While a firm line of medieval and early modern tradents and modern traditionalists rule that abortion is not permitted according to Jewish law, what we today call the right to abortion, even late term abortion, is, in fact, well grounded in Judaism. At bottom, the fundamental question has to do with what constitutes and what does not constitute human life. About this, as you will see in the sources posted below, there is surprisingly a lot of agreement in the Jewish legal tradition.

The shifting norms and position in the Jewish legal tradition about abortion itself is a complex legacy. Not complex and undisputed are these basic starting points.  Prior to forty days, the fetus before forty days is like water and has no legal status; the fetus is a   part of the mother’s body, like a limb; the status of a woman’s physical safety trumps fetal life in a life and death emergency; a fetus is not human, not an ensouled being (nefesh); abortion is not murder; the life of the fetus is not protected by legal penalty.

If anything, the halakhic tradition is anti-fetus. Because the fetus is not recognized as a person or living soul until birth, the halakha is not squeamish about late term abortion. It is even violent. To save the woman’s life, the midwife should tear the fetus limb from limb (Mishna). The fetus is not a living soul or nefesh (Rashi). In a pregnancy that threatens the mother’s life up until the moment of birth, the fetus is like a murderer to whom no mercy is due (Maimonides). Even for authorities who prohibit abortion, the person who commits an abortion is not culpable.

I.

A Sefaria page with most of the immediately pertinent biblical, rabbinic and other sources was gathered by Danya Ruttenberg. I am posting these below with her commentary. I am also including two sources below her material that introduce an opposition to abortion. I do so to better contextualize the analysis of the tradition writ large as per Daniel Schiff and David Bleich, whom I mention below. For their part, modern liberal Jews reading Ruttenberg’s source sheet would probably want to rest, i.e. come to a full stop with the position of R. Jacob Emden who permits abortion to safeguard a woman’s general well-being, even when her physical life is not actually endangered.

I am including her sources and her commentary here:

The Torah of Reproductive Justice (Annotated Source Sheet)

By Rabbi Danya Ruttenberg

This learning is part of the work of NCJW, the National Council of Jewish Women. Learn more and get involved at NCJW.org.

Abortion is one of the more charged topics in American political discourse.

Proposals to limit or block access to reproductive health care in most states reflect a specific Christian definition of the beginning of life, and limit the termination of pregnancy even in instances where Jewish law not only permits, but even requires it. Learning the sources that undergird Judaism’s approach to reproductive rights can help illuminate one of the major struggles of our day in new and, sometimes, surprising ways.

(One content note: These texts talk, not surprisingly, about pregnant women. In the context of our contemporary gender categories, it might be useful to remember that, while many (but not all) cisgender women can get pregnant, so too can some non-binary people, some trans men, and some other people whose identities are not reflected in the framework of binary gender.)

Let’s begin by looking at the question of the personhood of a fetus:

שמות כ״א:כ״ב-כ״ה

(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃(כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃(כד) עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃(כה) כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)

Exodus 21:22-25

(22) 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.(23) But if other damage ensues, the penalty shall be life for life,(24) eye for eye, tooth for tooth, hand for hand, foot for foot,(25) burn for burn, wound for wound, bruise for bruise.

In other words, if someone accidentally causes a miscarriage to take place, they are obligated to pay financial damages only; the case is not treated as manslaughter or murder, which would demand the death penalty. The “other damage” that would demand the death penalty (“life for life”) would be the death of the pregnant person herself (or some other serious punishment relating to the damage caused–”eye for eye, tooth for tooth…”) In other words, causing the termination of a pregnancy is not, in the Torah, considered murder. As the Talmud puts it:

סנהדרין פ״ז ב:י׳

דיני נפשות בפלוגתא דרבי ורבנן דתניא רבי אומר (שמות כא, כג) ונתת נפש תחת נפש ממון

Sanhedrin 87b:10

In cases of capital law, the dispute concerning such a prohibition is with regard to the issue that is the subject of the dispute between Rabbi Yehuda HaNasi and the Rabbis, as it is taught in a baraita that Rabbi Yehuda HaNasi says with regard to that which is written: “If men struggle and they hurt a pregnant woman…and if there shall be a tragedy you shall give a life for a life” (Exodus 21:22–23), the reference is to a monetary payment for the life that he took. The tragedy referenced is the unintentional killing of the mother.

