Kingdom of Priests

Kingdom of Priests

Abortion as Capital Offense? Judaism’s View

In the spirit of looking facts in the face, let us admit what Jewish law actually prescribes: Abortion in the context of a non-Jewish nation like America is a death-penalty offense. My point is not that America should now write Biblical, Talmudic, or Maimonidean legislation into modern legal codes. The suggestion would be madness. But surely it’s appropriate for Jews to confront without flinching what our classical sources say, digest their values, and do our best to reflect back the wisdom we find to this sad world that we are intended to influence as a “kingdom of priests” (Exodus 19:6). 

I’m prompted to bring this all up by Beliefnet’s other Jewish blogger, Rabbi Brad Hirschfield. Yesterday, with much respect and affection, I offered a correction to Rod Dreher. Now similarly, here’s one for Brad, who writes on the shooting of late-term abortionist Dr. George Tiller. Brad is incorrect when he says:

Under no circumstances is a fetus considered a human life, according to Jewish law. Ironically, Maimonides, calling a fetus a rodef [pursuer], uses this law to explain why a baby must be aborted if the pregnancy endangers the mother’s life. While Jewish law is no fan of abortion, and does not sanction abortion on demand under all circumstances, it is never murder.


Let’s make an elementary distinction. Jewish law rules differently for non-Jewish societies (like our own) than for a Jewish society. Torah is even stronger in its defense of the unborn in a Gentile nation than in a Jewish one. Interesting, don’t you think? The Talmud contains the teaching, and Maimonides codifies it as accepted law, that in a Gentile context, aborting a fetus in fact constitutes murder, punishable by court-imposed death sentence.

You will find the relevant passages at Sanhedrin 57b and in Maimonides’ Mishneh Torah, Hilchot Melachim 9:4. Maimonides there explicitly equates the killing of a “fetus in his mother’s womb” with that of any other person. Both are murder. I’m eliding a fair amount of complex rabbinic discussion, but this is the simple bottom line. For an authoritative take on the complexities of the issue, see Rabbi Aharon Lichtenstein’s “Abortion: A Halakhic Perspective.” 
Abortion is no more permitted to Jews than to non-Jews — the exception to the rule being for the sake of preserving the mother’s life — but with Jews it is not treated as punishable by execution. So don’t think that Jews are held to a lower standard (Chullin 33a). Why on abortion, we should be punished less stringently, however, is a question to which I don’t have an answer.
Please take note that this is not an issue of Orthodox versus Reform or Conservative viewpoints. It is what Judaism historically has said, long before Reform or Conservative were a gleam in a Jewish liberal’s eye. The Talmud finds its source for the law in the Hebrew Bible, Genesis 9:6. So this is Biblical law. Enough wishful thinking. Let’s be truthful with ourselves first, then we can be truthful with others. Otherwise, what are Jews good for?
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posted June 2, 2009 at 6:30 pm

I fail to see why the Jewish scriptures make statements about non-jewish societes. Isn’t Judaism meant to be exclusive to those that are jewish (by birth or conversion)?

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David Klinghoffer

posted June 2, 2009 at 6:34 pm

Thanks for asking, POvidi. Jewish tradition transmits two separate legal codes–the Mosaic that applies to Jews and the Noachide than applies to Gentiles.

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Your Name

posted June 3, 2009 at 10:55 am

In the Jewish Bible, God said to Jeremiah “I knew you ‘before’ I formed you in your mothers womb”

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David Klinghoffer

posted June 3, 2009 at 4:43 pm

Nonsense. You should check the sources before before writing, Yochanan. One of the Noachide commandments forbids murder and Maimonides includes the prohibition of abortion there, same paragraph, same sentence. Genesis 9:6 is the Biblical proof-text given by the Talmud, not by me. What part of the Talmud do you consider “Christophilic”? And no, as you like to write, my unpublishing a comment does not equal verifying its contents. Obviously not. I unpublish obscene comments and those that consist of nothing but personal abuse. Merely foolish ones like yours I leave up.

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posted June 4, 2009 at 9:49 pm

yochanan: Part of Christianity’s problem arose when the Septuagint…misunderstood the Exodus material, and, in translating it, mangled it.
As you know, the Septuagint was translated by Jews for Jews and was the main (sometimes only) version of the Tanakh used by Greek-speaking Jews until the second century CE. Any errors or deficiencies in it cannot therefore, as you imply here, be laid at the feet of Christians.
Second, the general scholarly opinion is no longer that the Septuagint was a “bungled” translation. Yes, there are clear errors in places, but for the most part it seems as if the Septuagint was translated from an earlier Hebrew text pre-dating the Masoretic text, which is now considered “standard”. The vocalization of Biblical Hebrew wasn’t completely standardized until nearly the middle ages, and there is evidence that the Masoretic vocalizations weren’t in all cases the most ancient. Some of these earlier vocalizations seem to be reflected in places in the Septuagint.
In any case, the Dead Sea Scrolls contain the most ancient surviving copies of the Tanakh, and in many places the Hebrew text in the Scrolls agrees more closely with the Septuagint than with the Masoretic text.
Just FYI.

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