Following the US Supreme Court’s ruling to overturn Roe vs. Wade, I found it hard to cope and feel very empathetic towards American women who will no doubt suffer as a result of this new reality. As an orthodox Jew, I found it crucial to restudy the Torah’s outlook on abortion.
From what I’ve read, there are only three sources that deal with abortion in the Mishnah. Here, I will attempt to study each one and reveal modern insights.
The first is found in Mishnah Bava Kamma 5:4:
שׁוֹר שֶׁהָיָה מִתְכַּוֵּן לַחֲבֵרוֹ וְהִכָּה אֶת הָאִשָּׁה וְיָצְאוּ יְלָדֶיהָ, פָּטוּר מִדְּמֵי וְלָדוֹת. וְאָדָם שֶׁהָיָה מִתְכַּוֵּן לַחֲבֵרוֹ וְהִכָּה אֶת הָאִשָּׁה וְיָצְאוּ יְלָדֶיהָ, מְשַׁלֵּם דְּמֵי וְלָדוֹת. כֵּיצַד מְשַׁלֵּם דְּמֵי וְלָדוֹת, שָׁמִין אֶת הָאִשָּׁה כַּמָּה הִיא יָפָה עַד שֶׁלֹּא יָלְדָה וְכַמָּה הִיא יָפָה מִשֶּׁיָּלָדָה. אָמַר רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, אִם כֵּן, מִשֶּׁהָאִשָּׁה יוֹלֶדֶת, מַשְׁבַּחַת. אֶלָּא שָׁמִין אֶת הַוְּלָדוֹת כַּמָּה הֵן יָפִין, וְנוֹתֵן לַבַּעַל. וְאִם אֵין לָהּ בַּעַל, נוֹתֵן לְיוֹרְשָׁיו. הָיְתָה שִׁפְחָה וְנִשְׁתַּחְרְרָה, אוֹ גִיּוֹרֶת, פָּטוּר
Translation from Neusner: “An ox which was intending to gore its fellow, but hit a woman, and her offspring came forth as a miscarriage– the owner of the ox is exempt from paying compensation for the offspring. And a man who was intending to hit his fellow man but hit a woman, and her offspring came forth, pays compensation for the offspring. How does one assess compensation for the offspring? They make an estimate of the woman’s value before she gave birth, and how much she is worth now. Said Rabban Simeon b. Gamaliel, ‘if so, once a woman gives birth, she should gain in value!’ ‘But: They make an estimate of the offspring’s value.’ And one pays the husband. But if she does not have a husband, the owner of the ox pays the husband’s heirs. If she was a slave girl who was freed, or a convert, the man is exempt from paying compensation.”
How is the miscarriage compensated for?
The woman is assessed — how much she is worth on the slave market before giving birth and how much after giving birth and she will get paid the difference. However, R. Shimon b. Gamliel says that she is actually worth more after giving birth because her life is no longer at risk. Therefore, she is not compensated. Rather, she is compensated for what could have been, the value of the child, but the husband gets the money. The payment for the damages to the woman herself is a payment to the woman and the payment for the loss of the offspring is a payment to her husband. (This could be because the man is responsible for the family so a loss in the family directly affects his role in providing. It could also be because the offspring carries on the legacy of the father and his family name, not the mother, so the heir is more valuable to the father than to the mother.)
Why can a miscarriage be paid off but a murder cannot?
According to the Torah, usually a person who accidentally kills another person cannot pay in order to atone for his crime, rather he is exiled to a refuge city. However, in the case described in this verse the person did not kill an independent human being but rather he caused a miscarriage. Therefore, the Torah allows him to make financial compensation for the loss of the fetus/baby.
This source raises questions of what is considered a life, if you can compensate a miscarriage with money. One could potentially argue from this verse that according to the Torah, a fetus is not equal to a born human being. However, an exemption from murder charges for one who accidentally causes a miscarriage is not necessarily an approval for abortion.
Let’s explore another source. This is the most famous source on abortion and it is found in Mishnah Ohalot 7:6:
הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:
Translation from Neusner: “The woman who is in hard labor– they chop up the child in her womb and they remove it limb by limb, because her life takes precedence over his life. If its greater part has gone forth, they do not touch him, for they do not set aside one life on account of another life.”
When can the baby be aborted to save the mother?
While still in the womb, the mother’s life takes precedence over the fetus’s. Therefore, the doctors may abort the fetus in order to save the mother. Rashi on Sanhedrin 72b:14 “as the entire time that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. (Translation from Artscroll) Indeed, one might even go so far as to not call it a life, because it is still in the womb. Maimonides explains that the fetus is considered a life, but it is also considered a “rodef” (a killer chasing a person) and therefore, one must still kill it.
When can the baby not be aborted to save the mother?
Once most of the child has emerged, it is forbidden to do anything to harm the child because it is forbidden to take one life in order to save another. The child is considered to be a “life” once most of it has emerged from the womb. Rashi on Sanhedrin 72b:14 “But when its head comes out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.” (Translation from Artscroll)
The Gemara in Sanhedrin 72b:14 answers: “With regard to the woman giving birth, since she is being pursued by Heaven. Since the fetus is not acting of his own volition and endangering his mother of his own will, his life may not be taken in order to save his mother.” In this scenario, where the baby is half out, both mother and baby are each other’s Rodef and have equal claim to live. (One can now follow up and ask on rambam, why only when it’s partially out is the baby considered an atypical rodef and therefore can’t be killed, while when it’s still inside it is considered a real rodef and can be killed? There is no recorded answer.)
