formed from the dust of the earth… the Spirit (Ruach) who is the very breath (ruach) of life! When it comes to splitting legal hairs I can only pray that this Spirit is the Advocate on my behalf… the One who serves to plead for me on the ground of this Spirit’s manifest love in Christ… and who is the very same Spirit of resurrection.
We are assuming that the child dies – but the words say
‘shall come forth” # 3318 /child # 3206/ no (lo) harm #611/
– so the fine is for striking the mother, and only if there is injury or death ( to either???)
” life for life” becomes the rule.
That can make the Sages correct, and allows for our anti-abortion understandings, too. We do not know how close to delivery she was…. babies can survive if born early… (though most likely not as early as we can keep them alive today).
I am sure there’s lots of room for discussion of this volatile issue. As you probably know from my previous posts, I am definitely Pro-Life. I just find it interesting that we’ve moved the issue far beyond the treatment in Torah, and perhaps rightly so as the world has changed, but the use of biblical proof-texts probably needs to be reconsidered. Of course, Moses didn’t face the kid of rhetoric we have today, or the politics, but this only makes me realize that the Bible was written for people in a different world. Now I have to figure out how to apply it. Not so straightforward as one might wish.
Thank you, Skip. It is true, we live in a different world than the people Torah was written for and we “have to figure out how to apply it.”
Is that not what our Messiah, Yeshua did when He walked this earth?
“Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil.” Matthew 5:17
He then went on to describe and show how to apply the Torah, and it seems to me He took it much further than the letter of the law: Instead of murder it was hate, instead of the act of adultery it was thoughts of lust, etc. Of course, the world we live in is different than His also, but then again, His world was different from the world of those the torah was written to. Perhaps we don’t spend enough time looking at how Yeshua fulfilled/lived out/interpreted the Torah in comparison to how it was understood and, perhaps lived in the time it was written.