- Halakha is the general term for Jewish law, though there are many varied specific definitons and relationships to it. While "Halakha" is the larger term, "halakha" is a single law and "halakhot" is multiple laws.
Also, I am not a Halakhic Jew—but I am a Jew who believes in the communal, institutional, and spiritual power of Halakha.
Immense gratitude to Rabbi Danya Ruttenburg's many teachings about Judaism and abortion, which were the basis of much of my own research.
Content Warnings:
- Gendered language about pregnancies
- Mention of miscarriages
The following text is discussing whether or not a person can eat teruma, which was the contribution of crops or dough to the temple sacrifices that is set aside for the priests and their families to eat. You have to have specific levels of relationship to the priests in order to eat teruma.
עִיבְּרָה — לֹא תֹּאכַל בִּתְרוּמָה
נֶחְתַּךְ הָעוּבָּר בְּמֵעֶיהָ — תֹּאכַל
הָיָה כֹּהֵן שֶׁבָּא עַל בַּת יִשְׂרָאֵל — לֹא תֹּאכַל בִּתְרוּמָה
עִיבְּרָה — לֹא תֹּאכַל
יָלְדָה — תֹּאכַל
If [an Israelite] impregnated [a priest's daughter], she may not eat from the teruma. (In contrast to an earlier text which states that if a priest's daughter has non-marital sex with an Israelite man, and isn't pregnant, she may eat the teruma).
If the embryo was severed in her innards, she may eat.
If it was a priest who had non-marital sex with [lit. "came upon"] an Israelite woman, she may not eat from the teruma.
If he impregnated her, she may not eat. (Note: a fetus does not enable its mother to partake, even if that fetus could become the son of a priest.)
If she gave birth, she may eat. (Note: birthing the child of a priest, does enable the mother to partake.)
Key takeaways:
- Rabbinic Hebrew has a specific word for embryos/fetuses, and as such categorically differentiates them and fully-born children.
- A fetus does not change the social category of the pregnant person. A born child does. This would imply, then, that a fetus is not considered a person in Jewish law.
יָצָא הָרִאשׁוֹן מֵת וְהַשֵּׁנִי חַי טָהוֹר
הָרִאשׁוֹן חַי וְהַשֵּׁנִי מֵת טָמֵא
רַבִּי מֵאִיר אוֹמֵר בְּשָׁפִיר אֶחָד, טָמֵא
בִּשְׁנֵי שְׁפִירִים, טָהוֹר
CW: Miscarriage
If [at the birth of twins] the first came out dead, and the second [came out] alive, the [live one] is clean.**
If the first was alive and the second dead, the [live child] is unclean.
Rabbi Meir says, "If [they were] in one sac, [the live child] is unclean. But if [they were] in two sacs, [the live child is] clean.
**Tahor/טָהוֹר (clean or pure) and Tameh/טָמֵא (unclean or impure) are halakhic terms that have to do with ritual purity in regards to the Temple. There was great caution to not bring impurity to the temple, as it could sever connection to the divine. They should be understood neither morally nor literally.
Key takeaways:
- The first two lines imply ability to be tahor/tameh can be contracted only after being born. The baby in the first sentence only had contact with the miscarried twin before being born. The fetus cannot become pure/impure in the womb because it is not legally considered a person yet.
- If anyone argues that rabbinic understandings on pregnancy should be disregarded because of a wholesale lack of medical knowledge, Rabbi Meir's argument demonstrates a fairly deep understanding of how twin births work. While Rabbinic discussions of pregnancy are rife with misunderstandings, this sentence does demonstrate a fairly sophisticated understanding of pregnancy.
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:
If the woman is having difficulties giving birth, they sever the valad (embryo) in her insides and bring it out limb by limb, because [the mother's] life comes before the life [of the embryo].
If much [of the child's body] came out, there is no injuring it; for there is no pushing away of one nefesh (soul/life) for the sake of another nefesh.
It's important to note the word choice here for embryo. Unlike עוּבָּר/ubar in our first text, which unequivocally means embryo, וָּלָד/valad can mean either embryo or child. It's translation is context-dependent, and while I do stand by choosing embryo we should consider why certain words get used at certain times. I'd argue it's because in this text, the personhood (or lack thereof) of the unborn child is more unclear here than in the first text. These are being on the verge of being born, and as such the severity of terminating the pregnancy is much higher.