This is only outright source that allows abortion. It raises questions of when a fetus is considered a life if one can abort a fully formed baby because at that moment it is still in the womb. Allowing an abortion up until the last moments before birth is radically liberal compared to contemporary opinions that decide based on the stages of pregnancy and fetus formation.
Let’s look at the last source, found in Gemara Sanhedrin 57b, which quotes from earlier times: Rabbi Ishmael, who was a Taana in the time of the Mishnah, is quoted in the book of Aggadah from the Academy of Rav.
אשכח ר’ יעקב בר אחא דהוה כתיב בספר אגדתא דבי רב בן נח נהרג בדיין א’ ובעד אחד שלא בהתראה מפי איש ולא מפי אשה ואפילו קרוב משום רבי ישמעאל אמרו אף על העוברין
Translation from Artscroll: “Rav Yaakov bar Acha found that in the book of Aggadah in the academy of Rav was written: A Noahide is executed by one judge on the basis of one witness without warning. From the mouth of a man, but not from the mouth of a woman: and even a relative. In the name of R’ Yishmael they said: ‘Even for fetuses.’”
What is the source in question?
שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ כִּ֚י בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם׃ (Bereshit 9:6) “Whoever sheds man’s blood, by man shall his blood be shed for in the image of God, was humankind made.” The simple meaning is “Whoever sheds a man’s blood, through another man’s testimony, his (the murderer’s) blood shall be shed.” A kills B, C testifies against A to get A killed. Through C’s testimony, A is killed. Rabbi Yishmael understands the verse as, “whoever sheds the blood of a man in a man, his blood shall be shed.” A human in a human is a fetus. Meaning, abortion is punishable by death for a Noahide.
Does the term ‘Noahides’ come to teach that this only applies to non-Jews?
According to Sanhedrin 59a: ליכא מידעם דלישראל שרי ולעובד כוכבים אסור “There is nothing that for a Jew is permissible and for a non-Jew is prohibited.” When Hashem commanded Noah, He meant to include Jews as well. Tosofot derives from here that there must be a prohibition for Jews against abortion, one that is akin to murder. Just because a Jew does not get the death penalty does not mean that the abortion is permissible for Jews.
In the times of the Mishnah, Romans killed fetuses of unwanted pregnancies, so Rabbi Yishmael understands the pasuk this way to tell the non-Jews of his time that abortion is a major sin and is punishable by death (Weiss in Dor Dor V’Dor Shav.) It is not explicitly written that this also applies to Jews, and that could be because Jews at that time did not find themselves in situations of unwanted pregnancies because there was less adultery and rape in Jewish communities.
This source teaches that killing a fetus is considered murder and therefore punishable by death for non-Jews. Through the commentaries we understand it is also forbidden to Jews, however, a Jew would not receive capital punishment.
Conclusion about abortion in the Mishnah:
It was common for Roman women to abort unwanted pregnancies, which shows that Romans viewed fetuses as property that can be aborted. Conversely, Rabbis of the Mishnah believed it is a life or, at least, a potential for life and the removal of it will come at a cost, either monetary loss or punishment. They believed that the fetus could only be aborted if the mother was in danger, and even then, the Rabbis believed that a fetus holds unalienable rights equal to a human being if the fetus is already halfway out. Jewish women terminating unwanted pregnancies doesn’t seem to have been a common occurrence because it is not discussed in the sources. If a Jewess were to find herself in this situation at that time, one can guess that it would also be prohibited, because the Torah values life, in and of itself, and forbids murder, derived from the verse, “You shall not murder” (Shemot 20:13). However, we don’t know if it would be punishable by death like it is for non-Jews.
The first two sources raise many interesting questions of what is considered a life and when is it considered a life, which can lead us to many possible conclusions and opinions on unwanted pregnancies and modern-day abortions. They also seem to reflect what would now be deemed as ‘very liberal views,’ in terms of how late a fetus is still not considered a life. The second source seems to suggest that it is not considered a life until the majority of it has emerged. The last source, however, is less gray and seems to tell modern society that abortion is not allowed at all. We do not know the Torah’s stance on abortion after rape or abortion due to unfit mothers, as it is never mentioned.
Today, there are a myriad of opinions. Rav Moshe Feinstein holds that abortion is murder, plain and simple. He argues that abortion is only moral where the life of the mother is directly at stake, beyond a shadow of a doubt. Rav Jonathon Sacks holds that abortion is not murder, rather it is taking away the potential of a life. Rav Ya’akov Kamenetsky calls abortion a form of murder after 40 days from inception. The Rabbanut Authority in Israel, grants abortion on a case by case ruling. Unmarried women or women under the age of 18 almost always have access to abortion in Israel. (Obviously, in life threatening situations, abortion is always legal.) There are many more opinions across the spectrum of Judaism and vary based on the specific scenarios in question. The main takeaway is that it is not a simple answer. I believe Israel is correct in dealing with abortion case-by-case. This way, the right to abortion is not abused, and those that need an abortion are protected by that right.
“By now, abortion should be obsolete. And I – and probably a lot of other feminists – wish it were obsolete, because abortion, in itself, is not a value – it is simply the right to chose, which is an essential value.” — Betty Freidan