The Torah of Abortion Justice(Annotated Source Sheet)

The Torah of Abortion Justice (Annotated Source Sheet)

A listing of some of the key sources that inform a Jewish understanding of abortion.

Abortion is one of the more charged topics in American political discourse.

Proposals to limit or block access to reproductive health care in most states reflect a specific Christian definition of the beginning of life, and limit the termination of pregnancy even in instances where Jewish law not only permits, but even requires it. Learning the sources that undergird Judaism’s approach to reproductive rights can help illuminate one of the major struggles of our day in new and, sometimes, surprising ways.

(One content note: These texts talk, not surprisingly, about pregnant women. In the context of our contemporary gender categories, it might be useful to remember that, while many (but not all) cisgender women can get pregnant, so too can some non-binary people, some trans men, and some other people whose identities are not reflected in the framework of binary gender.)

Let’s begin by looking at the question of the personhood of a fetus:

שמות כ״א:כ״ב-כ״ה

(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃(כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃(כד) עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃(כה) כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)

Exodus 21:22-25

(22) 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.(23) But if other damage ensues, the penalty shall be life for life,(24) eye for eye, tooth for tooth, hand for hand, foot for foot,(25) burn for burn, wound for wound, bruise for bruise.

In other words, if someone accidentally causes a miscarriage to take place, they are obligated to pay financial damages only; the case is not treated as manslaughter or murder, which would demand the death penalty. The “other damage” that would demand the death penalty (“life for life”) would be the death of the pregnant person herself (or some other serious punishment relating to the damage caused--”eye for eye, tooth for tooth…”) In other words, causing the termination of a pregnancy is not, in the Torah, considered murder. As the Talmud puts it:

סנהדרין פ״ז ב:י׳

דיני נפשות בפלוגתא דרבי ורבנן דתניא רבי אומר (שמות כא, כג) ונתת נפש תחת נפש ממון

Sanhedrin 87b:10

In cases of capital law, the dispute concerning such a prohibition is with regard to the issue that is the subject of the dispute between Rabbi Yehuda HaNasi and the Rabbis, as it is taught in a baraita that Rabbi Yehuda HaNasi says with regard to that which is written: “If men struggle and they hurt a pregnant woman…and if there shall be a tragedy you shall give a life for a life” (Exodus 21:22–23), the reference is to a monetary payment for the life that he took. The tragedy referenced is the unintentional killing of the mother.

Interestingly, a major factor in some Christian views on abortion were developed through a mistranslation of this passage. In the Greek translation of the Hebrew Bible (known as the Septuagint, completed in 132 BCE), they translated ason, damage or tragedy in these Exodus verses, to exeikonismenon, “from the image,” making the verse seem to be about whether or not the fetus is “perfectly formed,” rather than whether or not the pregnant person dies. That is, the question of whether one pays mere damages or incurs the death penalty would then depend on whether the fetus is “formed,” or sufficiently developed in terms of gestational stages, to warrant a harsher punishment. Notably, the Septuagint translated the word ason in a different, more accurate, way (as malakia, affliction) in the Book of Genesis. There are a few theories as to why this happened, but the ramifications of this poor translation choice continue to this day.

The next few sources look more closely at the status of the fetus:

יבמות ס׳׳ט ב

אי מיעברא עד ארבעים מיא בעלמא היא

Yevamot 69b

If she is found pregnant, until the fortieth day it is mere fluid.

That is to say, the fetus has basically no status whatsoever for the forty days of pregnancy. It is like water--a thing of no legal significance. Was this because of the prevalence of miscarriages? Was it a larger philosophical claim? Regardless, this text is a clear assertion that life does not begin at conception.

It may be worth noting that modern decisors of Jewish law count the 40 days as beginning from conception. Given that contemporary medical practice is to count pregnancy gestation from the last menstrual period--not conception--the end of those 40 days lands at about 7 or 8 weeks of pregnancy, by our current accounting.

גיטין כ׳׳ג ב

מאי טעמא דרבי בהא קסבר עובר ירך אמו הוא

Gittin 23b

What is the reason for Rabbi Yehuda HaNasi’s position [in the above conversation]? He holds that a fetus is considered as its mother’s thigh [that is, as part of its mother’s body].

In the middle of a Talmudic debate about whether a fetus is considered separate from the pregnant person, we see a clear statement by Rabbi Yehuda HaNasi who, as redactor of the Mishnah, holds great authority. His statement, in fact, closes the debate and lends credence to the discussion at hand (about the status of a fetus if its mother is liberated from bondage.) A fetus is not an independent being; it is part of the body of the person carrying it.