Interestingly, a major factor in some Christian views on abortion were developed through a mistranslation of this passage. In the Greek translation of the Hebrew Bible (known as the Septuagint, completed in 132 BCE), they translated ason, damage or tragedy in these Exodus verses, to exeikonismenon, “from the image,” making the verse seem to be about whether or not the fetus is “perfectly formed,” rather than whether or not the pregnant person dies. That is, the question of whether one pays mere damages or incurs the death penalty would then depend on whether the fetus is “formed,” or sufficiently developed in terms of gestational stages, to warrant a harsher punishment. Notably, the Septuagint translated the word ason in a different, more accurate, way (as malakia, affliction) in the Book of Genesis. There are a few theories as to why this happened, but the ramifications of this poor translation choice continue to this day.

The next few sources look more closely at the status of the fetus:

יבמות ס׳׳ט ב

אי מיעברא עד ארבעים מיא בעלמא היא

Yevamot 69b

If she is found pregnant, until the fortieth day it is mere fluid.

That is to say, the fetus has basically no status whatsoever for the forty days of pregnancy. It is like water–a thing of no legal significance. Was this because of the prevalence of miscarriages? Was it a larger philosophical claim? Regardless, this text is a clear assertion that life does not begin at conception.

It may be worth noting that modern decisors of Jewish law count the 40 days as beginning from conception. Given that contemporary medical practice is to count pregnancy gestation from the last menstrual period–not conception–the end of those 40 days lands at about 7 or 8 weeks of pregnancy, by our current accounting.

גיטין כ׳׳ג ב

מאי טעמא דרבי בהא קסבר עובר ירך אמו הוא

Gittin 23b

What is the reason for Rabbi Yehuda HaNasi’s position [in the above conversation]? He holds that a fetus is considered as its mother’s thigh [that is, as part of its mother’s body].

In the middle of a Talmudic debate about whether a fetus is considered separate from the pregnant person, we see a clear statement by Rabbi Yehuda HaNasi who, as redactor of the Mishnah, holds great authority. His statement, in fact, closes the debate and lends credence to the discussion at hand (about the status of a fetus if its mother is liberated from bondage.) A fetus is not an independent being; it is part of the body of the person carrying it.

Now, a few sources on ending pregnancies:

משנה אהלות ז׳:ו׳

(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:

Mishnah Oholot 7:6

(6) If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person’s life for that of another.

In a situation in which the pregnant person’s life is in danger from the pregnancy or labor, Jewish law is abundantly clear: The adult’s life takes precedence. The only situation in which that comes into question is if the birth is already more than half completed–only then does the life of the birthing baby come into consideration. As Rabbi David Felman put it, “Implicit in [this] Mishnah is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth.”

This principle is cited elsewhere in the Talmud in a conversation about self-defense; the Gemara there asserts that abortion to save the pregnant person’s life should be considered self-defense, that the fetus in this case is a rodef, a “pursuer” attempting to kill the pregnant person. Rashi–Rabbi Shlomo Yitzhaki, the important 11th century French commentator addresses that discussion. The word nefesh in classical Jewish literature refers both to a “soul” and a “life.”

רש”י על סנהדרין ע״ב ב:י״ד

יצא ראשו – באשה המקשה לילד ומסוכנת וקתני רישא החיה פושטת ידה וחותכתו ומוציאתו לאברים דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו אבל יצא ראשו אין נוגעים בו להורגו דהוה ליה כילוד ואין דוחין נפש מפני נפש

Rashi on Sanhedrin 72b:14

its head came out: With a women that is experiencing difficulty giving birth and is in [mortal] danger. And it is taught in the first section [of this teaching], “the midwife extends her hand and cuts it up and extracts [the pieces];” as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.

Notably, Rashi defines a nefesh–a life–as taking place at birth, as the head emerges from the birth canal. A fetus does not have this status before then. Rashi may be referencing Genesis 2:7: “Then God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.” That is, regarding life as taking place with the first breath, and not before.

Here are a couple more recent texts that show some of the ways in which these texts above have been applied:

אמנם נדון השואל בא”א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה…וגם בעובר כשר הי’ צד להקל לצורך גדול. כל כמה דלא עקר. אפי’ אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ”ע.

Rabbi Jacob Emden, Responsa She’elat Ya”vetz 1:43 (1739-1759)

The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)…And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain…

Here, abortion is permitted in situations where carrying the fetus to term would cause “woe” and “great pain.” One might wonder if any situation in which one is forced to carry an unwanted pregnancy would not cause such things.

