Over one thousand rabbis have joined Rabbis for Repro, asserting that Judaism supports the right of women to terminate a pregnancy. The rabbis have lobbied law makers — obviously in Texas unsuccessfully — and held “Repro Shabbats” at more than 350 synagogues, including my own. This morning the The Jewish online publication The Forward reports that these rabbis have awakened to the latest and most severe assault on reproductive rights and are determined to fight back — showing that the Christian fundamentalists who are imposing their warped version of their religion do not represent Jews and others of faith.
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. As far as I can tell, the new Texas travesty makes no exception for a Tay-Sachs baby, condemning the baby to three or four years of physical hell and certain death, and the parents to this emotional torture. 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.
The Talibanists who enacted this law in Texas, and their fellow extremists who will certainly follow in other states, are infringing on the religious beliefs of observant Jewish women who seek to do what is right and just under Jewish law. If these religious extremists do not believe in abortion, then they should not have an abortion, but don’t impose your religious beliefs on us Jews or on anyone else.