Is Abortion Murder?

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 Jewish and Christian traditions have different answers to this question. Both 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 Hebrew Bible does not explicitly describe abortion as murder or explicitly oppose it. The pivotal text 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 40 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 Arakhin 7a on whether a condemned women who is pregnant should be executed immediately or after she has given birth also 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” (ki yakkeh kol nefesh adam). The “any” is understood to include the day-old child but exclude the fetus, for the fetus in the womb is lav nefesh hu (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 in applicable to the fetus, because the fetus is not a person. Furthermore, the Talmud does allow dismemberment of a partially emerged child when the mother’s life is endangered, thus according final priority to the life of the mother over the life of the child.

More evidence that Jewish tradition does not regard the fetus as a person independent of the mother emerges in the laws of the Sabbath. It is certainly permissible to desecrate the Sabbath to save the mother, but many pages of the Talmud are devoted to the question of whether it is permissible to do the same for the fetus. In Arakhin 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, but the very fact that this point was debated shows that the fetus is considered only as part of the mother except in unusual circumstances and, moreover, that an existing human life has precedence over a potential human life.

Jewish law (halakhah), influenced by the Exodus passage, 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 B.C.E, Greek mistranslation 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.

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 a son could never mean, and changes the construction such that as on applies to the fetus rather than to the mother. In other words, the Septuagint assigns value to the fetus according to its stage of development. Influenced by the Septuagint, first century Hellenistic Jews such as Philo discuss the relative value of a fetus according to whether it is “shaped” or “unshaped,” “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.”

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 soulenters the body of the fetus. In the Jewish tradition, ensoulment is moot. 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 the fetus will be lost because the fetus is unbaptized. The early Church Fathers express a variety of opinions about the time of ensoulment. The Catholic Church finally made it dogma that ensoulment happens at conception.

In 20th century America, abortion has been thrown into the secular court of appeal: science. 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 does not address the question of when life begins, that is, when ensoulment happens. 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. Thus, a scientist’s views on abortion are likely to be fairly phlegmatic. Elie Shneour, director of the Biosystems Research Institute in La Jolla, Calif., 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.

I think that we must acknowledge that in the near future, lawyers, doctors, scientists, and theologians will not be 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. 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.”

We have come at last to the heart of the differences between the pro-choice and anti-abortion 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. While Catholic tradition focuses on the soul of the fetus, Jewish law focuses on the life of the mother. 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.

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. 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 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 multi-religious society in which we live and toward which, as feminists and Jews, we owe our attentions.

Leila Bronner, Litt.D., formerly Professor at the University of the Witwatersrand, Johannesburg, and the University of Judaism, Los Angeles, has published most recently From Eve to Esther: Rabbinic Reconstructions of Biblical Women [Westminster/John Knox, 1994].