It’s hard to believe that some 40 years after the landmark Supreme Court decision in Roe v. Wade, affirming a woman’s right to privacy in abortion matters, abortion is still one of the hottest topics in the presidential campaign. It’s hard to believe that barely a week after Pope Francis addressed the United States Congress, calling for an end to capital punishment, the first woman in 70 years was executed by the state of Georgia. Questions concerning life and death seem never to be resolved, from one generation to the next, and maybe that’s to be expected. These are, after all, the most fundamental of human concerns and they warrant our periodic thinking and rethinking.
But listening to the Republican candidates trying to outdo each other in anti-abortion rhetoric, I thought again about how humane Jewish law is in all aspects of life. Of course there is no single position on abortion among rabbis — do we ever have a single position on anything in Jewish life? — with stricter and more lenient views between Orthodox authorities and those of the more liberal movements, and within the movements themselves. But there is one basic rule for all. That is, a mother’s life always takes precedence over that of an unborn fetus. A fetus represents potential life and is certainly not to be discarded lightly. But it is not a complete life and does not carry full human status. Therefore there is no concern — as there is in Catholicism — about when conception takes place. Nor is the destruction of a fetus regarded as murder. In fact, in the words of the Mishnah, a fetus may be “cut up and brought out limb by limb” if it endangers a woman’s life.
Most Jewish authorities would agree that danger to a woman includes both physical and psychological danger. They would disagree on how severe those dangers need be to permit an abortion, with the more liberal allowing a woman’s mental anguish at an unwanted pregnancy as valid grounds for terminating it. But even the most stringent rabbis have allowed abortions when, for example, a fetus has been diagnosed with Tay-Sachs disease, and its birth would cause the family great suffering. And — as opposed to a Marco Rubio or Mike Huckabee — the majority would permit abortion in cases of rape or incest because of the emotional toll such a birth would cause a woman.
Judaism’s concern for the woman in abortion decisions reflects the absolute value our tradition places on actual human life. Biblical law, often accused of being harsh or overly legalistic, is in reality profound in its approach to life. In other ancient Near Eastern documents, for example, a murderer might pay a fee as punishment for the murder he committed, or worse, substitute someone else to be punished for that crime. In Hittite law, a man who kills someone might deliver a slave, a child, or other family member to be put to death in his stead. In biblical law, such vicarious punishment is never permitted nor can any monetary payment compensate for the destruction of a life. Life is infinitely valuable in Jewish thinking; it cannot be measured in terms of money or property. Therefore the only punishment for someone who slays another is the death of the slayer. By the same token, stealing, looting or any damage to property is never punishable by death, as it is in other early law codes. No property offense can be considered equal to the value of a life, just as no life can be compensated for by any amount of property.
Because the Talmudic sages recognized the invaluableness of human life they accepted the biblical law of capital punishment. But, paradoxically, because they valued life so highly, they were uncomfortable with the idea of snuffing out any human life, including a murderer’s. So they set up so many provisions to be met before a person could be executed for murder that they made the law almost unenforceable. A famous Mishnaic passage states that a court that ordered an execution once in seven years was considered a murderous court. Others said even once in 70 years. Life’s great worth made a murderer fully responsible for her act; it also made the rabbis try to spare even the murderer’s life.
At a time when we hear loud noises from presidential candidates and softer advice from a popular pope, at a time when the world has gone crazy with massive killings, it behooves us as Jews to know where our tradition stands on life and death matters. We may differ among ourselves about abortion rights, capital punishment, or myriad other issues, but the one thing that looms above all else in Jewish tradition is the infinite preciousness of every human life. So, for the year 5776, l’chaim, to life!
Francine Klagsbrun’s latest book is The Fourth Commandment: Remember the Sabbath Day. She is currently writing a biography of Golda Meir.