Now, a few sources on ending pregnancies:

משנה אהלות ז׳:ו׳

(ו) 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:

Mishnah Oholot 7:6

(6) If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person's life for that of another.

In a situation in which the pregnant person’s life is in danger from the pregnancy or labor, Jewish law is abundantly clear: The adult’s life takes precedence. The only situation in which that comes into question is if the birth is already more than half completed--only then does the life of the birthing baby come into consideration. As Rabbi David Felman put it, “Implicit in [this] Mishnah is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth.”
This principle is cited elsewhere in the Talmud in a conversation about self-defense; the Gemara there asserts that abortion to save the pregnant person’s life should be considered self-defense, that the fetus in this case is a rodef, a “pursuer” attempting to kill the pregnant person. Rashi--Rabbi Shlomo Yitzhaki, the important 11th century French commentator addresses that discussion. The word nefesh in classical Jewish literature refers both to a “soul” and a “life.”

רש"י על סנהדרין ע״ב ב:י״ד

יצא ראשו - באשה המקשה לילד ומסוכנת וקתני רישא החיה פושטת ידה וחותכתו ומוציאתו לאברים דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו אבל יצא ראשו אין נוגעים בו להורגו דהוה ליה כילוד ואין דוחין נפש מפני נפש

Rashi on Sanhedrin 72b:14

its head came out: With a women that is experiencing difficulty giving birth and is in [mortal] danger. And it is taught in the first section [of this teaching], "the midwife extends her hand and cuts it up and extracts [the pieces];" as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.

Notably, Rashi defines a nefesh--a life--as taking place at birth, as the head emerges from the birth canal. A fetus does not have this status before then. Rashi may be referencing Genesis 2:7: “Then God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.” That is, regarding life as taking place with the first breath, and not before.

Here are a couple more recent texts that show some of the ways in which these texts above have been applied:

משנה תורה, הלכות רוצח ושמירת נפש א׳:ט׳

(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:

Mishneh Torah, Murderer and the Preservation of Life 1:9

(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a rodef (one who seeks to kill you; self-defense, then, is regarded as a commandment.)
On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother.
If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.

Note the addition of another method of abortion in this halakha, above--”whether with a drug or by hand.” Medication abortion was permitted in Judaism as early as the 12th century. Note also that Maimonides is explicit that abortion to save the pregnant person's life is not just permitted, or recommended, but required--obligatory. A mitzvah.

Rabbi Yehudah ibn Ayyash of Algeirs, ‘She’eilot U’tshuvot’ Beit Yehudah, part “Even haEzer,” Siman 14, 1740. Translation by Rabbi Margaret Hughes-Robinson

I was asked and searched my heart/intellect to examine and explore what I had heard about a small group of women who become pregnant and do not want to give birth again, and who do not want to remain pregnant any more [once they had already conceived]. And some of these women…make a medication and drugs that are known to them to terminate a child, and he will become a nefel– a nonviable fetus…Behold– we have before us exactly what everyone acknowledges [is an acceptable situation where an abortion would be permitted], ..and [the mother] is permitted to drink an abortive drug, so it seems, according to my understanding of the issue.

An extremely respected rabbi, head of the rabbinic court of Algiers, was sent a letter about some women who had been using some sort of herbal medicine to self-manage their own abortions. Is this permitted according to Jewish law? The questioner wanted to know. Are they transgressing their commitments to the Divine? It should be noted that ibn Ayyash refers to scenarios in which what we would now both call "self-managed abortion" and "medication abortion," are taking place--and that nowhere in the full responsum does he say that husbands should be consulted, or that a rabbi should be called in to check specific cases, or anything of the sort. It appears that he trusts these women to make their own assessments about what is appropriate for them.

אמנם נדון השואל בא"א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה...וגם בעובר כשר הי' צד להקל לצורך גדול. כל כמה דלא עקר. אפי' אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ"ע.

Rabbi Jacob Emden, Responsa She’elat Ya”vetz 1:43 (1739-1759)

The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain...

Here, abortion is permitted in situations where carrying the fetus to term would cause "woe" and "great pain." One might wonder if any situation in which one is forced to carry an unwanted pregnancy would not cause such things.

