Bibliotheca Sacra 146 (1989) 132-47. 

          Copyright © 1989 by Dallas Theological Seminary.  Cited with permission.

 

 

 

                  Exodus 21: 22-25 and the

                          Abortion Debate

 

 

                                        Robert N. Congdon

                                               Physician

                                           De Soto, Illinois

 

 

 

 

 

     As a member of the medical community in America, it is with

special shame that this writer views the medically sanctioned, con-

tinuing slaughter of millions of unborn infants.  George F. Will

gently stated that "just as prenatal medicine was beginning to pro-

duce marvelous life-saving and life-enhancing achievements, Sup-

reme Court justices made it the law of the land that the patients for

such medicine have no right to life."1  The awful paradox is that de-

spite tremendous scientific and technological advances improving

the quality of life in the United States, an equally strong advance,

the humanistic ethic has undermined the intrinsic value or sanctity

of all human life.

     Montgomery commented, "While all sins are equal, some sins are

more equal than others."2  God's wrath, he wrote, seems particularly

kindled against certain sinful acts.  Uzzah (2 Sam. 6:6-7) or Ananias

and Sapphira (Acts 5) are examples.  Along with His concern for the

welfare of the family and the institution of marriage and for the

welfare of the Jews, God seems particularly interested in the welfare

of children.  Jesus said, "Let the little children come to me, . . . for the

kingdom of heaven belongs to such as these" (Matt. 19:14, NIV).

 

     Destruction by the horror of being thrown into the sea with a millstone

     around the neck is associated with Babylon in Revelation 18:21 and with

 

     1 George F. Will, "The Case of the Unborn Patient," Newsweek, June 22, 1981, p. 92.

     2 John Warwick Montgomery, "Abortion: Courting Severe Judgment," Christianity

Today, January 25, 1980, p. 54.

                                                          132



Exodus 21 :22-25 and the Abortion Debate                       133

 

     those who do harm to little children in Matthew 18:1-6.  A little child--

     unable to save himself and fully dependent--is, like the Jewish people,

     one of those weak things of this world chosen by God to "confound

     the wise."  Those who harm them do so at their peril, both in time and in

     eternity.3

     Many biologists, geneticists, and physicians agree that biologi-

cal life begins at conception.4  The Scriptures clearly add to that found-

ation by teaching that God places value on unborn life a sacred (see

for instance Exod. 4:11; Job 10:8-12; Ps. 139:13-16; Jer. 1:5; Matt. 1:18;

and Luke 1:39-44).  Waltke summarizes an insightful study of the

Scriptures relating to the nature of fetal life by concluding that "on

both theological and exegetical grounds. . . the body, the life, and

the moral faculty of man originate simultaneously at conception."5

     That the early church fathers recognized this truth is evidenced

in the writings of Tertullian, Jerome, Augustine, Clement of Alexan-

dria, and others.6  The one who studies Old Testament law is sur-

prised, therefore, in light of such evidence to find a paucity of legal

information relating to fetal life.  Kline observed, "The most sig-

ficant thing about abortion legislation in Biblical law is that

there is none."7  This lack of legislation relating to fetal life in He-

brew law is made even more significant by the finding several an-

cient Near Eastern codes of law that deal with the subject.8  For in-

stance a Middle Assyrian law dated between 1450 B.C. and 1250 B.C.

prescribed death by torture in cases of induced abortion.  The text

reads:  "If a woman by her own deed has cast [aborted] that which is

within her womb, and a charge has been brought and proved against

her, they shall impale her and not bury her.  If she dies from casting

that which is in her womb, they shall impale her and not bury her."9

      Does the silence of Old Testament law lead to the conclusion

that God condones the practice of abortion?  This question assumes

 

     3 Ibid.

     4  Statement of "Special Judiciary Committee on Separation of Powers," quoted in

Action Line (CAC newsletter), February 5, 1982, pp. 2-3.

     5 Bruce K. Waltke, "Reflections from the Old Testament on Abortion," Journal of the

Evangelical Theological Society 19 (Winter 1976): 3-13.

