By Rabbi Bernard Barsky, Special To The Dayton Jewish Observer

No matter who sits in the White House, the abortion issue will continue to trouble American politics for the foreseeable future. Not only is there concern about the make-up of the Supreme Court under a new president; several states are now considering ballot initiatives that would outlaw abortion in terms that are intentionally illegal under Roe v. Wade so that the issue can be brought before the Court once again, in the hope of overturning the current law of the land.

Most Jews align themselves with the “Pro-Choice” side, and view the protection of Roe v. Wade as extremely important. But even if we were confident that Roe v. Wade were securely the law of the land, this would not be enough to help a pregnant Jewish woman know how she should address the decision that has been placed in her hands. What is the Jewish teaching on abortion?

The Torah actually points us in several directions. Those who argue that the unborn fetus is already a person could point to the story of the twins, Jacob and Esau, whose struggle with one another had begun while they were still in Rebecca’s womb. The oracle of God told her that “two nations are contending within you.” There is also the case of Jeremiah. When he pleads with God that he is a mere boy, too young to be a prophet, God tells him that “before I created you in the womb, I knew you; before you were born, I consecrated you.”

In the law given to Noah after the flood, God says, “whoever sheds the blood of man, by man shall his blood be shed.” The Hebrew for “by man” in this verse is b’adam, and the Hebrew particle “b” contains among its many nuances the meaning “in.” And so Rabbi Ishmael, in the Talmud, read this verse to include among its various meanings, “whoever sheds the blood of man in man, his blood shall be shed.” A “man in man” is the fetus, said Rabbi Ishmael, who concluded that abortion may be a capital offense.

Notwithstanding these examples, the only explicit legal text about the killing of a fetus occurs in Exodus 21:22-25:

“When men strive together and hurt a woman with child, so that there is a miscarriage, but if there be no harm (i.e., to the woman herself), the one who hurt her shall be fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. If there be harm (i.e., to the woman herself), 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…”

In this text, a clear distinction is made between killing the woman, where the punishment is “life for life,” and killing the fetus, where the punishment is a fine laid upon the offender by the woman’s husband. And so our starting point in Jewish law is this distinction between the life of the mother and the life of her fetus.

It is an interesting historical fact that this particular verse, so crucial to the whole discussion, was mistranslated in the ancient Greek version of the Torah used by the Jews of Alexandria and later made the basis for the Christian Church’s arguments. The Hebrew word for “harm,” ason, was inexplicably translated as “form” in the Greek text, giving us the verse, “but if there be no form, the one who hurt her shall be fined…but if there be form, then you shall give life for life.” In other words, a fetus which has taken on discernible human form is given the legal status of a person, and its destruction is punishable by death.

The Jewish distinction (rooted in the original Hebrew text) between the life of the mother and the life of the child is emphasized in a striking text of the Mishnah (Ohalot 7:6):

“If a woman has difficulty in childbirth, the embryo within her should be dismembered limb by limb, because her life takes precedence over its life. Once its head or its greater part has emerged, it may not be touched, for we do not set aside one life for another.”

This text seems especially remarkable because it refers to a procedure quite like what today is called “partial-birth abortion,” and which is viewed with especial horror by abortion opponents. Even if one could be sympathetic about a first-trimester abortion when the embryo is still barely formed, the killing of a full-term fetus shortly before its birth seems abominable. And yet this is precisely the gory example which the Mishnah uses to clarify its position. As long as the fetus is still enclosed within the mother, it is in some sense a “limb” of the mother, and if the hard choice must be made between the life of the mother and the life of the fetus, the life of the mother takes precedence. However highly the fetus is regarded and however fully it has formed, it does not pass the threshold where it can be regarded as a “person” with equal legal standing to the mother until its head or the greater part of its body has emerged from her womb.

This Mishnah text makes a strong argument for the legal acceptability of abortion when it is necessary for the life of the mother, but the circumstances that will actually justify an abortion are not so clear. What is a “difficulty” in childbirth, and how great must the threat to the mother’s life be? What if the mother faces some serious physical injury because of the pregnancy or the childbirth, but her life itself is not in danger?

Maimonides (12th century) seemed to strictly limit the cause for abortion to a case where the mother’s life itself was threatened, likening the fetus to a “pursuer,” one whom we are justified in killing because it is actively seeking to kill someone else. But most rabbis since Maimonides have not interpreted so narrowly. Most have agreed that serious physical injury to the mother is also grounds for abortion.

In fact, the prevailing position in halacha (Jewish law) today, though restrictive, is rather lenient. It is the position argued by former chief rabbi of Israel, Rabbi Ben Zion Uziel. He declared that abortion is permissible even for what he calls “a very thin reason,” meaning that one should give broad latitude to how a woman interprets “difficulty” or “injury,” or “life-threatening,” and even allowing an abortion in certain circumstances of great emotional anguish where there is no physical danger to the mother. But how thin is “thin”? What about the case where the child is known to be physically or mentally defective? What about the regrets after consensual adultery? Does a woman’s shame or embarrassment at the consequences of her own actions justify the termination of a pregnancy? What about the woman whose education or career will be made difficult if she has a child to look after? Is the Jewish position simply abortion on demand?

Certainly Judaism never allows abortion for birth control purposes when having a child would be simply an inconvenience or embarrassment. But in practice there remains considerable disagreement among halachic authorities and among the various streams of Judaism concerning specific cases. For example, most Orthodox authorities do not permit abortion on the grounds that a fetus is severely defective. Conservative and Reform authorities would permit aborting a physically or mentally defective fetus.

In every case, there are other non-juridical but absolutely fundamental Jewish principles that have to be invoked in this discussion. The first commandment of the Torah is to be fruitful and multiply, and everything in the Torah directs us to reverence for life. Above all, we do not believe that our bodies — woman’s or man’s — are entirely our own, nor do we have absolute rights to make whatever decisions we want.

Our tradition teaches that our bodies are created in God’s image and are gifts from God to be treated with honor. We have many prohibitions against desecrating the body: against tattooing, against cutting, against suicide. Our rabbinic law enjoins cleanliness, healthy living, proper medical care, and the avoidance of debilitating habits which injure the body.

Nevertheless, in the end, our tradition has come down strongly on the side of placing responsibility in the hands of the woman. That does not mean that any choice a woman makes is appropriate in the light of Jewish principles or acceptable in the judgment of God. Orthodox Judaism insists that the decision be made in consultation with a rabbinic authority. Conservative and Reform Judaism broaden that range of consultation to include physicians, therapists, family members and partners: anyone who can help the woman understand all the legal, moral and religious implications of her decision. But Jewish law has acknowledged that in the end no one but the woman herself can make the final decision about what is “harm” or “injury” to her.

I often like to call Judaism a religion for grown-ups, and this is another example of what that means. Our answer to a plague of promiscuous abortions is not the power of the state but the power of education, of family, and of community. We believe that if men and women are educated and raised in traditions of holiness, they will be competent to make righteous decisions for themselves. So may it be.

Rabbi Bernard Barsky lives in Dayton, Ohio.