ברור ופשוט הדבר בהלכה דישראל אינו נהרג על העוברין, ומלבד דעה יחידית סוברים הפוסקים שאיסור מיהא ישנו, אבל דעת הרבה מהפוסקים שהאיסור אינו אלא מדרבנן, או הוא רק משום גדר בנינו של עולם, אבל מחמת איבוד נפשות אין נדנוד כלל, ומשום כך מתיר בשו”ת מהרי”ט ט:צ”ז–צ”ט לסדר בישראלית הפלת ולד בכל היכא שהדבר נחוץ משום רפואת אמו, אפילו באין סיבה של פקו”נ לאם… ובכזאת, ויותר מזאת, צידד להתיר בהדיא בשו”ת שאילת יעב”ץ א:מג, וכותב בלשון: “וגם בעובר כשר יש צד להקל לצורך גדול כל כמה דלא עקר אפילו אינו משום פקוח נפש אמו, אלא להציל לה מרעתו שגורם לה כאב גדול.” הרי בהדיא שדבר הצעת ההיתר בזה של היעב”ץ הוא אפילו כשליכא בכאן שאלת פקו”נ של האם, והמדובר רק כדי להצילה מכאב גדול שיש לה בגללו, ושבכלל יש להקל בזה לצורך גדול…. ויסורים וכאבים נפשיים המה במדה מרובה הרבה יותר גדולים ויותר מכאיבים מיסורים גופיים.

Rabbi Eliezer Waldenberg, Tzitz Eliezer 13:102 (1978)

It is clear and obvious as law that a Jew is not killed for a fetus. Aside from one view, the authorities rule that there is a prohibition, but many authorities believe that this prohibition is rabbinic, or it is under “building the world.” But there is no concern for destroying a life, and therefore Maharit 1:97-99 permits arrangement for a Jewish woman to abort a fetus where it is needed for the mother’s health, even without it being a matter of saving the mother’s life… And in such a case, and beyond this, Rabbi Yaakov Emden permitted, writing, “And even with a legitimate fetus, there is room to be lenient for great need, so long as it has not been uprooted [for birth], even without a need to save the mother’s life, but only to save her from her evil, which causes her great pain.” We see clearly that this permission of Rabbi Yaakov Emden is even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. …And suffering and emotional pain in great measure are greater and more painful than physical pain.

Here, Rabbi Waldenberg is talking about the great emotional pain a pregnant person might experience knowing that the fetus has been diagnosed with a disease like Tay-Sachs, but the larger legal framework stands: There is room in the tradition to permit abortion in order to relieve someone who is pregnant from “great emotional pain.” And, again, one might speculate that any person who is forced to carry to term an unwanted pregnancy could, indeed, experience exactly that.

Rabbi Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” Tradition 25:4 (1991)

Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.

Many Jewish values can and should factor in to our understanding of the importance of abortion access for all. Dignity, avoiding pain, valuing relationships, and other factors–including also, perhaps, our Jewish mandate to pursue the creation of a more just society–should be present as we consider both individual cases (and remember that not everyone has the same privileges, or the same choices) and larger systems.

Abortion is not only permitted in Jewish law, but it is required when the life of the pregnant person is in danger.

Our access to reproductive health care is guaranteed not only by the Fourteenth Amendment ━ the right to equality and privacy ━ but also by the First Amendment’s guarantee that no one religion or religious interpretation will be enshrined in law or regulation.

We must not remain idle while barriers to health care place any individual’s health, well-being, autonomy, or economic security at risk.

Reproductive justice is a Jewish issue.

Founded in 1893, National Council of Jewish Women (NCJW) is the oldest Jewish women’s grassroots organization in the country, guided by Jewish values to improve the lives of the most vulnerable women, children, and families. Our 200,000 advocates combine education, advocacy, and community service to engender transformation on local, state, and federal levels. Learn more at NCJW.org.

 

II.

Not included by Ruttenberg is this statement by Maimonides in his legal code, the Mishne Torah:

“This too is a negative commandment: not to have compassion on the life of the pursuer (rodef). Therefore, the sages ruled that when a woman has difficulty in labor it is permitted to dismember the fetus within her, either by drugs or by surgery, because the fetus is like a rodef pursuing her to kill her. But once the head has emerged, the fetus may not be harmed, for we do not set aside one life for another. This is the natural course of the world” (Maimonides, Hilkhot Rotzeiach 1:9). (Schief

Also not included by Ruttenberg are the following medieval texts. These are at the basis for the prohibition of abortion in Jewish law.  