     6 John A. Rasmussen, "Abortion: Historical and Biblical Perspectives," Covenant

Theological Quarterly 43 (January 1979): 19-25;  John Ellington, "Miscarriage or

Premature Birth?" Bible Translation 37 (July 1986): 334-37.

      7 Meredith G. Kline, "Lex Talionis and the Human Fetus," Journal of the Evangelical

Theological Society 20 (Summer 1977): 193-201.

    8 H. Wayne House, "Miscarriage or Premature Birth?" Westminster Theological

Journal 41 (1978): 108-23; Bruce K. Waltke, "The Old Testament an Birth Control,"

Christianity Today, November 8, 1968, pp. 99-105.

    9 Cited by Waltke, "The Old Testament and Birth Control," p. 99.



134                 Bibliotheca Sacra / April-June 1989

 

greater significance in light of fact that such an eminent scholar

as Waltke proposed such thinking.10  The "argument from silence

that he proposed has been aptly dealt with by Scott11 and Craw-

ley.12  In light of their comment Waltke was humble enough to re-

tract his earlier conclusions.13

     The silence of Old Testament law referring to feticide does not

mean God is unconcerned about fetus.  Rather, it should lead one

to examine the entire weight of scriptural evidence relating to fetal

status.  Crawley writes that the omission of feticide is "one indica-

tion, among many, of the intense regard felt by the Jewish people for

parenthood and the future of their race."14  Kline states, "It was so

unthinkable that an Israelite woman should desire an abortion that

there was no need to mention offense in the criminal code."15

There is, however, one passage in Old Testament Law that men-

tions the human fetus.  The first of three Old Testament lex talionis

(law of retribution) passages is Exodus 21:22-25:  "And if men struggle

with each other and strike a woman with child so that she has a

miscarriage, yet there is no further injury, he shall surely be fined as

the woman's husband may demand of him; and he shall pay as the

judges decide.  But if there is any further injury, then you shall ap-

point as a penalty life for life, eye for eye, tooth for tooth, hand for

hand, foot for foot, burn for burn, wound for wound, bruise for bruise."

      Differences in interpretation of this law have alternately led to

both acceptance and rejection abortion by evangelicals.

     If it can be established from Exodus 21:22-25 that the unborn fetus is

     qualitatively inferior to fully human life, then the Bible-believing

     Christian must give serious consideration to the contention that there

     are several circumstances that may be greater evils than abortion, such

     as mental disorder in the mother, the probability that the child will be

     born malformed, or the trauma pregnancy resulting from rape.16

   

      This article examines Exodus 21:22-25 from historical, legal,

medical, and textual (linguistic) points of view to seek to reach

conclusion on its meaning, and to answer the question, Does the Old

Testament law condone abortion?

 

     10 Ibid., p. 100.

     11 Graham Scott, "Abortion and the Incarnation," Journal of the Evangelical

Theological Society 17 (Winter 1974):

      12 Encyclopedia of Religion and Ethics (1914), s.v. "Feticide," by A. E. Crawley, 6:

      13 Waltke, "Reflections from the Old Testament on Abortion," p. 3, note.

     14 Encyclopedia of Religion and Ethics, 6:55.

     15 Kline, "Lex Talionis and the Human Fetus," p. 193.

     16 Jack Cottrell, "Abortion and the Law," Christianity Today, March 16, 1973,

p. 7.

 



Exodus 21:22-25 and the Abortion Debate            135

 

      The Context

 

    The Book of the Covenant (Exod. 20:22-23:33) contains regula-

tions concerned with fairness and justice in human relationships.  Its

laws deal specifically with issues such as treatment of slaves, theft

and repayment, sexual mores, crimes of violence, and religious prac-

tice.  While the Ten Commandments (Exod. 20:2-17) summarize the

relationship of the covenant God to His people and relationships

between His people, the Book of the Covenant amplifies this

covenant law.

     The passage in question is found in a series of laws concerned

with cases of criminal negligence.  These are casuistic laws (case

laws) and as such are designed to answer particular legal questions.

