Old Testament Thought – Exodus: the Book of Redemption – Mishpatim (Laws) – Text and Interpretation: The Case of Abortion

Moses Receives the Tablets of the Law – Jao Zeferino Da Costa (1868)

Exodus 21:22-25

Mishpatim מִּשְׁפָּטִים

          The Torah portion titled Mishpatim (Hebrew for “laws”) fleshes out the “details of the predominantly civil law that was to govern the Israelites such as laws relating to slaves and their release, personal injures and property laws, laws of social responsibility, justice and compassion, and laws relating to Shabbat and the festivals.  It ends with the ratification of the covenant, and Moses ascending the mountain for forty days.” [1]

Text and Interpretation:  The Case of Abortion

          The issue de jour of late is the question of whether various state laws which have recently been passed are in accord with the Constitution of the United States.  The general consensus of opinion seems to be that these recently passed laws are a strategy to bring before the United States Supreme Court a challenge to its precedent in the case of Roe v. Wade which established the right of a woman to obtain an abortion except in very limited circumstances.  Those proposing these state laws seek to “criminalize” abortion in any form and level a criminal penalty on those who perform them on the basis of a theology which concludes that an unborn fetus is a legal person and an abortion of that person is equivalent to homicide. 

          In a recent article in The Conversation Professor Rachel Mikva an associate professor of Jewish Studies at the Chicago Theological Seminary stated that, “there is more than one, religious view on abortion” and she then proceeds to examine the Jewish texts on the subject.  Her conclusion is “that the majority of foundational Jewish texts assert that a fetus does not attain the status of personhood until birth.” “And although this passage (Exodus  21:22-25) reinforces the idea that a fetus is not yet a human life, some orthodox authorities allow abortion only when the mother’s life is at risk.”

          Coincidentally in Sacks there is an essay titled “Text and Interpretation: The Case of Abortion”.  The Rabbi’s theme of the essay is summed up in the opening paragraph:

Behind Jewish belief in Torah shebe’al Peh, the “Oral Law” lies a fundamental truth.  The meaning of a text is not given by the text itself.  Between a text and its meaning lies the act of interpretation – and this depends on who is interpreting, in what context, and with what beliefs.

          He goes on to say that without an authoritative tradition of interpretation there would be chaos.  This is what Professor Mikva refers to as the halakha or “Jewish law” which she describes as the result of “a careful reading of biblical and rabbinic teachings.” 

          The Babylonian Talmud demonstrates how this works.  A convert to Judaism went to the great sage Hillel and asked to be converted but only to the Written but not to the Oral Law. The great sage made no protest.  On the first day of instruction Hillel taught him the first four letters of the Hebrew alphabet: aleph, bet, gimmel, daled. On the next day he taught him the same letters in reverse order: daled, gimmel, bet, and aleph.  The convert protested and said that yesterday he had been taught the reverse.  You see said the sage you have to rely on me even to learn the alphabet.  Rely on me when it comes to the Oral Law.”[2]

          As current events clearly show the subject of abortion remains deeply contentious.  The passage cited by Professor Mikva and also by Rabbi Sacks, Exodus 21:22-23, does not deal with abortion per se but the consequences of injuries to a pregnant woman as a result of a fight between two men.  If the woman is accidentally injured and caused to miscarry then the offender must pay damages to the husband or as a court shall determine, but if the woman is killed then there must be a life for a life.[3]

          Rabbi Sacks points out that the Hebrew word ason is commonly translated as “fatal injury” but can also mean “mischief, evil, harm, calamity or disaster.  Jacob uses the word when his sons tell him that Joseph then the viceroy of Egypt has commanded them to bring Benjamin, their youngest brother, back to Egypt with them in order to prove they are not spies. Jacob initially refuses permission lest Benjamin should meet with disaster (ason) and it “send my white head down to the grave in sorrow (Genesis 44:29).[4]

          According to Rabi Sacks one thing is clear from studying the Jewish sages and that is that causing a woman to miscarry and thereby killing the unborn foetus is not a capital offense with regard to halakha. Until birth the foetus (also spelled fetus) does not have the legal status of a person according the sages in the land of Israel. [5]

          And now the plot thickens as the interpretation of the word “ason” by an Alexandrian Jew named Philo was to “play a significant part in the religious development of the history of the West not because it had an impact on Jews but rather on Christians. 

