Despite his personally liberal views on abortion, surging presidential candidate Rudy Giuliani seems committed, if elected, to appointing judges with a judicial philosophy in line with conservative tastes. If he wins the White House, Giuliani could have the opportunity to make a Supreme Court nomination or two, which might very well spell the end of Roe v. Wade.
So, it would seem appropriate for Jews and Christians alike to start thinking about a post-Roe scenario in which abortion is returned to the scrutiny of the state-level democratic process. That, in turn, requires a fresh look at abortion from a biblical perspective.
Is abortion ever considered murder, and punishable as such?
The Talmud directs our attention to a verse in Genesis, a verse that is also the source for explaining what is so wrong with murder in the first place. It appears in the context of God’s instructions to Noah after the Flood: “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God He made man” (Genesis 9:6). That’s the conventional but imprecise translation.
Rabbi Yishmael, in the Talmud’s tractate Sanhedrin 57b, notes that the Hebrew literally says, “Whoever sheds the blood of a person [who is] inside another person, his blood shall be shed.” The key in the Hebrew rendering is the word “ba’adam,” specifically the preposition “ba,” which almost always means “in” or “inside.”
The only “person inside another person” is the baby in its mother’s womb. To shed its blood is a capital crime for the descendants of Noah — namely, for the world. (The law for Jews in particular is different.) Maimonides codifies it accordingly.
However, does this mean that abortion at anytime after conception is murder? Notice the second phrase in the verse we’ve just looked at: “Whoever sheds the blood of a person [who is] inside another person, his blood shall be shed; for in the image of God He made man.” God imprinted His image on the face of man. There is a divine glow, an effulgence, an aura about a human being. To extinguish it represents a grave crime.
But when does it initially appear on the countenance of an embryo, a fetus?
Talmudic teaching regards the embryo through to its 40th day as possessing no claim on personhood (Niddah 30a). The Catholic Church held much the same from the 13th through the 19th centuries, basing its view on Aristotle, who thought that the male received a “rational soul” at 40 days of gestation while the female was endowed with a soul at 80 days. The Talmud also preserves a tradition, rejected in practice but still interesting, that makes exactly the same distinction: the male becomes a person at 40 days, the female at 80 days. These seemingly arbitrary numbers are alluded to in the Bible (Leviticus 12:1-5).
Certainly, from a medical perspective, the figure of 40 days is not arbitrary. For those 40 days, an embryo is sexually ambiguous. Immediately thereafter, it develops as a male with testes or as a female with ovaries. Personhood is dependent on sexual differentiation. Also by 40 days, all essential organs have started to form. The limbs begin to move spontaneously. We now are in the presence of a human being.
Though we are created in the image of God, His image is not imprinted on us the moment the prehistory of the body begins. That is also the message of some verses in Genesis, Chapters 1 and 2, that describe God’s creation of man. It was a two-part process.
In part one, God brought forth on the sixth day of creation “living creatures” — in Hebrew, “nefesh chayah” — comprising all sorts of animals including man, whose physiology is animal in nature (Genesis 1:24-25). This step in the creation process is described a chapter later (2:7) in slightly different terms: “And the Lord formed the man of dust from the ground, and He blew into his nostrils the soul of life; and man became a living creature.”
In part two, which unfolds in the Garden of Eden, God takes the raw living material of animal “man” and performs a special act of creation, imprinting the man with His image: “So God created man in His image, in the image of God He created him; male and female He created them” (1:27).
Thus, two separate creations, body and soul. This is the reading of the 16th-century rabbinic sage Ovadiah Sforno, but it is also apparent from a careful consideration of the text.
This two-part creation process is recapitulated in gestation. The prehistory of the body begins at conception. The history of the soul in the body, the image of God impressed upon the body, begins at 40 days.
Because the Bible defines murder as the crime that defaces the divine image in man, it follows that to kill the potential human life in the womb on day 39 is not murder. It is not a capital crime in biblical terms. After day 40, it is.
But an act doesn’t have to be murder to be wrong, for Scripture cares that we not treat lightly the miracle of procreation. Later in Genesis, Chapter 38, the Bible tells the story of two brothers, Er and Onan.
When Er died childless, custom indicated that Onan was obliged to marry Er’s widow, Tamar. Any children born in the marriage of Onan and Tamar would be attributed, mystically, not to Onan as father but to Er. But selfishly, Onan spilled his seed on the ground. God found this to be evil and killed him for it. Hence “onanism,” loosely applied to masturbation.
Ending a pregnancy from conception on may or may not be murder. But at any stage it is certainly and always the sin of Onan — still a moral offense. However, just as no one would propose to criminalize masturbation, the Bible would not restrict abortion except once the embryo has become a person.
We are left with abortion as a moral outrage whenever it is committed, but a punishable offense in a country like ours only after the 40th day. State legislators, are you listening?
David Klinghoffer, a senior fellow at the Discovery Institute, is author of “Why the Jews Rejected Jesus: The Turning Point in Western History” (Doubleday).