Wrestling With The Jewish View On Abortion

With Dr. Kermitt Gosnell being convicted this afternoon of first-degree murder of three babies that were born alive during abortion procedures (and involuntary manslaughter of an adult patient), I felt it was important to share Judaism’s stance on abortion.  This is not an easy subject and there are many different opinions.  The Jewish position does not in any way condone the horrendous actions of Dr. Gosnell.  The Jewish position does, however, capture many of the complexities involved with the abortion issue.  Some of the texts below are difficult to read and will get you thinking and feeling lots of emotions; these texts can also be interpreted differently.  When it comes down to it – Judaism teaches us that abortion is an extremely difficult, emotional, spiritual issue that forces us to wrestle with life and death.

At the foundation of the Jewish view of abortion are the teachings that state that a fetus is not a life (yet). Until forty days after conception, an embryo inside its mother is referred to as “mere fluid”. Furthermore, an unborn fetus is not considered a person until it has been born. Until it begins to leave the mother’s body during childbirth, a fetus is regarded as a part of its mother’s body and not a separate being.  This being said, as part of the mother’s body, a fetus is indeed something special.  Certainly, Judaism sees the creation of life as a holy process.  As such, Judaism fights for the life of the unborn child, while, at the same time, making abortion permissible in cases where the mother’s life is in danger.

The Torah teaches that “should men quarrel and hit a pregnant woman, and she miscarries but there is no other misfortune, he shall surely be punished, when the woman’s husband makes demands of him, and he shall give [restitution] according to the judges’ [orders].  But if there is a misfortune, you shall give a life for a life” (Exodus 21:22‑23)

The medieval scholar, Rashi, teaches that “no other misfortune” means that the woman is not killed.  (If she is “you shall give a life for a life.”) Because of this, the attacker only pays financial compensation for having caused the miscarriage.

Many Jewish scholars agree with Rashi’s interpretation.  The focus is placed upon the attacker paying damages to the woman and her husband for the loss of the fetus. As troubling as it might be for some that there is no discussion of killing an unborn child, the fact that there is no discussion of manslaughter or murder is important: the unborn fetus is not legally a “person” according to Judaism.

In the Middle Ages, Moses Maimonides taught: “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 does not discuss the status of the miscarried fetus. Again, it is part of the mother and belongs jointly to her and her husband, and thus damages must be paid for its death. The one who was responsible for the miscarriage is not guilty of murder, since the unborn fetus is not considered a person.

The Torah teaches that “he that smites a man so that he dies shall surely be put to death” (Exodus 21:12) and  “he that smites any person mortally shall surely be put to death.” (Leviticus 24:17)  The rabbis teach that these verses apply to a person and since they did not see a fetus is as a person,  the destruction of an unborn fetus is not considered murder.  Consequently, one who causes the miscarriage of a fetus is not to be given the death penalty.

While the fetus is not considered to be a person, the rabbis teach that the fetus does have the potential to become a person.  As such, the rabbis struggle with its status.  In a text that is hard to read, the Mishnah teaches: “if a woman is having difficulty in giving birth [and her life is in danger], one cuts up the fetus within her womb and extracts it limb by limb, because her life takes precedence over that of the fetus. But if the greater part was already born, one may not touch it, for one may not set aside one person’s life for that of another.”  This section of Mishnah refers directly to abortion – teaching that a pregnancy may be terminated if the life of a woman is in danger (and there is a lot of room for interpretation here).  However, once the majority of the fetus has emerged (some argue just the head) from its mother, it is considered a “life” and may not be harmed in any way.

Dr. Gosnell has been convicted of killing babies that were born alive.  What he did was not only a violation of American law – it is a blatant violation of Jewish law.  There will be much discussion about this case in the coming weeks and months.  American law should guide this discussion; however, knowing where we stand on this complicated and emotional issue is important.

I welcome any questions or comments.