This learning has been developed with NCJW, the National Council of Jewish Women.
Abortion is one of the more charged topics in American political discourse.
Proposals to limit or block access to reproductive health care in most states reflect a specific Christian definition of the beginning of life, and limit the termination of pregnancy even in instances where Jewish law not only permits, but even requires it. Learning the sources that undergird Judaism’s approach to reproductive rights can help illuminate one of the major struggles of our day in new and, sometimes, surprising ways.
(One content note: These texts talk, not surprisingly, about pregnant women. In the context of our contemporary gender categories, it might be useful to remember that, while many (but not all) cisgender women can get pregnant, so too can some non-binary people, some trans men, and some other people whose identities are not reflected in the framework of binary gender.)
Let’s begin by looking at the question of the personhood of a fetus:
In other words, if someone accidentally causes a miscarriage to take place, they are obligated to pay financial damages only; the case is not treated as manslaughter or murder, which would demand the death penalty. The “other damage” that would demand the death penalty (“life for life”) would be the death of the pregnant person herself (or some other serious punishment relating to the damage caused--”eye for eye, tooth for tooth…”) In other words, causing the termination of a pregnancy is not, in the Torah, considered murder. As the Talmud puts it:
Interestingly, a major factor in some Christian views on abortion were developed through a mistranslation of this passage. In the Greek translation of the Hebrew Bible (known as the Septuagint, completed in 132 BCE), they translated ason, damage or tragedy in these Exodus verses, to exeikonismenon, “from the image,” making the verse seem to be about whether or not the fetus is “perfectly formed,” rather than whether or not the pregnant person dies. That is, the question of whether one pays mere damages or incurs the death penalty would then depend on whether the fetus is “formed,” or sufficiently developed in terms of gestational stages, to warrant a harsher punishment. Notably, the Septuagint translated the word ason in a different, more accurate, way (as malakia, affliction) in the Book of Genesis. There are a few theories as to why this happened, but the ramifications of this poor translation choice continue to this day.
The next few sources look more closely at the status of the fetus:
יבמות ס׳׳ט ב
אי מיעברא עד ארבעים מיא בעלמא היא
If she is found pregnant, until the fortieth day it is mere fluid.
That is to say, the fetus has basically no status whatsoever for the forty days of pregnancy. It is like water--a thing of no legal significance. Was this because of the prevalence of miscarriages? Was it a larger philosophical claim? Regardless, this text is a clear assertion that life does not begin at conception.
It may be worth noting that modern decisors of Jewish law count the 40 days as beginning from conception. Given that contemporary medical practice is to count pregnancy gestation from the last menstrual period--not conception--the end of those 40 days lands at about 7 or 8 weeks of pregnancy, by our current accounting.
גיטין כ׳׳ג ב
מאי טעמא דרבי בהא קסבר עובר ירך אמו הוא
What is the reason for Rabbi Yehuda HaNasi’s position [in the above conversation]? He holds that a fetus is considered as its mother’s thigh [that is, as part of its mother’s body].
In the middle of a Talmudic debate about whether a fetus is considered separate from the pregnant person, we see a clear statement by Rabbi Yehuda HaNasi who, as redactor of the Mishnah, holds great authority. His statement, in fact, closes the debate and lends credence to the discussion at hand (about the status of a fetus if its mother is liberated from bondage.) A fetus is not an independent being; it is part of the body of the person carrying it.
Now, a few sources on ending pregnancies:
In a situation in which the pregnant person’s life is in danger from the pregnancy or labor, Jewish law is abundantly clear: The adult’s life takes precedence. The only situation in which that comes into question is if the birth is already more than half completed--only then does the life of the birthing baby come into consideration. As Rabbi David Felman put it, “Implicit in [this] Mishnah is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth.”
This principle is cited elsewhere in the Talmud in a conversation about self-defense; the Gemara there asserts that abortion to save the pregnant person’s life should be considered self-defense, that the fetus in this case is a rodef, a “pursuer” attempting to kill the pregnant person. Rashi--Rabbi Shlomo Yitzhaki, the important 11th century French commentator addresses that discussion. The word nefesh in classical Jewish literature refers both to a “soul” and a “life.”
