Getting the Bible Right on Abortion

As we said in our first post, our book, "The Bible Now," deals with the Bible's role in five current controversial issues. For these posts, we shall give one small example from each of the five. Our purpose is (1) to shed light on that particular case itself and (2) to teach method in treating biblical texts.

A reminder: We are Hebrew Bible (Old Testament) scholars, and we are writing only in the area of our expertise. We trust that some of our colleagues who are New Testament scholars will take up these questions in their area as well. Very few scholars on earth have professional expertise in both Testaments. Scholars of Rabbinic texts and of the Quran may contribute their learning as well.

Our first topic is abortion. Our treatment of some of the well-known passages -- for example, of the commandment against murder in the Ten Commandments, and of the one passage in the Hebrew Bible that clearly, unquestionably refers to abortion (there really is one) -- require more space than we can possibly reduce to a post. So, for this first post, we've chosen one classic text of manageable size.

The fighters who strike a pregnant woman

People sometimes derive law about abortion from a biblical law in which someone, in the course of a fight, strikes a pregnant woman, and she goes into labor. Here is the text, which we have translated from the Hebrew (also in the light of the Septuagint Greek text and the Qumran Dead Sea scrolls text) as literally as possible:

And if people will fight, and they strike a pregnant woman, and her children [or: her child] 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. And if there will be an injury, then you shall give a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a hurt for a hurt. (Exod 21:22-25)

Caution! The meaning of this law is unclear in several different ways, and learned scholars have questioned its meaning over two millennia. Two men (or is it more than two? And are they necessarily men?) are fighting, and they cause a miscarriage (or is it a premature labor? And is it one or is it both/all of them who cause it?) by somehow striking the woman, and this results in injury or death to the woman (or is it to the baby?) The law may mean: the woman loses the child, and the question is then whether there is any injury to the mother or not. Or it may mean: the child is born alive, and the question is then whether there is any injury to the child.

Viewing the Bible in the context of the ancient Near East is often valuable in understanding the biblical stance on such issues. In this case, the Law Code of Hammurabi, Middle Assyrian Law and Hittite Law all contain similar cases (though they are not necessarily connected to people in fights). The Code of Hammurabi states that if a man strikes the pregnant daughter of another man and causes her "to drop that of her womb," he is to pay 10 shekels of silver for the fetus. But if the woman dies, then the daughter of the man who struck her is to be put to death. The exception is if the woman is the daughter of a commoner or a slave, in which case the man is simply to pay a fine for the death of the woman (and nothing for the fetus alone).

Hittite Law provides for monetary compensation in the same situation. The amount of the compensation depends on the status of the pregnant woman's father.

Middle Assyrian Law also describes the punishment of a man who causes a miscarriage. However, the laws there demand compensation for both the fetus and the mother. If the father of a household causes another man's wife to miscarry, then the man whose wife has miscarried can cause the perpetrator's wife to miscarry in turn -- and he has to give the victim a child from his own household. However, if the woman dies, then the perpetrator is to be put to death, in addition to a child from his household being given to the victim's household. If the woman miscarries but does not die, and her husband has no sons, then the perpetrator is executed; unless the fetus is female, in which case he only needs to give her a child from his household in recompense.

The details in each of these cases vary, and the penalties in some of the ancient Near Eastern cases would strike most of us as repugnant. What is common to all of these similar cases, though, is that the question of injury is with regard to the mother, not to the miscarried infant. This probably suggests that the biblical law, too, is about the degree of harm to the mother after she loses the child, not about the degree of harm to the infant after being born alive. The law's severe consequences, in that case, are about the harm to a mother, not to a fetus. But all should acknowledge that this is, at most, probable but still not certain.

Moreover, this biblical passage is not about abortion. It is about accidental miscarriage. It is about the unintended consequences of a fight. Involving miscarriage rather than abortion, and being about unintended consequences rather than about a procedure whose consequences are planned, this law is an extremely difficult precedent on which to base any view: either for abortion or against it. The goal at best, therefore, is not to get a direct ruling on abortion from it. Rather, people on both sides of abortion debates seek to find some basic principle in the case that might then apply to the question of abortion. That is a good approach. But the passage is just too uncertain even for that. It simply cannot be the basis for a definitive answer to such an important issue. William Propp's superb two-volume commentary on the book of Exodus includes a detailed treatment of this law's many uncertainties, which go even beyond the ones we listed above. A reading of those pages will show why no one should rely on this enigmatic passage to form a view on abortion. (Propp, Exodus 19-40, New York: Doubleday, The Anchor Bible, 2006, pp. 221-230.)

And for heaven's sake, don't take the famous eye-for-an-eye, tooth-for-a-tooth, burn-for-a-burn passage literally. Nobody gets burned in this case, and, if the issue is injury to the child, newborns don't have teeth. From the earliest texts that interpreted this principle in antiquity, this passage was understood to establish that punishments had to be in proportion to the crime, not that courts mutilated anybody. But we'll have to leave that famously misunderstood line for another occasion. For now, the point is a caution against trying to derive too much from complex ancient texts.