This week’s Parsha, Mishpatim (starting at Exodus 21) contains a brief but highly controversial passage that is often a starting point for debates concerning abortion.  I’ll cite the passage in its entirety (as always, Torah quotes are from Mechon Mamre):

 
כב  וְכִי-יִנָּצוּ אֲנָשִׁים, וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ, וְלֹא יִהְיֶה, אָסוֹן–עָנוֹשׁ יֵעָנֵשׁ, כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה, וְנָתַן, בִּפְלִלִים. 22 And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine.
כג  וְאִם-אָסוֹן, יִהְיֶה–וְנָתַתָּה נֶפֶשׁ, תַּחַת נָפֶשׁ. 23 But if any harm follow, then thou shalt give life for life,
כד  עַיִן תַּחַת עַיִן, שֵׁן תַּחַת שֵׁן, יָד תַּחַת יָד, רֶגֶל תַּחַת רָגֶל. 24 eye for eye, tooth for tooth, hand for hand, foot for foot,
כה  כְּוִיָּה תַּחַת כְּוִיָּה, פֶּצַע תַּחַת פָּצַע, חַבּוּרָה, תַּחַת חַבּוּרָה.  {ס} 25 burning for burning, wound for wound, stripe for stripe. {S}

The passage relates to abortion only indirectly, in that it places a value on a human fetus without reaching the question of whether abortion is permissible or not. More on this point later.

First, we need to understand the verses. Let’s start with the Orthodox approach. To make any sense of the scenario, we need to understand the meaning of the word Ason, which the JPS 1917 translation renders as ‘harm’, but which in modern Hebrew is more closely translated as ‘disaster’ or ‘calamity’. L’Halacha (Sanhedrin 79a), the word is taken to mean the death of the mother.

The second phrase with an equivocal meaning is V’yatzu yeladeha -‘her fruit depart’. Once again,  the gemara (this time Baba Kamma 49a) tells us that this means that woman miscarries and the fetus dies.

Putting the two together, we now have a clear picture of the halachic story: two men come to blows, with the intent to kill, and one accidentally strikes a pregnant woman. The verses in the Torah talk about two alternatives. In the first, ason, tragedy, is averted as the woman lives, and her fetus dies. In such a case, the man who struck her is obliged to pay a fine meant to provide restitution for the difference in value between a pregnant woman and one who is not pregnant. (The Talmud explains that such values may be found in the market for slaves – evidently pregnant slaves were more expensive, since their children would also be slaves. The process by which the husband makes the initial evaluation, subject to the ultimate approval of the courts is a bit odd, but let’s not get into it here.)

The other alternative discussed in the text is the case of ason, where the woman herself is killed, along with her fetus. In such a case, the man who struck here must pay a soul for a soul. The Talmud records a debate as to whether this means capital punishment or blood-money, and l’halacha we decide that capital punishment requires the specific intent to murder a person not just general intent to kill – a notable distinction between Jewish criminal law and criminal law in many, if not, all US states. The man would be charged a blood-price, but would not be subject to corporeal or capital punishment.

Regardless of this last issue, we can infer from the passage that killing a fetus is not the equivalent of killing a human, which is where we enter into the abortion deabte. The parsha provides that in case of accidental murder, the killer must flee to a special city of refuge that has been designated for exactly such purpose(ir miklat, see Numbers 33:11-28), and must remain there until the current Kohen Gadol passes away. If he fails to flee, blood-relatives of his victim may take their vengeance upon the killer. Clearly, the penalty for accidental killing of a human is much more severe than for accidental killing of a fetus, and thus, as the reasoning goes, whether abortion is or is not permitted, it certainly is not murder.

For years, I never really thought twice about the subject, until I encountered an Evangelical Christian, seminary-educated, with whom I corresponded for a few years. The topics of our correspondence were wide-ranging, and the intellectual and religious growth we both experienced is itself an argument for being more ecumenical (though both of us originate in exclusionary, monistic denominations).

When we discussed these verses and their connection to abortion, we discovered a great surprise! Christians have an entirely different interpretation of the verses. Christians interpret v’yatzu yeladeah as premature delviery, and ason as miscarriage. Thus, the Torah discusses two possible cases, one in which there is a premature live birth, and the other a miscarriage. In the case of premature live birth, a fine is assessed against the man who struck the woman, to compensate for the premature birth. In the case of miscarriage, the man is liable for his soul. I was unable to pin my friend down on whether this meant capital punishment or financial restitution, and whether one could extend the punishment regime, whatever it was, to the next verses, commonly referred to as the Lex Taliones, the law of retribution.

What did emerge was that the very same verses that Jews understand to mean that abortion is not equivalent to murder is used by Christians to understand the reverse! The interpretation of the entire passage rests on understanding the word ason, a word used only twice more in the Torah, in reference to one other subject, and understanding the phrase v’yatzu yeladeah, itself mysteriously plural.

Anyone out there have similar experiences with Biblical interpretations? (Yup, if that’s not evidence that this is a niche blog, I don’t know what is…) That’ll do for now, but stay tuned for a midrashic interpretation of these exact same verses next week.

Shabbat Shalom!

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