Tuesday, December 21, 2021

SCOTUS, Abortion, and the Jewish Stance


What is Life before Birth? 


This is the video of the discussion on Dec 15.


The right and wrong of life itself is fast becoming the crucial moral and legal issue of our society. When does life itself begin, and when does it end? May I prevent a life, may I hasten its end? May I tamper with the way in which we begin life? Can I change my genes, so that my descendants will all have blond hair and blue eyes and be six-feet tall?


          Abortion has come to the fore as an issue again, as state legislatures weigh in on the topic of late term abortion.Now Texas has opened the possibility of civil suits by angered citizens, Mississippi is seeking to overturn Roe v Wade and the SCOTUS is about to opine on this topic. Maybe this is the ” Bloody Kansas” of our century that could split us up.


          Clearly, the most vocal answers, the ones that get in the press, are either the complete “pro-life” anti-abortionists, for whom all abortion, no matter the reason, is murder, or the very abstract “pro-choice” for whom, it seems , is very simply, a matter of a woman’s choice.


This is not just a matter of religious faith:

 I.                 A bitter reminder from modern history-

On race- abortion was part of a plank by progressives at start of 20th century- based on the “ science” of their day.

Restrict the growth of what they considered inferior people= such as blacks, Jews, Italians. It went hand in  hand with the original IQ tests, which were designed to prove the mental inferiority of the new immigrants coming to this country. Went together with eugenics, that we could breed a better  kind of humanity. Birth control, enforced sterilization of undesirables- Even in recent years, noted economists have paired the decline in crime since the late 20th century with the increase in access of abortion. Fewer births among the poor-fewer teenagers and young adults on the streets who get in trouble.

We can go a step further:

  “after-birth abortion” is a term invented by two philosophers, Alberto Giubilini and Francesca Minerva. In the Journal of Medical Ethics, they propose:

[W]hen circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. … [W]e propose to call this practice ‘after-birth abortion’, rather than ‘infanticide,’ to emphasize that the moral status of the individual killed is comparable with that of a fetus … rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk.



 Another factor muddling the issue, especially the last century- the ability to support an embryo out of the womb at earlier stages of pregnancy, and the ability to see live action through ultra-sound at even earlier stages. A noted neo-natologist whom I know well told me that he was appalled at abortion as he saw the embryo as a full human being from the perspective of his work.

Note that these are secular, not religious perspectives.


II.               For other ancient  perspectives

           For the Catholic Church, as for many evangelical Protestant groups, abortion is a grave sin, and for many, it is seen as murder.

           In classic Christian doctrine, and borrowed from Greek thought, from the moment the infant is conceived, the soul, the eternal, individual soul, enters the egg, and from that moment on, we have a full fledged human , with all rights and safeguards.

 .For example:

Aristotle believed a fetus in early gestation has the

 "soul of a vegetable, then of an animal, and only later became "animated" with a human soul by "ensoulment". For him, ensoulment occurred 40 days after conception for male fetuses and 90 days after conception for female fetuses [Aristotle, like other Greeks, had no sympathy for women!],[5][6] the stage at which, it was held, movement is first felt within the womb and pregnancy was certain.[7][8]

[But note for geometry students: -if you like your right angle hypotenuse, you like Pythagoras.]

Pythagoreans also considered ensoulment to occur at conception

 . III,  Jewish teachings on protecting children once born.

  Jews were very well known in antiquity for an exceptional trait: we did not abandon deformed infants.  You well know the Spartan practice of abandoning deformed babies to the wolves. Only fully healthy children could serve as warriors; therefore, any infant less than properly formed was doomed.

 Here is the law as it was recorded in The Twelve Tables of Roman Law: "Deformed infants shall be killed" (De Legibus 3.8)

. It was clear in Roman law that any baby less than fully desirable could be disposed of freely , and that applied, very often to baby girls who could be exposed to the beasts. Roman law gave the father “ius paterfamilias”, absolute power of `authority over life and death of any of his children.

