Misreading, not miscarriage. Mishpatim on... abortion? (Exodus 21:1 - 24:18)

‘Abortion’ or ‘miscarriage’ were once used to describe something done in the most horribly wrong way imaginable; applying, too literally, to a too-common interpretation of two verses in this reading.

(I am fully aware of the tragedy of posting something like this on the day when the monsters of Hamas returned the bodies of four murdered innocent Israelis – including the Bibas family. Last seen in a photograph of a terrified young mother holding her two small children, one just a baby. Taken alive into the hell of Gaza, and murdered God only knows how long ago now.

Or maybe, this is exactly the day to talk about choosing life, and the ultimate value of a baby.)

Mishpatim (‘judgements’, laws’, maybe here ‘legislations’) contains a series of ethical and social commandments, fleshing out God’s vision for the moral society the Israelites are to build.

Among a number of rules on responsibility for unintentional damages, appear two of the most tragically (or, criminally) misinterpreted verses in the whole of the Bible (any version): Exodus 21:22-23.

The Chabad website, a bastion of Orthodox Judaism and a go-to resource for Jews worldwide, translates: “If men are fighting and they [accidentally] collide with a pregnant woman, causing her to miscarry though not causing [her] a fatal injury, then [the guilty party] must be fined when the woman’s husband sues him, and he must pay at the court’s discretion. If, however, [she] suffers a fatal injury, you must exact […] a life for a life.” This matches several modern Christian versions (e.g. the American Bible Society’s Contemporary English Version: “Suppose a pregnant woman suffers a miscarriage as the result of an injury caused by someone who is fighting. If she isn't badly hurt, the one who injured her must pay whatever fine her husband demands and the judges approve. But if she is seriously injured, the payment will be life for life”). This how these verses are too often translated – or rather, interpreted. And, this is the basis many use to say the Bible does not see the unborn child as a human life. Following this interpretation, the only relevant damage is to the mother – at best, the baby is considered like one of her limbs. If the miscarriage itself, i.e. the preborn baby’s death, is not punished as manslaughter, that’s because no life was lost; the baby doesn’t count. And therefore, follows the (post)modern argument, abortion is OK – if it’s not a human life with its own value, then removing it is just an elective procedure. Voila, modern abortion on demand. Remember when we pretended it’d be ‘safe, legal, and rare’? (Well, not safe for the baby) Or that there would have to be a ‘good reason’ (whatever that might mean)?

But not so fast, the text cries out! Things are twisted so far out of shape here, the pain leaps from the pages.

First, the text doesn’t say ‘miscarriage’ (much less ‘abortion’). We know that, because different words are used for that elsewhere: in this very reading, for one, the word meshakelah (Exodus 23:26), strikingly meaning ‘bereaved [mother]’. A Jewish prayer for a blessed new year, inter alia one in which “no woman will miscarry”, uses what’s now modern Hebrew for ‘abort’: l’hapil (literally, ‘drop / cause to fall’). Instead, the words translated as ‘causing her to miscarry’ actually mean “and her children come out” – the intent is a live birth!! And the word ‘ason’, translated ‘fatal injury’, means ‘disaster’ or ‘ tragedy’. Finally, the bracketed words ([she] and [her]) in the Chabad translation are not found in the Hebrew. They are added to ‘clarify’ the text, guiding the reader to this ‘normative’ understanding. Chabad does this often (too much in my opinion), often judiciously… and sometimes very much not.

A more faithful rendering might then be closer to: “If men fight, and they [accidentally] hit a pregnant woman, causing her child to come out but no tragedy occurs, the one responsible must surely be punished when the woman’s husband sues him, and pay as he is fined [by the court]. And if there is a tragedy, a life for a life shall be given.” Christian versions such as NIV and KJV reflect this.

If the mother and child live, compensation will be given following due process. But if one of them dies, this is now a manslaughter case. The Hebrew never names the woman as the specific victim in the ‘ason’! Also, if the mother only was meant, these specific verses would be unnecessary, as manslaughter laws would already cover this case elsewhere! Clearly, then, this is meant to teach something more, shine a light on the additional, heretofore invisible person involved: the child! (Why ‘ason’ and not ‘death’ or ‘killing’? Maybe a special word had to be used for someone who had not yet taken his or her first breath.)

Seemingly then, the accidental death of the unborn child is a case of manslaughter! The text, misinterpreted into meaning that a preborn child’s death is no big deal, actually means the exact opposite: the unborn child is a human being, a human life possessed of the full value thereof, and worthy of protection as such! So much for ‘the fetus is just a growth in the woman’s uterus, [at least] until birth’ (who knows, maybe for some time thereafter).

This should drive home once and for all: when reading ancient texts, especially when not in the original, one must arm oneself with different translations – and question.

To those who say the Torah is silent on modern, intentional abortion: yes, this text deals with accidental premature pregnancy termination only. That’s because intentionally killing a baby in the mother’s womb was an obviously unthinkable act, not even worth mentioning. When God blesses, fertility is almost always included; when God curses, infertility usually is. The ancient world understood the value of children – perversely, that’s exactly why they were too often sacrificed to false gods. In that way, the modern cult of abortion is uniquely tragic: children are murdered, not as though sacrificing something of ultimate value, but as the banal destruction of something apparently worthless, for the sake of our own personal convenience and appetites. To me, that does not look like progress – or something that God could possibly have intended.

To my eternal sadness, the Chabad translation does represent the current normative position of most Jews, Orthodox streams included. Respectfully, regardless of who may have promoted this interpretation in our past, it’s just, plain and simple, wrong. We must, finally, correct this hideous error – the sooner the better. To borrow a phrase, “I fear for my people, for I know that God is just, and His justice cannot sleep forever”.

There are some good reasons abortion taking a back seat in American public discourse recently. But, Dobbs nonwithstanding, we shouldn’t think that any great lasting victory has been won just yet. Actually, things have arguably been trending for the worse. While overturning Roe v. Wade was a near-miraculous step, what it really did was open the door just a crack, for us to start doing the real work of ending the worst abomination of our times.

What say we finally get going? Starting with dispelling this misbegotten notion that the Bible is OK with killing babies in their mothers’ very wombs.

God help us all.