Abortion and the lex talionis

Exod 21:22-25 is the only Biblical passage that deals fairly directly with the ethics of abortion. Of course, many passages indirectly address that issue. Here’s what some commentators have to say:

If two men in a scuffle inadvertently strike a pregnant woman, causing by the trauma of the blow the premature birth of her children, if there is no harm, presumably either to the mother or the newborn child or children, the man who actually inflicted the blow is to pay compensation…If, however, there is a permanent injury, either to the woman or, presumably, to the child or the children she was carrying, equal injury is to be inflicted upon the one who caused it. J. Durham, Word Biblical Commentary 3: Exodus (Word 1987), 325.

[v22] The scene described here is a brawl that results in the unintentional hitting of a pregnant bystander. The blow results in a premature birth. If, however, there is no “harm,” then a fine is set upon the offender. It should be noted that there is no dative added to the term “harm,” such as “to the woman” or “to the child.” The reason is because both mother and child are covered by this law.

[vv23-25] If, however, harm comes to the mother or child then the concept of lex talionis comes into effect. It literally means “law of retaliation,” and it prescribes that the punishment for the crime must fit the crime, measure for measure. J. Currid, Exodus: Chapters 19-40 (EP 2001), 79.

Even if that [“serious damage”] is the best English equivalent, do we understand the verses to refer to life-threatening or life-ending damage (1) to the fetus or (2) to the pregnant woman? If it is view 2, then v22 refers to some nonserious, nonfatal injury to the pregnant woman, while v23 refers to some serious, fatal blow to her that either severely harms her or ends her life. If it is view 1, then v22 refers to premature parturition, while v23 refers to miscarriage. Is the text deliberately vague so as to be multi-interpretational at this point? Can it be “both…and” rather than “either…or”? V. Hamilton, Exodus (Baker 2011), 387.

Probably there is deliberate ambiguity in the text about the nature of the delivery and of any death that might follow in order to allow juries latitude in dealing with the varieties of cases that might arise. D. Garrett, A Commentary on Exodus (Kregel 2014), 501.

How does this apply to the debate over abortion?

i) I’ve quoted from three major commentaries on Exodus. All three commentators offer the same basic interpretation.

What’s more, despite their agreement, the commenters range along the theological spectrum. Currid and Garrett are conservative, Hamilton is moderately conservative, while Durham is liberal.

So I think it’s reasonable to conclude that this is a very reasonable interpretation of the text. It’s not a theologically partisan interpretation. And it’s backed up by solid scholarship.

ii) Indeed, it would make sense to include both mother and child under the same law. The value of mothers and children is correlative. If you didn’t value children, you wouldn’t value motherhood, or vice versa.

Incidentally, Stuart, in his commentary on Exodus (pp491-92), thinks the nonfatal injury to the mother involves an injury which renders her infertile. And that makes contextual sense.

iii) On this interpretation, the text doesn’t have to single out the baby (to the exclusion of the mother) as the injured party. As long as the baby is covered by the law, this is still a prolife text.

iv) This is a case of manslaughter. Ordinarily, the Mosaic law doesn’t treat manslaughter as capital murder (unless there was negligence). The fact that it does so in this case reveals the high value which the law places on the life of the mother and child alike. 

Of course, the brawl itself constitutes an aggravating factor, so the injury isn’t purely accidental or innocent.

Another commentator makes an additional observation:

The Hittite laws, alone, take into account the age of the fetus in estimating the fine imposed on the assailant. N. Sarna, The JPS Torah Commentary: Exodus (JPS 1991), 125.

So there was precedent in ANE law to prorate the value of the unborn baby according to its prenatal stage of development. The fact that the Mosaic law doesn’t draw that distinction is significant. Killing a 1^st trimester baby merits the same punishment (execution) as killing a 3^rd trimester baby.