Jewish concern for the newborn was abhorrent to the Romans. Thus, the Roman historian, Tacitus condemned Jews for their opposition to infanticide. It was another proof of the  "sinister and revolting practices" of the Jews.( Histories 5.5.)

 IV So, what is our stance? What are our sources?


The Covenant with Noah-which is considered binding on all, Jew and gentile-Noachide laws-

שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּ֚י בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם׃

Whoever sheds the blood of man,
By man shall his blood be shed;
For in His image
Did God make man.

Is that what the text means?” Dam HaAdam , baadam damo yishafech.”In other words, there is a comma break between the two forms of Adam, so to say,as the translation- or,there is no comma until after the 2nd “ Adam”, so thatit measn the blood of the man inside the man.”In other words, the fetus.as per R Ishmael-(Sanhedrin 57b) from the wording of Genesis 9:6.

Is it clear? Or not?

B What other guide do we have? A hypothetical “ If then” in the Torah.

Our key text is from Exodus, the portion of Mishpatim, Chapter 21, in the context of assault and battery and accidental and intentional murder. It is the context of the famous “ eye for eye.”



וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃

 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.


וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃

But if other damage ensues, the penalty shall be life for life,


עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃

eye for eye, tooth for tooth, hand for hand, foot for foot,


כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)

burn for burn, wound for wound, bruise for bruise.

Mishpatim ( Exodus 21:22)

 The controlling phrase:

וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן

“ her children have gone out”- a clear term for miscarriage.

“but there is no “ason”, tragedy. In other words, she does not die as a result of the strike. Then there is only a compensation, set by the court.

However, if there is “ ason”, a tragedy, then there is penalty depending on the degree of injury to the mother, hence, the lex taliones to give guide lines on compensation for physical injury-nefesh tachat nefesh- life for life- of the mother. eye for eye, tooth for tooth.

 We read it one way, Catholics read it another way:

 They have a different text of the Torah- they have the Septuagint

 The Catholic Church based its position on the Greek translation , Septuagint, which they claim is the closer to the original Hebrew than our text. That text seems to deal of death to the fetus, but this does not appear to be our text.   The Greek renders ason  as form, yielding something like: "If [there be] form, then shalt thou give life for life." The "life for life" clause is thus applied to fetus.

           Our text of The Torah speaks only of a miscarriage, caused in a fight. If the fetus is killed, the aggressor pays only a penalty. He has not committed murder, nor has he caused an accidental death. By implication, in Jewish law, the fetus is not yet a living independent human being. As for the penalty for hitting the pregnant woman, the Talmud Bava Kama 40a makes it clear that what is involved in this fight is a valuation of the fetus in terms of material damages, not in terms of taking a life.

 Note- this account of a woman caught in a fight which causes a miscarriage is found in many ancient law codes in the middle east, all of which  make just the same case, of monetary penalty- except for the law codes of the Assyrians—probably because they were a military society, and the loss of an infant was the loss of a future warrior!

 C.We go to our next source, the Mishnah :

 Mishnah Oholot 7:6

הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:

If a woman is in hard travail, one cuts up the offspring in her womb and brings it forth member by member, because her life comes before the life of her foetus.

But if the greater part has proceeded forth, one may not set aside one person for the sake of saving another.


The classic Catholic teaching was and is, that the mother has already gained life, eternal, through her faith, but the infant must be saved in order for that soul to gain eternal life. We want life in this world, the Catholic, in the next.

For that reason, in the past, at catholic hospitals, the infants life took precedent over the mother’s life. A Jewish woman would not  want to have complications at birth in a Catholic country.

D.          In later Jewish law, also, in the Mishnah and the Talmud, the embryo is not yet a living entity. The fetus has no legal rights; it can not inherit property, nor can any purchase be made in its name, for one can make no legal transactions on behalf of someone who does not yet exist.

