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Exodus 21:22-23 (NIV): If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. 23 But if there is serious injury, you are to take life for life,

In its original context did this law have any applicability to abortion?

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The only connection is Exodus 21:22-23 puts a value on the unborn child. Those who support abortion as a choice point out that the punishment for the death of the unborn child was less than the death of the mother, while people supporting life point out that causing the death of the unborn child was punished.

However, the big question is what does "but there is no serious injury," וְאִם־אָס֖וֹן יִהְיֶ֑ה, mean? Pro-abortion usually take it to mean injury to the woman, while anti-abortionist say it also includes the unborn child.

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No. Abortion is not mentioned nor contemplated here. What is in view is simply premature birth but still presumably, live birth. Not even still-birth is mentioned.

The key here is "no serious injury" (V22).

Subsequent verses record rules and limits to retaliation.

1

The answer is clearly "no", because the case in question is not abortion, a willful act, but unplanned and unintended damages to a third party as a result of a specific action involving two combatants unrelated to the third party, whose outcome is either death of a fetus or death of a woman carrying a fetus.

There is a basis to believe that the law would be different if the woman in question were related to one of the combatants, but this does not change the premise. The fact that "hit" (נגפו) is third person plural indicates that the action is collective, and an unintentional consequence of the strife.

In the present case, the liability for loss of the fetus is clearly monetary (to a fourth person!), whereas the liability of loss of the woman carrying the fetus is apparently capital.1 It is impossible to infer from this case what the liability would be for an unspecified person intentionally killing a fetus. That's just a different situation. In fact, it isn't even clear in this case what the liability would be if the woman in question was not carrying a fetus and she was killed unintentionally as a result of the strife. Would this be like the case of manslaughter in Numbers 35?

There is no specific law regarding abortion in the OT. That is not to say that the framer of the law did not have an opinion, only that the opinion was not recorded. The reason for this lacuna, and what the framer's opinion was is open to speculation.

Unfortunately for most of us, the Bible does not say what we want it to say, it only says what it says.


  1. The next verses, 23-25 indicate lex talionis, which would seem to make the liability capital. However, verse 12 uses a very different language for capital liability, which raises a question about the intent of verses 23-25.
1

Overview
Taken literally, with the exception of a virgin birth, the Bible states a woman becomes pregnant solely because God opens the womb after sexual intercourse with a man.1This is stated repeatedly in Genesis and Jacob's two wives are examples:

When the Lord saw that Leah was hated, he opened her womb, but Rachel was barren. (Genesis 29:21) [ESV]

Then God remembered Rachel, and God listened to her and opened her womb.
(Genesis 30:22)

While the physical act of sexual intercourse is necessary for a woman to become pregnant; whether she does is in the hands of God. Moreover, when man and woman were created, they were commanded to multiply and fill the earth (Genesis 1:28) which was created to be inhabited (Isaiah 45:18). Arguably then, abortion is a human action to stop what God chose to allow.

Exodus 21

22 “When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman's husband shall impose on him, and he shall pay as the judges determine. 23 But if there is harm, then you shall pay life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe. (Exodus 21)

First, the primary significance of this passage is to articulate the principle of lex talionis which Dennis Prager states is one of the greatest moral advances in history:

This principle of equal punishment is a fundamental statement of the Torah's preoccupation with justice. It represents, on several levels, a revolutionary moral advance over other ancient cultures' morality. First, lex talionis is the ultimate statement of human equality. No one's eye is worth more than the eye of anyone else...Second, the principle of "an eye for an eye" ensured only the guilty part was punished for his crime...Third, the lex talionis is based on justice and therefore prohibit unjust revenge...Fourth, the Torah is preoccupied with justice. And it recognizes it is profoundly unjust for a person who has deliberately and unjustly gouged out the eye of another to keep his own eye. Perfect justice, therefore, would dictate that what I deliberately did to an innocent person be done to me. Of course, except for taking a murderer's life, this is not possible.2

Second, Prager argues the phrase ויצאו ילדיה, ve-yatzu ye-la-deh-ha, in verse 22 literally mean "and her children leave her." It is not at all clear why the verse speaks of "children" in the plural.3This is his literal translation and interpretation of the text:

If the men are fighting one another, and they hit a pregnant woman, and her children leave her, and if there is no harm (ason), he shall surely be punished according to what the woman's husband lays on him; he will give according to judgement. But if there is no harm (ason), you shall give life for life, eye for eye...A literal reading of the text can only mean harm has come to either the pregnant woman or to the "children who leave her."4

It is significant that this is not speaking about a miscarriage. [In fact, there are two words for miscarriage, שָׁכֹל and נֶפֶל neither of which are used in this passage.]

Prager offers this understanding of the passage:

If the mother gives birth and there is no harm to either her or the the children, the husband goes to the court, which fines the man who induced the premature birth. But if there is harm (ason)-whether injury or death-to either the children or the mother, then punishment is life for a life, eye for an eye, etc."5

Conclusion
The general application of the passage is that if the injured woman gives birth and there is anything wrong, then the man who struck the woman is considered to be responsible. For example, if the child is born blind, the man should lose his sight. In addition, the man should be fined as the woman who must raise a blind child is entitled to financial compensation. If the child is born dead or if the woman dies, then the man who struck her should lose his life.

The significance of using these circumstances to articulate the principle of lex talionis is in how it demonstrates the full range of possibilities of life for life, eye for eye, etc. In addition, it should not be overlooked how the passage also prohibits the husband from taking revenge on the man who struck his pregnant wife.

With respect to the issue of abortion, if the passage specifically states her children leave her, then it is clear the Torah understands that which is inside a woman is a child. As such, it's life which should not be taken.


1. Speaking from the limited historical perspective and ignoring the contemporary issues like artificial insemination and cloning.
2. Dennis Prager, Exodus: God, Slavery, and Freedom, Regnery Faith, 2018, p. 302-303
3. Ibid., p 295
4. Ibid
5. Ibid., p. 297

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