ABORTION AND THE TORAH: Irwin N. Graulich argues in the Jerusalem Post ("On abortion, a Jewish compromise,") that the Torah takes a particular position on abortion.

But if abortion is neither cosmetic nor murder, then what is it?

Exodus (21: 22-23) states, "If men shall fight, and they collide with a pregnant woman, and she miscarries, but the woman lives, the punishment on the men is financial, as determined by judges. But if the woman dies, there should be capital punishment."

These verses clearly illustrate that the fetus is not a full life. If it were, capital punishment would be called for, as mentioned in the second sentence. We are also shown that the fetus is not a worthless piece of tissue, since financial remuneration is required by the offenders. In addition, there are later references to the health of the mother taking precedence to the life of the fetus.

This biblical approach is the Jewish position, and it is equidistant between the pro-choice and pro-life stances. It states that abortion is not murder � and not nothing! The only way to enforce this compromise is to allow an immoral act, while at the same time to discourage it strongly, which is exactly what is done in Israel in the majority of cases.

This is perhaps a possible interpretation but I'm afraid the exegesis of the passage is not so straightforward. A key phrase is the one he translates "and she miscarries, but the woman lives." This is a paraphrase. A literal translation of the Hebrew would be "and her offspring comes out but there is no harm." (There are variants for the word "offspring" but the general idea is clear.) Now this could mean what Mr. Graulich says it means, but it could also mean something like "and she gives birth prematurely but there is no harm (to mother or child)." Then in v. 23, Mr. Graulich freely paraphrases, "But if the woman dies, there should be capital punishment." A literal translation would be "But if there is harm, then you shall require life for life," (and vv. 24-25 goes on to add, "eye for eye, tooth for tooth, ..." etc., i.e., the lex talionis). This puts the matter in a rather different light. It seems to me that the most natural reading of the passage is that if two men fight and cause a woman to give birth prematurely, but there is no harm to mother or child, there is a monetary fine. But if either mother or child are harmed, the lex talionis is invoked and the men are to be punished with the same injury they inflicted (on either mother or child), up to and including death. Mr. Graulich's interpretation is not impossible, but it seems difficult to reconcile with the fact that the "offspring" or "child" is mentioned along with the mother and that there is eye-for-eye punishment for any kind of "harm" inflicted, without explicitly distinguishing between mother and child.

I'm not saying that Mr. Graulich's position on abortion isn't perfectly defensible in itself, but it certainly isn't clear that that's what Exodus is saying.

UPDATE (16 March): Reader Tobias Robison e-mails:

I'm sure you're aware that orthodox rabbis rule differently on abortion, and even your "literal" translation of this obscurely worded sentence is only one of several possibilities. I think it is more telling that the torah, despite its massive number of specific commandments, never says anything explicit about abortion, nor about how to determine when life begins. Abortion is certainly not explicitly included in any specific list of major crimes.

Yes, I'm aware the passage can be and has been read in different ways. I was giving the interpretation that makes the most sense to me in context. I think it works better than Graulich's reading.

Reader Raphael Malyankar e-mails:

I am no Torah scholar, but your reading of Exodus 21 is non-traditional in at least two ways: first, the accepted meaning of 21:22-23 has long been injury to the woman; second, your interpretation of vv. 24-25 as lex talionis (punishing with the same injury they inflicted) is also non-traditional. Additionally, your alternative exegesis seems a bit awkward, because conflating v. 24-25 with v. 22-23 leads to the rather odd interpretation that lex talionis applies only in the specific circumstances of the woman who miscarries or goes into labor as a result of an inadvertent blow during the course of a fight between two men.

In a second message he adds:

For "meaning of 21:22-23" below, read "meaning of injury/harm in 21:22-23". Miscarriage (or, if we adopt the alternative exegesis, labor) is clearly a tort.

Let me take those points in order. Since Graulich was arguing from the authority of the biblical text, I was aiming for the best exegesis of the original sense of the passage in Exodus. For my purpose, traditional interpretations are only relevant in so far as they may give a better understanding of the original. If Graulich has been arguing from, say, Talmudic authority, that would be a different matter.

As for the relation of vv. 24-25 to vv. 22-23, the passage is clearly a unit; there's no conflating involved. This doesn't mean that the lex talionis applies only to this particular case, but rather that it is applicable to this case. The basic principle is assumed in the Pentateuch and is applied here to this case; to bloodshed/murder in Genesis 9:6 and Exodus 21:12; to injury in general in Leviticus 24:19-20, and to consequences of perjury in Deuteronomy 19:16-21. It is a limiting principle well known in ancient Near Eastern law but applied more fairly in the Pentateuch than, say, in the Code of Hammurapi ## 196-205, where it is restricted along class lines. For more, see the "Lex Talionis" article by H. B. Huffmon in the Anchor Bible Dictionary 4:321-22.