          In commenting on the text in Exodus 21:22-23 Philo used the Septuagint version of the Hebrew Bible which was in Greek.  In explaining the principles of Jewish law to a non-Hebrew reading public, Philo turns to this passage from Exodus and renders it as follows:

But if anyone has a contest with a woman who is pregnant, and strikes her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he has committed and also he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence.  But if the child which was conceived has assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; for such creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.[6]

          Note that the emphasis has shifted from the concern about the extent of the injury to the third party, the woman, to an emphasis on the stage of formation of the foetus and its potential death.  Its death, per Philo, constitutes homicide or foeticide. Philo was using the Septuagint version of the scriptures which translates “ason” not as “calamity,  but rather as “form”.

          The first Christians wrote their texts in Greek rather than Hebrew and they were intensely dependent on the Hebrew Bible.  As the Gnostic Marcion discovered the Church denounced any attempt to remove Christianity completely from the Hebrew Bible as heresy. And, because of the heavy influence of the Greek the early Christian teaching on abortion followed Philo rather than the sages of Israel.  Augustine stated that the key distinction was between embryo informatus and embryo formatus – an unformed and formed foetus. [7] If a foetus was formed [8] then causing its death was murder.  This was the rule taught by Tertullian[9] in the second century which remained so until Pope Sixtus V decreed that abortion at any stage was murder.[10]  His decree was vacated by Gregory XIV in 1866[11] but then reinstated by Pius IX in 1869.[12]

          As both Professor Mikva and Rabbi Sacks conclude while in Jewish law a foetus may not be regarded as a “person” it is a potential person and must be protected.  But the difference between Judaism and Roman Catholic and Fundamentalist Christian theology is that in Judaism abortion is not murder whereas in Catholicism and Fundamentalism it is.

          Rabbi Sacks noted that the difference in theological positions has arisen because of the interpretation of a single word, ason. [13] He notes further that “without tradition, and all the sages meant by “the Oral Law” we would simply not know what a verse means.  Between a text and its meaning stands the act of interpretation.  Without rules to guide us – rules handed down across the generations – we would be in the same position as Hillel’s student, unable even to begin. [14]


[1] Jonathan Sacks, Exodus:  The Book of Redemption, Maggid Books (Jerusalem 2010). This blog entry follows the form and  ideas of Rabbi Sacks essay with some additions and commentary.  It is not meant as an authoritative commentary or the product of original research.  All due credit must go to Rabbi Sacks, and to Professor Rachel Mikva whose comments are used under a license through creative commons. . 

[2] Sacks, page 168.

[3] Ibid.

[4] Ibid, page 169, note 3 states that “ The word appears three times in the Jacob-Joseph-Benjamin story (Genesis 42:4, 42:38, 44:29) and twice in the present context (Exodus 21:22,23). These are the only occurrences in the Hebrew Bible.

[5] Ibid, page 169.

[6] Philo, The Special Laws, III: XIX, ed. Leopold Cohn, vol 5:180-182, and as cited in Sacks at page 170.

[7] Augustine, Questiones in Exodum 80. See note 9 of Sacks, page 171.

[8] Forty or Eighty days?  There was disagreement as to the period.

[9]  Sacks, note 10 page 171:  Tertullian, Treatise on the Soul XXXVII: “On the Formation and State of the Embryo.” On the history of Christian attitudes to abortion, see E. Westermarck, The Origin and Development of the Moral Ideas (London: Macmillan, 1906). Some scholars disagree and argue that Tertullian taught that all abortion at whatever stage was murder.

[10]  Effraenatam, of 28 October 1588. 

[11] See  Nicholas Terpstra, Lost Girls: Sex and Death in Renaissance Florence (Johns Hopkins University Press 2010 ISBN 978-0-8018-9499-2), p. 91

[12] Apostolicae Sedis moderationi

[13] Some sources indicate that there was much more to this than the Septuagint translation of ason . While Catholic bishops claim that the condemnation of all abortion started from the beginning of the Church that position has been refuted by a number of scholars according to some sources.  However, the same sources indicate that the earliest Church legislation condemned abortion in all forms, There is a divergence of opinion on this issue. See Wikipedia contributors, “Catholic Church and abortion,” Wikipedia, The Free encyclopedia,https://en.wikipedia.org/w/index.php?title=Catholic_Church_and_abortion&oldid=898184309

(accessed May 24, 2019).

[14] Sacks, page 172.

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