However, this text clearly defines that life starts neither at conception nor during any part of in-womb development. According to halakha:
- A pregnant person's life comes before that of the embryo, no matter how far in the pregnancy.
- Life begins when "much" of the baby has exited the womb, not at conception. (In a commentary on a similar discussion in Sanhedrin 72b, Rashi further clarifies this point by stating that this rule applies once the baby's head has emerged & taken their first breath.)
- While by today's standards these texts might strike us as radical, and there are many great aspects to this, we need to remember one thing: these are rules about abortion written by cis men. If a pregnant person did or didn't qualify as needing an abortion, it was ultimately up to male rabbis. The fact that in the instances above an abortion isn't just an option, but required, is both radical and oppressive. These laws were likely impacted and informed by what pregnant people and midwives were already doing, but these are not texts of bodily autonomy.
- It's certainly possible for Jews to use laws regarding constitutional religious freedom in order to help save abortion rights! However, we need to remember that from its very start, the United States and its constitution is first and foremost a white supremacist, Christian, colonial project. Laws around religious freedom were never actually there to protect us. When we find opportunities to use religious freedom to protect abortion, we can and must! But we can't rely on this avenue alone.
(א) וְהָ֣אָדָ֔ם יָדַ֖ע אֶת־חַוָּ֣ה אִשְׁתּ֑וֹ וַתַּ֙הַר֙ וַתֵּ֣לֶד אֶת־קַ֔יִן וַתֹּ֕אמֶר קָנִ֥יתִי אִ֖ישׁ אֶת־יְהֹוָֽה׃
Often translated as "And Adam knew Eve his wife; and she conceived and bore Cain, and said, I have gotten a man from/with/with the help of the LORD."
(1) The human/Adam had sex with (lit. "knew") his wife, and she became pregnant and gave birth to Cain. She said, “I have gained/created a person for יהוה.”
There are two important factors when translating this quote.
- The word et/"אֶת" in Hebrew is called a direct object marker. It's there to clarify who is on the receiving end of an action, and the vast majority of the time isn't translated because there isn't a word for this in English. In both translations, note that none of the ets are translated except for the one at the end. This is what the argument is hung on. Admittedly, this is a strange et that does require some kind of translation for the English to make sense. What does it mean that Hashem is on the receiving end of Eve's gaining/creating of Cain?! We could spend a whole day diving into the theological implications, but nowhere in the Hebrew is there even an implication that it was God who was responsible for Cain. (The "with" translation is also a misread of the et as eit, meaning "with". Same letters, different vowels, different meaning.)
- More importantly, in this line, Hashem is not brought into the pregnancy until after Cain's is born. This has nothing to do with a fetus.
- Some anti-abortion Christians claim that "conceived and bore" proves that a fetus is a person, because they are fully themselves inside the womb. I find this argument flimsy at best, and would counter that the potential to become a person shouldn't be conflated with actually being that person. (See Rashi's argument above that a person receives their nefesh upon their first breath.)
A second Christian argument for life-at-conception uses texts about Hashem knowing people when they were still in the womb. Most often texts like Jeremiah 1:5 are used. That is a text about Hashem talking to a prophet who is intensely unsure of his fitness to be a prophet. Though the unsurity isn't vocalized until the next line, I'd argue that 1:5 is still about Hashem trying to prove to Jeremiah that he is fit for this special role, that he is unique in his being chosen in the womb!
Ultimately, all these implications are inherently rooted in the beliefs being brought to the translation process.
- Christians are cherry picking texts in order to justify their predetermined beliefs—and so are we! What I'm offering here is not a revealing the "real truth" of these texts, but rather I'm complicating the idea that have any inherent truth to begin with. Our tradition is a tool with which we make meaning, community, and find spiritual nourishment. I'd argue that even strictly Halakhic Jews are not living to the exact word of Torah, and that the very creation of Rabbinic Judaism was taking Toraitic laws and making them relevant, palatable, and practiceable. Two people with two unique theologies and moral compasses are going to read the same text differently, even if we could take translation out of the mix. Our tradition is here to bolster and support us, to guide us when we want guidance.
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