Notably, Rashi defines a nefesh--a life--as taking place at birth, as the head emerges from the birth canal. A fetus does not have this status before then. Rashi may be referencing Genesis 2:7: “Then God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.” That is, regarding life as taking place with the first breath, and not before.
Here are a couple more recent texts that show some of the ways in which these texts above have been applied:
אמנם נדון השואל בא"א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה...וגם בעובר כשר הי' צד להקל לצורך גדול. כל כמה דלא עקר. אפי' אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ"ע.
Rabbi Jacob Emden, Responsa She’elat Ya”vetz 1:43 (1739-1759)
The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain...
Here, abortion is permitted in situations where carrying the fetus to term would cause "woe" and "great pain." One might wonder if any situation in which one is forced to carry an unwanted pregnancy would not cause such things.
ברור ופשוט הדבר בהלכה דישראל אינו נהרג על העוברין, ומלבד דעה יחידית סוברים הפוסקים שאיסור מיהא ישנו, אבל דעת הרבה מהפוסקים שהאיסור אינו אלא מדרבנן, או הוא רק משום גדר בנינו של עולם, אבל מחמת איבוד נפשות אין נדנוד כלל, ומשום כך מתיר בשו"ת מהרי"ט ט:צ"ז–צ"ט לסדר בישראלית הפלת ולד בכל היכא שהדבר נחוץ משום רפואת אמו, אפילו באין סיבה של פקו"נ לאם... ובכזאת, ויותר מזאת, צידד להתיר בהדיא בשו"ת שאילת יעב"ץ א:מג, וכותב בלשון: "וגם בעובר כשר יש צד להקל לצורך גדול כל כמה דלא עקר אפילו אינו משום פקוח נפש אמו, אלא להציל לה מרעתו שגורם לה כאב גדול." הרי בהדיא שדבר הצעת ההיתר בזה של היעב"ץ הוא אפילו כשליכא בכאן שאלת פקו"נ של האם, והמדובר רק כדי להצילה מכאב גדול שיש לה בגללו, ושבכלל יש להקל בזה לצורך גדול.... ויסורים וכאבים נפשיים המה במדה מרובה הרבה יותר גדולים ויותר מכאיבים מיסורים גופיים.
Rabbi Eliezer Waldenberg, Tzitz Eliezer 13:102 (1978)
It is clear and obvious as law that a Jew is not killed for a fetus. Aside from one view, the authorities rule that there is a prohibition, but many authorities believe that this prohibition is rabbinic, or it is under “building the world.” But there is no concern for destroying a life, and therefore Maharit 1:97-99 permits arrangement for a Jewish woman to abort a fetus where it is needed for the mother’s health, even without it being a matter of saving the mother’s life… And in such a case, and beyond this, Rabbi Yaakov Emden permitted, writing, “And even with a legitimate fetus, there is room to be lenient for great need, so long as it has not been uprooted [for birth], even without a need to save the mother’s life, but only to save her from her evil, which causes her great pain.” We see clearly that this permission of Rabbi Yaakov Emden is even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. ...And suffering and emotional pain in great measure are greater and more painful than physical pain.
Here, Rabbi Waldenberg is talking about the great emotional pain a pregnant person might experience knowing that the fetus has been diagnosed with a disease like Tay-Sachs, but the larger legal framework stands: There is room in the tradition to permit abortion in order to relieve someone who is pregnant from “great emotional pain.” And, again, one might speculate that any person who is forced to carry to term an unwanted pregnancy could, indeed, experience exactly that.
Abortion is not only permitted in Jewish law, but it is required when the life of the pregnant person is in danger.
Our access to reproductive health care is guaranteed not only by the Fourteenth Amendment ━ the right to equality and privacy ━ but also by the First Amendment’s guarantee that no one religion or religious interpretation will be enshrined in law or regulation.
We must not remain idle while barriers to health care place any individual’s health, well-being, autonomy, or economic security at risk.
Reproductive justice is a Jewish issue.
The National Council of Jewish Women (NCJW) is a grassroots organization of volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. Learn more at NCJW.org