Judaism Takes Middle Ground on Abortion

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With the retirement of Justice Anthony Kennedy, there is now a real possibility of Roe v. Wade being overturned. Indeed, CNN legal analyst Jeffrey Toobin has predicted that abortion would be illegal in 20 states within 18 months.

However, the current abortion debate does not have to be an either/or proposition.

Contrary to media coverage, the only choice is not between fetuses having no rights at all — being “just material and energy shaped by pure chance” (Cal Thomas) — and it being sacred and inviolable.

There is, indeed, a middle ground in the abortion debate between the rhetorical extremes of the pro-choice and pro-life camps. It is called classic Judaism, derived from the Tanach itself.

The only cogent scriptural text on this issue is the legal one in Exodus 21, which recounts an incident in which a pregnant woman, caught in the middle of a fight between two men, is struck and miscarries. The culprit pays a monetary fine for his action. If the fetus were considered a full human being, he would have been charged with murder. (And since it would be viewed as involuntary, the culprit would be required to flee to a city of refuge.) If the fetus were worthless, he would get off only with punishment for striking the woman. Since the fetus is considered property, the punishment is a fine.

In short, the Hebrew Bible takes a middle view on this matter, which is the position upheld by rabbinic tradition (Arachin 7). The fetus is something but not a full human being, it has property value and potential as life, but, in and of itself, is not life. And thus, abortion is not murder — it is, at best, a tort issue.

(Indeed, in Jewish law, when the mother’s life is medically at stake, abortion is not merely allowed, but actually required.)

I would argue that the majority of Americans, pragmatic as ever, prefer something more along the lines of such a nuanced middle view, and not the either/or dichotomy in which the debate is usually framed by extremists on both sides. Keep in mind: Only 18 percent of Americans support a total ban on abortion according to Gallup.

Moreover, any total outlawing of abortion would constitute a flagrant violation of American Jewry’s First Amendment right to religious freedom.

Borrowing an architectural metaphor, think of a fetus as a blueprint. A blueprint is by no means the same as a finished brick-and-mortar edifice, but neither is it a worthless piece of paper.

Be aware: Neither Jesus nor Paul addressed this issue, so, for Bible-centered Christians, the only direct, explicit Biblical optic on this subject is that explicated above. Other positions may well be deeply felt, magisterial or otherwise “religious,” but they are read into and imposed upon the Bible, not objectively derived from it. Furthermore, for the Hebrew Bible, and especially the Torah given to Moses at Mount Sinai, law is the authoritative form of divine expression, not poetry. Hence, it is the 10 Commandments, not the 10 Stanzas. Jewish law is derived exclusively from the Pentateuch.

For those who blanch at the citation of Torah as a covert attempt at theocracy — as it were, a “Judaic sharia-zation of America” — the outlook of Exodus 21:23 is also contained in the (secular) Code of Hammurabi.

Last but not least, it should also be noted that the Roman Catholic and Evangelical Christian frame of reference that life begins at conception is Platonic (pagan) in origin, not Semitic/Hebraic. It derives from a Graeco-Roman perspective, especially as set forth in Plato’s “Phaedo.”

S.R. Cohen lives in Baltimore.

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