Notably, Rabbi Emden goes out of his way to permit abortion for nontheraputic reasons not only in the specific case at hand--when conception happens as the result of an adulterous relationship, leading any resulting child to have a significantly stigmatized status in the Jewish community (mamzer)--but, rather, even in cases where a pregnancy is the result of a legitimate relationship, assuming emotional suffering is part of the equation. If abortion is permitted, the logic goes, it is permitted in those other cases as well.

ברור ופשוט הדבר בהלכה דישראל אינו נהרג על העוברין, ומלבד דעה יחידית סוברים הפוסקים שאיסור מיהא ישנו, אבל דעת הרבה מהפוסקים שהאיסור אינו אלא מדרבנן, או הוא רק משום גדר בנינו של עולם, אבל מחמת איבוד נפשות אין נדנוד כלל, ומשום כך מתיר בשו"ת מהרי"ט ט:צ"ז–צ"ט לסדר בישראלית הפלת ולד בכל היכא שהדבר נחוץ משום רפואת אמו, אפילו באין סיבה של פקו"נ לאם... ובכזאת, ויותר מזאת, צידד להתיר בהדיא בשו"ת שאילת יעב"ץ א:מג, וכותב בלשון: "וגם בעובר כשר יש צד להקל לצורך גדול כל כמה דלא עקר אפילו אינו משום פקוח נפש אמו, אלא להציל לה מרעתו שגורם לה כאב גדול." הרי בהדיא שדבר הצעת ההיתר בזה של היעב"ץ הוא אפילו כשליכא בכאן שאלת פקו"נ של האם, והמדובר רק כדי להצילה מכאב גדול שיש לה בגללו, ושבכלל יש להקל בזה לצורך גדול.... ויסורים וכאבים נפשיים המה במדה מרובה הרבה יותר גדולים ויותר מכאיבים מיסורים גופיים.

Rabbi Eliezer Waldenberg, Tzitz Eliezer 13:102 (1978)

It is clear and obvious as law that a Jew is not killed for a fetus. Aside from one view, the authorities rule that there is a prohibition, but many authorities believe that this prohibition is rabbinic, or it is under “building the world.” But there is no concern for destroying a life, and therefore Maharit 1:97-99 permits arrangement for a Jewish woman to abort a fetus where it is needed for the mother’s health, even without it being a matter of saving the mother’s life… And in such a case, and beyond this, Rabbi Yaakov Emden permitted, writing, “And even with a legitimate fetus, there is room to be lenient for great need, so long as it has not been uprooted [for birth], even without a need to save the mother’s life, but only to save her from her evil, which causes her great pain.” We see clearly that this permission of Rabbi Yaakov Emden is even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. ...And suffering and emotional pain in great measure are greater and more painful than physical pain.

Here, Rabbi Waldenberg is talking about the great emotional pain a pregnant person might experience knowing that the fetus has been diagnosed with a disease like Tay-Sachs, but the larger legal framework stands: There is room in the tradition to permit abortion in order to relieve someone who is pregnant from “great emotional pain.” And, again, one might speculate that any person who is forced to carry to term an unwanted pregnancy could, indeed, experience exactly that.

Rabbi Ben Zion Chai Uziel, Responsa Mishaptei Uziel 4:46 (1947-1964)
It is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent disgrace, then we have precedent and authority to permit it.
Again, there must be some reason for an abortion, but it can even be a "slim reason", such as to prevent disgrace--which is a social concern, akin to the adulterous woman's case. So even if the issue is not about the pregnant person's physical or emotional health, if there are other key factors to consider, they merit inclusion. Both the social and emotional context of the pregnant person matter, and both are possible grounds for termination of a pregnancy. Even for a slim reason.
Many Jewish values can and should factor in to our understanding of the importance of abortion access for all. Dignity, caring for ourselves emotionally and physically, valuing relationships, and other factors--including also, perhaps, our Jewish mandate to pursue the creation of a more just society--should be present as we consider both individual cases (and remember that not everyone has the same privileges, or the same choices) and larger systems.

Abortion is not only permitted in Jewish law, but it is required when the life of the pregnant person is in danger.

Our access to reproductive health care is guaranteed not only by the Fourteenth Amendment ━ the right to equality and privacy ━ but also by the First Amendment’s guarantee that no one religion or religious interpretation will be enshrined in law or regulation. The fact that the Supreme Court does not currently recognize this does not change the fact that we are entitled to these rights under law.

We must not remain idle while barriers to health care place any individual’s health, well-being, autonomy, or economic security at risk.

Abortion justice is a Jewish issue.

Rabbi Danya Ruttenberg

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