In making abortion a crime in Alabama, Georgia, Ohio and other states, Republicans have used the criminal statutes to enforce a religious viewpoint that some, but by no means all, Christians share. I have no doubt that any poll would show virtually unanimous support for murder, rape, assault, arson, robbery, burglary and theft remaining crimes, for which perpetrators of these crimes should be prosecuted and, in appropriate situations, sent to prison if convicted. Yet there is no consensus for sending doctors who perform abortions, or women who get abortions, to prison. No doubt many who support murder, theft and perjury being crimes will cite the Sixth, Eighth, and Ninth Commandments, but virtually everyone, religious and atheists, concur that murder, theft and perjury should be crimes. Not so for abortions.
Being Jewish, I confess to having little knowledge of the New Testament, but I am certain that the Jewish Bible contains no direct reference to abortion. However, the Torah, specifically Exodus 21:22, states:
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.
Thus, according to Exodus 21:22, which Judaism has traditionally held was authored by Moshe Rabehnu — Moses our teacher or Moses our rabbi — an assault on a pregnant woman resulting in the loss of her fetus is not murder, but rather a civil tort for which the assailant must pay monetary damages.
I am aware of three references in the Talmud that touch on the issues of when life begins.
In Mishnah Oholot 7:6 (which generally deals with the laws of uncleanliness caused by the presence of dead bodies), we read:
A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it [the fetus] has come out already they do not touch it [the fetus] because we do not end one life to save another.
Unfortunately, there is no Gemara (post Mishnah rabbinical discussion, from roughly 200 to 500 CE) on any of the Mishnah Oholot — these two sentences are all we have. But a millennium later, Maimonides, in his Mishnah Torah, would explain the passage from Mishnah Oholot:
The sages instructed that when a pregnant woman experiences difficulty in labor, it is permissible to dismember the fetus in her womb, either pharmaceutically or surgically, for it is as if it is pursuing her to kill her. But once he has pushed out his head, one does not touch him, for one does not set aside one life on account of another, and this is the way of the world.
Elsewhere in the Talmud, Sanhedrin 57b, there is a discussion in which Rabbi Ishmael is quoted as saying that a ‘heathen” is executed “even for the murder of an embryo.”
What is Rabbi Ishmael's reason? Because it is written [Genesis 9: 6] , “Whoso sheds the blood of man within [another] man, shall his blood be shed.” What is a man within another man? — An embryo in his mother's womb.
But the other rabbis appear to reject Rabbi Ishmael’s assertion. Modern scholars have concluded that Rabbi Ishmael’s use of the word “heathen” was a reference to the Roman soldiers occupying Israel who raped and murdered pregnant as well as non-pregnant Jewish women. Around the year 30 CE, the Romans took away the authority of the Sanhedrin to decide capital cases, and even before then, neither the Romans nor the Persians who usually ruled Babylon would have allowed the rabbis to try a non-Jew in a capital case. Centuries later, Maimonides would write in the Mishnah Torah that the execution Rabbi Ishmael was referring to was at the “Hands of Heaven” and not at the hands of a court.
In the Babylonian Talmud, Yevamot 69b, the rabbis discuss the seemingly unrelated question of whether the daughter of a Temple priest (Kohan), who has had sexual intercourse with a non-Kohan, may continue to eat sacrificial meat reserved solely for the priests (Kohanim). The Mishnah, starting at the bottom of page 69a, states:
If an Israelite (non-Kohan) had intercourse with the daughter of a kohan, she may still continue to eat sacrificial meat, but if she becomes pregnant she may no longer eat.
The theory behind this rule is that as the priesthood was based on patrilineal descent, the child, when born, will not be a kohan. The Gemara continues:
Surely, it was taught: If a kohan's daughter was married to an Israelite [non-kohan] who died, she may perform her ritual immersion and eat sacrificial meat the same evening [on the day of her husband’s death]. Rabbi Hisda replied: “She performs the immersion but may eat sacrificial meat only until the 40th day [after her husband’s death]. For if she is not found pregnant [on the 40th day] she never was pregnant [and may continue to eat sacrificial meat after the 40th day] and if she is found pregnant, the embryo, until the 40th day, is only a mere fluid.” Said Abaye to him: “If so, what about the final clause: ‘If the embryo in her womb can be distinguished [i.e. she is visibly pregnant] she is considered to have committed an offense retroactively [by eating sacrificial meat when pregnant by a non-Kohan]?” — The meaning is that she is considered to have committed an offense [of eating sacrificial meat] retroactively back to the 40th day.
This discussion between Rabbi Hisda and Rabbi Abaye became the basis for the later rabbinic ruling that for the first 40 days of pregnancy, as the embryo is “only a mere fluid,” abortions for any reason may be performed during this early period. Present day rabbinical authorities differ, but there is general support for stem cell research and abortions to prevent the birth of a Tay-Sachs baby, a genetically based disease that particularly afflicts Jews of eastern European origins. A baby born with Tay-Sachs will experience an outwardly normal first six months, followed by increasing pain and paralysis and inevitable death by the age of four. And, of course, there is general agreement that abortion is mandatory to save the life of the mother (based on Oholot 7:6) and permissible if the pregnancy was caused by rape.
As one would expect, the situations where abortions become permissible expand as one moves from Orthodox, to Conservative, to Reform. I know for a fact that ultra-Orthodox women in my neighborhood do get abortions, following consultation with their rabbi, immediately after learning they are pregnant, before or at least close to 40 days (six weeks) from insemination, rabbinical sanction being based on Yevamot 69b. Afterwards, Orthodox authorities will differ as to the degree that the physical and mental health of the mother will justify a later abortion. For Conservative Judaism, the rabbinical assembly's website has links to five responsa authored in 1983 and two responsa authored in 2001, the latter two on so-called “partial-birth” abortions. Rabbi Susan Grossman’s responsum of 2001 concludes:
Abortion is a serious matter not to be entered into lightly, out of respect for the potential life vested in the fetus. Nevertheless, Jewish law considers the fetus part of the mother’s body and not an independent being until birth. Therefore, while the fetus is to be cherished as potential life, the mother’s life and well being takes precedence over that of the fetus until birth. Birth is defined as when the fetal head or majority of its body exits the mother’s body into the open air. Since in the intact d and x procedure, termination takes place when the head and majority of the body remains within the mother, an intact d and x procedure would be among the abortion procedures permissible under Jewish law whenever maternal cause exists which otherwise justifies a late term abortion under Jewish law (i.e., to prevent danger to her physical health or in the face of severe fetal abnormalities causing maternal emotional distress) and when the woman’s physician determines that the intact d and x is the preferred procedure to protect her health and well being. It is therefore permissible under Jewish law for an intact d and x procedure to be performed whenever the patient’s doctor deems it the preferable procedure in the best interests of the woman’s health and well being.
As a Jew, I object to fundamentalist Christians, or state or federal legislatures, enacting a religious stricture that is not part of the Jewish belief, and using the might of the state to enforce their stricture. Religious law should not be forced down people’s throats. How many Jews are demanding the outlawing of the sale of pork? If a fundamentalist Christian believes abortion is a sin, she should not get an abortion. But to impose this view on the rest of us, especially where, as I have shown, religious texts draw a differing view, is flat out wrong, oppressive, and contrary to the prohibition of the establishment of religion that our nation’s founders forbade in enacting the First Amendment.
