Does Judaism Permit Abortion When Rape or Incest is Involved?

Dear Jew in the City-

A lot of people have commented on the fact that Alabama’s new abortion law doesn’t have exceptions for rape or incest. Does Halacha permit abortion when the woman gets pregnant as a result of rape or incest?

Thank you,
Sasha

Dear Sasha-

Thanks for your question. I was going to just answer this one privately (pretty much what’s in the penultimate paragraph) but then I was asked to prepare it for the site. This is a topic that I generally try to avoid addressing because it’s so complex, so I initially told the Powers That Be that my response would be very brief. However, the more I got into it, the deeper the rabbi hole got. So, while much fuller than my original intention, please keep in mind that this represents only the most general overview of the subject. There is plenty of halachic discourse on this topic – both traditional and contemporary – that is not addressed here. Even if this were an exhaustive review of the halachic literature on the subject (assuming that such a thing is even possible!), we would have to note that it wouldn’t qualify one to make a decision in a case of practical application.

If a person has a health scare, they should see a competent doctor and not treat themselves with information they gather off the Internet. If one is arrested on suspicion of murder, it would be advisable to hire a lawyer because the person who defends himself “has a fool for a client.” Similarly, in cases of halachic quandaries, one must consult a rabbi at the appropriate level to evaluate such things. (It’s unlikely that many synagogue rabbis are at the level to address this particular issue but our rabbis have their own rabbis who are.) So, in short, nothing that follows should be taken as a proof for one’s own political or halachic opinions, whatever they may be. I am only attempting to illustrate that the issue is more nuanced than most people credit.

What most people know about abortion in halacha comes from the Mishna in tractate Ohalos. There (mishna 7:6), we are told that if a woman is experiencing a difficult labor, the fetus may be aborted because her life-in-progress takes precedence over the fetus’ life-to-be. However, once most of the baby has emerged, this may no longer be done because the lives of the mother and child are now of equal value. The Talmud (Sanhedrin 72b) explains that the fetus is considered a rodeif (a “pursuer,” threatening to kill an innocent party), whom one is required to kill if necessary to save the intended victim (derived from Deuteronomy 25:12). Once the baby emerges, the fact that the mother may now be endangered is seen as a matter between her and God; it is not the baby’s fault simply for existing.

This may all seem straightforward but is it really? What does it tell us about the status of a fetus before birth? Is it deemed to already be a person (as is implied by the fact that we apparently may not abort unless it poses a threat to the mother’s life)? Or is it not yet a person (based on the difference between the actions we may take before and after the baby emerges)?

You will also note that mid-labor is the latest of late-term abortions, so what does this tell us about abortion in the earlier stages of pregnancy? The Talmud in Yevamos 69b says that before 40 days, a fetus is “just water.” Under what circumstance may that fetus be aborted? What about a fetus in between 40 days and the onset of labor?

Finally, the mishna only addresses one particular scenario: a woman in difficult labor, whose life in endangered. While this mishna contains much useful information, it doesn’t claim to be the only scenario in which abortion might or might not be permitted, so it’s of limited use in the hands of a lay person trying to draw any conclusions one way or the other.

So does the Torah itself say anything about abortion? Definitely kind of. In two places. Sort of.

For the first, let us turn to Genesis 9:6. The Hebrew there reads, “Shofeich dam ha’adam ba’adam damo yishafeich.” This is generally translated as, “Whoever sheds a man’s blood, by man shall his blood be shed,” i.e., the penalty for murder is execution. However, the Talmud in Sanhedrin (57b) understands the translation of this verse as, “Whoever sheds the blood of a person inside a person, his blood shall be shed.” “A person inside a person” refers a fetus. This reading tells us that we call abortion is also the capital offense known as murder. (This is one of the “Noahide” laws that apply to everyone, not just Jews.) However…

Let us now turn to Exodus 21:22-23. There, we are told about two men who are fighting and who injure a pregnant bystander. If the woman dies, it is manslaughter – a capital offense. If they cause her to miscarry, however, the one who injured her must pay a fine, as in civil cases. So we see that the life of the fetus is not quite equivalent to that of the mother.

Many people like to cite the Talmudic dictum that a fetus is not an independent entity but rather “a limb of its mother” (Baba Kama 78b). Even under this understanding, it doesn’t halachically justify abortion in all cases. After all, it might be halachically permitted to amputate a limb in cases of medical necessity but one can’t do so for just any reason.

This latter dichotomy, however, may give us insight into the mishna in Erchin (1:4), in which we learn that if a convicted woman is pregnant, they do not delay her execution until after she has given birth (because the fetus is just a part of her). If labor has started, however, then her execution is delayed (because the child is its own, independent life).

If everything seems to contradict everything else… well, that’s kind of the point. The status of a fetus is inherently not a black-and-white issue, so a person of any political persuasion could cherry-pick parts that support their view.

As far as rape and incest, happily (I imagine), there is not a lot of precedent in that area from which to draw conclusions. Lot’s daughters committed incest with their father, giving birth to Ammon and Moav. They did so in an active attempt to become pregnant, so abortion was never a question. Yaakov’s daughter Dina was raped by Shechem. There are (contradictory) midrashim that suggest that this union may have produced a child but there is nothing in the actual text. There was no pregnancy (so far as we know) in the incident of Amnon and Tamar in the book of II Samuel, which was apparently a case of both rape and incest. Ben Sira was an ancient author of wisdom, who is occasionally quoted by the Talmud; according to legend, he was the offspring of the prophet Jeremiah and the prophet’s daughter, who was impregnated by bathwater. I didn’t come across a single case in Biblical/Talmudic literature in which an abortion was sought after a case of rape or incest, so there’s simply no information to be gleaned.

So far, I’ve done everything but answer your question, so let’s go back to what we know for sure: we see from the mishna in Ohalos that abortion is permitted in a case of danger to the mother’s health. According to a number of halachic authorities, this would include not only her physical wellbeing but also her mental and emotional states. It would perhaps be too broad a stroke to say “abortion is permitted in cases of rape and incest” but it would not be unreasonable to say that for many (probably most, possibly all) women, being forced to carry a pregnancy from such an assault would create an amount of mental and emotional stress that would justify termination.

As noted at the outset, this is a huge and complicated area of halacha and it would be an oversimplification to suggest that any approach is one-size-fits-all. If one is ever involved in a real-life situation that needs addressing (God forbid), it would be appropriate to consult with a suitable rabbinic authority in order to receive guidance that is tailored to the individual situation.

Sincerely,
Rabbi Jack Abramowitz
JITC Educational Correspondent

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