Why Judaism differs on ‘what is a fetus?’

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Rabbi Josh Jacobs-Velde

This week’s Torah portion is Mishpatim, Exodus 21:1 – 24:18.

“When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life…” (Exodus 21:22-23).

This text from parshat Mishpatim is one of the most fundamental texts for Jewish views on abortion. As I write about this text, I am painfully aware that this is the first time we are reading this parshah since the overturning of Roe v. Wade. I am also acutely aware that I write these words from my position as a cisgender, white, middle-class male, and as the rabbi of a local Reconstructionist congregation (Oseh Shalom) which will mark this Shabbat as Repro Shabbat, part of a nationwide effort to lift up abortion access as a Jewish value.

But let’s look at some of the elements and resonances of our parshah text. Perhaps the most important thing to understand here is that the fetus is not designated as a life. If it were, then the one who pushed the pregnant woman would be liable for capital punishment, according to the Torah. Instead, they are liable for monetary damages.

Commenting on this verse in the Mishneh Torah, Maimonides makes this clear: “One who strikes a woman and causes her to miscarry, even though this wasn’t his intent, he must pay the value of the fetus to the [woman’s] husband, and damage and pain to the woman.”

Unlike much of the Christian understanding and assumptions that drive restricting abortion access in our country, the fetus does not have the status of personhood. Once you start with the assumption of this status, all sorts of different conclusions cascade from that assumption. That assumption is not one that Judaism shares.

Indeed, the Talmud declares that until 40 days after conception, the fetus is “merely water.” (Yevamot 69b) Then further along in the pregnancy, the Talmud states, “A fetus is considered as its mother’s thigh,” i.e., a part of its mother’s body (Gittin 23b). Elsewhere the Talmud (Arakhin 7a) states, emphatically, that the fetus is the considered the woman’s body.

This understanding of the fetus as part of a mother’s body has obvious and powerful resonances with the discourse around abortion in our times. It is a clear support, from within Jewish tradition, for understanding the abortion issue as about the bodily autonomy of the person who needs the abortion. It’s almost as though this 1,500-year-old line from Arakhin 7a, “After all, it is her body!” could become a protest sign.

All of this said, it is important to note that Jewish tradition has opposed abortion on the basis of convenience, arguing that becoming pregnant while someone is single or establishing their career is not grounds for abortion.

I think it is very important for us as American Jews to recognize the degree to which our country’s understanding around abortion, particularly around efforts to limit abortion access, represents an attempt to impose Christian ideology upon everyone in our country, regardless of what religion they are.

Those who argue that abortion access is a religious freedom issue for Jews have a strong traditional Jewish textual basis to stand on. ■

Rabbi Josh Jacobs-Velde co-leads Oseh Shalom in Laurel.

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