According to the Babylonian Talmud, gentiles are prohibited from performing an abortion, whereas Jews are not. But what is prohibited to a gentile can not be permitted to a Jew. Itself very much in the spirit of Talmudic reasoning, it is arguably a very thin textual-philosophical support on which to prohibit abortion.

Here are those texts:

“It is stated in that book of Aggadot that the Sages said in the name of Rabbi Yishmael: A descendant of Noah is executed even for killing fetuses. The Gemara asks: What is the reason for the opinion of Rabbi Yishmael? The Gemara answers: It is derived from that which is written: “One who sheds the blood of a person, by a person [ba’adam] his blood shall be shed” (Genesis 9:6). The word ba’adam literally means: In a person, and is interpreted homiletically: What is a person that is in a person? You must say: This is a fetus that is in its mother’s womb. Accordingly, a descendant of Noah is liable for killing a fetus” (b.Sanhedrin 57b).

 “A gentile is culpable for the death of a fetus, while a Jew is forbidden to cause its death but is not culpable. Even though [a Jew] is not culpable, nevertheless it is not permitted. What of their statement that when a woman in labor is having difficulty, if its head emerges one does not touch it for one nefesh is not set aside for another, but prior to the head emerging one dismembers the embryo within her to save her life, even though this is forbidden to a gentile? There are those who say that here likewise a Jew is commanded to save her, and it is possible that a gentile is also permitted to save her.” Tosafot to Sanhedrin 59a (tranls Daniel Schief?? Abortion in Judaism, p.62 )

“Even though a gentile (ben Noach) is given capital punishment for aborting a fetus, as it is stated in Sanhedrin 58b – while a Jew is not killed – despite the fact that [a Jew] is not liable for capital punishment, nonetheless [aborting a fetus] is still not permissible for a Jew” (Tosafot to Hullin 33a)

[[On these two tosafot, Schiff comments: “Two important positions emerge from these Tosafot writings: First, the Tosafot hold that because a Jew is not bound by the Noahide laws, and since the fetus is a non-nefesh, the Jew is not subject to capital punishment for an act of feticide. Still, the Tosafot state that such an act is not permissible for a Jew. Second, the Tosafot tentatively relax the prohibition on the non-Jew in the case of a therapeutic abortion and permit the non-Jew to abort a fetus in circumstances where a Jew would be commanded to do so”]]

“And there are those who say that in any case because of pikuach nefesh we transgress the Shabbat for [the fetus’] sake, even though it is permitted to kill it, as in the case of a goses be-yedei adam where one who kills him is not liable . . .” (Tosafot Niddah 44b).

III.

Regardless of one’s point of view, thorough reviews of the pertinent sources are by Daniel Schiff in Abortion in Judaism and David Bleich in “Abortion in Halalkhic Literature,” which you can read here.

Shiff’s is the more complete review of the primary legal sources:  biblical, Talmudic, rabbinic, medieval, early modern and modern. His conclusion is a coda on the tension between ethics and halakha. By the end of the study, he will have included women’s voices. David Bleich includes the same material. Readers who read Shiff first will recognize all or almost all of the legal authorities and opinions they then find in Bleich. Whereas Shiff trues to strike a balance, Bleich’s view is that Halakha is in firm opposition to abortion. Oddly enough, Bleich starts his review of the halakhic material with a statement from the Zohar in which abortion is anathematized as demonic. Bleich ends on a note that sounds the rhetoric of fear and trembling, human limits before mystery, with no mention of women. Yet even Bleich assumes that abortion is not murder.

IV.

To all of this I want to conclude this post with this op-ed which you can read here by Michal Raucher, the author of Conceiving Agency: Reproductive Authority Among Haredi Women. For Raucher, the issue isn’t what Jewish law permits or prohibits. “[W]hen you hear that ‘Jewish law permits and sometimes requires abortion,’ you must also listen to the assumption underlying this statement: Women do not have the bodily autonomy to make that decision on their own. Jewish law must permit it — and sometimes demands it, regardless of what a woman prefers. These statements, often used to express support for abortion rights, are ultimately stymied by the assumptions of rabbinic law, a system that does not support bodily autonomy or the ability to make decisions about one’s own body…. [A] religious argument based on Jewish law and rabbinic texts only goes so far. Those of us who support reproductive health, rights and justice ought to be honest about the connection between that and our rabbinic tradition.” The normative conclusion is that an argument based on bodily autonomy and reproductive health and justice “may not be an argument rooted in Jewish law, but it is a Jewish argument — and it’s time to make it.”