Unit 3(C): Abortion Law and Ethics The Biblical Law of Miscarriage "Exodus 21:22-25"

BACKGROUND AND CONTEXT

As mentioned in unit 3(A), the passage below comes immediately after the one appearing as Text #3 in 3(A). It is the only place where the Torah deals in strictly legal terms with the issue of a woman losing her fetus, whether intentionally or unintentionally. Other biblical texts may have relevance to abortion law and ethics, but this is the one which addresses the topic directly.

As you will observe, the passage is not straightforward or transparent; it contains some ambiguities in meaning which allow for differences in interpretation. This is particularly true in the ancient Greek translation of the Torah, known as the Septuagint, which had a very different rendering of a key term in the passage from how most Rabbis understood the Hebrew. And the early Christian church used the Septuagint as its ("Old Testament") Bible.

In this unit we will look at quite a few translations of the text to get a sense of its possible range of meaning, and to remind ourselves that every translation is an interpretation as well. We will also study Rashi's commentary to see what the standard, classical Jewish reading was for the "law of miscarriage."

This passage is one of three in the Torah that contain the expression "an eye for an eye, a tooth for a tooth, etc." The Rabbis debated whether this means literally or represents a technical expression for monetary compensation. Jewish law decided on the latter interpretation, but what it meant historically in Tanakh is less certain.

Study Question on NJPS Translation

1. Make a list of all the good questions (kushiyot) on this passage that you can find. Consider what terms or situations are unclear. Do you know exactly what's happening to those mentioned in each verse, and what legal consequences are being described? If not, write appropriate questions concerning these things.

Exodus 21:22-25

King James Bible, 1611 (Reformation Christian)

²² If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. ²³ And if any mischief follow, then thou shalt give life for life, ²⁴ Eye for eye, tooth for tooth, hand for hand, foot for foot, ²⁵ Burning for burning, wound for wound, stripe for stripe.

Webster's Dictionary, 1828:

mischief, n.

1. Harm; hurt; injury; damage; evil, whether intended or not. "A new law is made to remedy the mischief."

Exodus 21:22-25

New Revised Standard Version, 1995 (Academic/Christian)

(22) When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. (23) If any harm follows, then you shall give life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, stripe for stripe.

Exodus 21:22-25

ArtScroll Stone Edition, 1998 (Orthodox Jewish)

(22) If men shall fight and they collide with a pregnant woman and she miscarries, but there will be no fatality, he shall surely be punished as the husband of the woman shall cause to be assessed against him, and he shall pay it by order of judges. (23) But if there shall be a fatality, then you shall award a life for a life; (24) an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot; (25) a burn for a burn, a wound for a wound, a bruise for a bruise.

Exodus 21:22-25

Richard Elliot Friedman, 2001 (Academic; Jewish translator)

(22) And if people will fight, and they strike a pregnant woman, and the children go out, and there will not be an injury, he shall be penalized according to what the woman’s husband will impose on him, and he will give it by the judges. (23) And if there will be an injury, then you shall give a life for a life, (24) an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, (25) a burn for a burn, a wound for a wound, a hurt for a hurt.

Exodus 21:22-25

Robert Altar, 2019 (Academic; Jewish translator)

(22) And should men brawl and collide with a pregnant woman and her fetus come out but there is no other mishap, he shall surely be punished according to what the woman's husband imposes upon him, he shall pay by the reckoning. (23) And if there is a mishap, you shall pay a life for a life, (24) an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, (25) a burn for a burn, a wound for a wound, a bruise for a bruise.

Study Questions on NJPS, King James, NRSV, Artscroll, Friedman, and Altar Translations

Be sure to read through all these translations. I know they are quite similar overall, but there are significant places where they diverge. Try to notice those places as you read.

1. In the NJPS version (Text #2) the word DAMAGE is used in verses 22 and 23 to translate the important Hebrew word ason, אסון. Find the corresponding English word that is used in the other translations and list it below:

NJPS: DAMAGE

King James:

NRSV:

Artscroll:

Friedman:

Altar:

2. Which of the translations use some form of the term "miscarriage"?

3. Which of them use some expression for "coming out" regarding the fetus?

4. Do you think these two different ways of translating could express different things happening to the woman, or are they saying the same thing? Explain your opinion carefully.

5. Thinking about all the translations, in your opinion who is the "damage" (or "harm," or those other words) happening to in verse 23?

6. According to your understanding, what does Exodus 21:22-25 say should happen to a man who causes a woman's fetus to die?

Exodus 21:22-25

The Greek Septuagint Translation, c. 250 BCE (Jewish Community of Alexandria, Egypt)

English Translation by Larry J. Perkins, 2009 (very slightly modified)

(22) And if two men fight and strike a pregnant woman and her child comes forth not fully formed, he shall be punished with a fine. According to what the husband of the woman might impose, he shall pay with judicial assessment. (23) But if it is fully formed, he shall pay life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, stripe for stripe.

(22) ἐὰν δὲ μάχωνται δύο ἄνδρες καὶ πατάξωσιν γυναῖκα ἐν γαστρὶ ἔχουσαν, καὶ ἐξέλθῃ τὸ παιδίον αὐτῆς μὴ ἐξεικονισμένον, ἐπιζήμιον ζημιωθήσεται· καθότι ἂν ἐπιβάλῃ ὁ ἀνὴρ τῆς γυναικός, δώσει μετὰ ἀξιώματος· (23) ἐὰν δὲ ἐξεικονισμένον ἦν, δώσει ψυχὴν ἀντὶ ψυχῆς, (24) ὀφθαλμὸν ἀντὶ ὀφθαλμοῦ, ὀδόντα ἀντὶ ὀδόντος, χεῖρα ἀντὶ χειρός, πόδα ἀντὶ ποδός, (25) κατάκαυμα ἀντὶ κατακαύματος, τραῦμα ἀντὶ τραύματος, μώλωπα ἀντὶ μώλωπος.

Study Questions on Septuagint

1. What is most noticeably different in this ancient translation from the others we've looked at here?

2. What terrible event that is a possible scenario in other translations is not discussed in the Septuagint at all?

3. What do you believe is the difference between a child "not fully formed" and one "fully formed," from the perspective of this passage?

Questions on Rashi (Rabbi Shlomo ben Yitzchak, 10th-11th cent., France)

1. Study these Rashi comments closely. Then look back at the list of questions you wrote on the NJPS translation (in #3, above). Which questions that you wrote did Rashi answer?

2. Which questions does Rashi answer here that you didn't identify?

3. Explain how Rashi's approach is fundamentally different from what we find in the Septuagint. (I'm talking about in relation to the abortion issue.)