By Dr. Rachel S. Mikva
Associate Professor of Jewish Studies
Chicago Theological Seminary
Traditional Jewish practice is based on careful reading of biblical and rabbinic teachings. The process yields “halakha,” generally translated as “Jewish law” but deriving from the Hebrew root for walking a path.
Even though many Jews do not feel bound by “halakha,” the value it attaches to ongoing study and reasoned argument fundamentally shapes Jewish thought.
The majority of foundational Jewish texts assert that a fetus does not attain the status of personhood until birth.
Although the Hebrew Bible does not mention abortion, it does talk about miscarriage in Exodus 21:22-25. It imagines the case of men fighting, injuring a pregnant woman in the process. If she miscarries but suffers no additional injury, the penalty is a fine.
Since the death of a person would be murder or manslaughter, and carry a different penalty, most rabbinic sources deduce from these verses that a fetus has a different status.
An early, authoritative rabbinic work, the Mishnah, discusses the question of a woman in distress during labor. If her life is at risk, the fetus must be destroyed to save her. Once its head starts to emerge from the birth canal, however, it becomes a human life, or “nefesh.” At that point, according to Jewish law, one must try to save both mother and child. It prohibits setting aside one life for the sake of another.
Although this passage 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.
Other Jewish scholars point to a different Mishnah passage that envisions the case of a pregnant woman sentenced to death. The execution would not be delayed unless she has already gone into labor.
In the Talmud, an extensive collection of teachings building on the Mishnah, the rabbis suggest that the ruling is obvious: the fetus is part of her body. It also records an opinion that the fetus should be aborted before the sentence is carried out, so that the woman does not suffer further shame.
Later commentators mention partial discharge of the fetus brought on by the execution as an example – but the passage’s focus on the needs of the mother can also broaden the circumstances for allowing abortion.
Originally published by The Conversation, 05.19.2019, under the terms of a Creative Commons Attribution/No derivatives license.