 In Jewish law, the fetus is ubar yerech emo--the fetus is a part of the mother, just as her thigh is, or any other organ, stomach, heart, bones.

          The Talmud explicitly calls for abortion, up to the moment of birth, for the sake of the mother's life, because clearly, as Rashi explains, before physical birth, it is not considered alive. Only after birth is it alive.

 Clearly, terminating a pregnancy is not in and of itself an act of murder.

          From this perspective, Rabbis required abortion in the case of physical danger to the mother, or even mental danger to the mother even up to the moment of birth. The Rabbis actually considered the fetus to be the equivalent of a “ rodef”, a very harsh term, a word used to indicate one intent upon killing another—the fetus, in this case is the “hunter”. There is a very clear dictum that , in the case of “ rodef”, one must  kill the hunter to save the hunted. Other rabbis used it to indicate “ rodef min hashamayim” as, even though Heaven itself is pursuing the mother, as if to kill her, we must perform an abortion.

However- although abortion is not murder, so not neither mother nor abortion provider are liable for the death penalty, does that make it permitted under other circumstances?

 There are those Rabbis who justified fear of pain, or mental anguish or shame as legitimate grounds for abortion in earlier stages. In all cases, the operative concept is that the active ( mother) takes precedent over the  potential ( fetus). However, the moment, a large part of the fetus emerges, whether naturally or by Caesarian, it is at that moment, considered a full human being who must now be brought to full birth.

    Great sages authorized abortion in cases which involved, not only the life, but also the mental and emotional health of the mother. The great philosopher, Ramban, himself performed an abortion for a gentile woman in order protect her form future sterility. They were, clearly, more lenient at the earlier phases of pregnancy, before the fetus began to take recognizable shape.

 As an example of modern application, in the State of Israel, abortion is allowed with the approval of a termination committee if the woman is unmarried, because of age (if the woman is under the age of 17 - the legal marriage age in Israel - or over the age 40), the pregnancy was conceived under illegal circumstances (rape, statutory rape, etc.) or an incestuous relationship, birth defects, risk of health to the mother, and life of the mother

          Abortion at will or personal choice?

Can we say “  It’s my body and I can do as I see fit?” This is a faulty premise and Justice Ginsburg saw the flaw in the Roe v Wade decision based on an implicit right to privacy. She wanted the case decided on the basis of equal opportunity, on the basis that the risk involved falls on the women, not on the man. But in itself , it is a faulty premise. not just on abortion, but on every aspect of human life- our existence as social beings, not lone wolves, means that society has the moral authority to make demands of our bodies-both of males and females. Males are expected, in time of a major war, as World War II, to offer their bodies for the greater good.

Perhaps instead there needs to be a greater general principal between the extreme ends.

         Abortion is not murder, nor is the unborn fetus yet a full human being, yet on the other hand we also are concerned, lest we lose our sensitivity to the potential of life in each pregnancy. We are we get closer and closer to full gestation, the fetus shows more and more signs of viability outside of the womb. It further clouds the issue.

          As Jews, we recognize that we must confront moral responsibility from both ends of the equation, never form an abstract absolute. It used to be accepted that, in Bill Clinton’s words: Abortion should not only be safe and legal, it should be rare.

That was 30 years ago. Today, the lines have been hardened.

For the democrats, the word “ rare” is forbidden, and for Republicans, the word “legal” is forbidden.

Both women and infants are caught up in our cultural wars.

          In our tradition, every child born is a special event. May we make every effort possible, so that, when life begins, at birth, that life is a blessing, a joy, and a comfort for all. Amen.

1 comment:

  1. Shlomo Sterling CrossJune 30, 2022 at 6:54 AM

    Thank you so much for this article! I loved learning about the history of the ancient non-Jewish sources and the Jewish sources together. I liked the quote from President Bill Clinton as well. I liked learning about what the Greeks say about "ensoulment " whether from Aristotle's view or from Pythagoras and his religious cult followers. I wonder what does Judaism say about the time when "ensoulment" begins?