Apodictic laws on the other hand are designed to state universal

truths (e.g., "Thou shalt not kill").  Exodus 21:18-19 deals with injury

inflicted during a quarrel.  Verses 20-21 concern punishment of slaves

and manslaughter.  Following the recitation of the lex talionis (vv.

22-25), then, are laws on specific injuries to slaves (vv. 26-27) and in-

juries inflicted by a goring ox (vv. 28-32).  At first glance there seems

little to relate these laws to one another.  But their "casuistic" na-

ture and the placement of the lex talionis in their midst does give

them some affiliation.

     The "law of retribution" is a well-documented legal formula of

ancient Near Eastern legal codes.  It is cited in the Mesopotamian

law codes of Eshnunna (ca. 2000 B.C.), Lipit-Ishtar (ca. 1860 B.C.), and

Hammurabi (1700 B.C.).17  In its literal application, exact retribution

for the injury (or death) incurred was to be applied to the offender.

That the law of talion did not always or even primarily require lit-

eral application, but merely application of its principle, has been

accepted by numerous scholars.18  Fisher notes the following:

     Even in prebiblical times, the principle of monetary substitution

     (payment of claims and damages) was gradually replacing literal,

     physical retribution. The code of Eshnunna, for example, states that "If

     a man bites the nose of another man and severs it, he shall pay one

     mina of silver.  For an eye, one mina; for a tooth one-half mina; for a

     slap in the face ten shekels of silver."19

     Examination of the two other biblical lex talionis texts concurs

with the idea that literal interpretation is not mandated. In

 

      17 Eugene Fisher, "Lex Talionis in the Bible and Rabbinic Tradition," Journal of Ecu-

menical Studies (Summer 1982): 582-87.

     18 Floyd E. Schneider, "Penology in the Mosaic Law" (ThM thesis, Western Conser-

vative Baptist Seminary, May 1978), pp. 7-12; Kline, "Lex Talionis and the Human Fe-

tus," pp. 196-97; Fisher, "Lex Talionis in the Bible and Rabbinic Tradition," pp. 584-85.

      19 Fisher, "Lex Talionis in the Bible and Rabbinic Tradition," pp. 584-85.



136      Bibliotheca Sacra / April-Jun     1989

 

Leviticus 24:18 the "life-for-life” principle is applied to the situa-

tion in which an animal's life is taken, and this is interpreted three

verses later by the statement that "the one who kills an animal

shall make it good."

     Likewise in Deuteronomy 19:5-21, which speaks of judging

false witness, there is "not a simple literal equivalence between the

terms of the talion penalty clause and all the variety of cases

which a false witness might figure."20

     The application of the law talion in Exodus 21 is similarly

nonliteral.  The kinds of injuries listed in the talion formula (e.g., a

burn) are not ones likely to occur in a situation where two men strug-

gle with each other and inadvertently strike a pregnant woman

Furthermore the immediate context refers to the situation in which

men quarrel and injury is inflicted (vv. 18-19).  Instead of the ex-

pected "wound for wound" formula, monetary compensation is man-

dated.  Similarly the passage that follows (vv. 26-27) mandates

decidedly nontalionic judgment:  a slave's freedom for traumatic loss

of eye or tooth.

     Clearly then the lex talionis formula provides for exact justice,

not for exact retribution.  The punishment must be commensurate with

the crime, neither too excessive nor too lenient.  One might postulate

on this basis that the penalty "life for life" might be amended in the case of

some cases as well.  Certainly the "ransom" allowed in the case of

the negligent owner of a goring ox (v. 30) would seem at first glance to

fit such a proposition.  However, owner's negligence is taken into

account here.  Keil and Delitzsch note, "As this guilt, however, had

not been incurred through an intentional crime, but had arisen simply

from carelessness, he was allowed to redeem his forfeited life by

payment of expiation money."21  And the homicide was not commit-

ted personally, with murderous intent, and therefore fell outside the

restriction of Numbers 35:31-32, which allowed no ransom in such

situation.

     In the case of premeditated murder, even the altar of Yahweh

could not protect the offender fro the death penalty (Exod. 21:14).

The application of lex talionis in Leviticus 24:17-21 makes it clear

that while "life for life" may only require compensation if the

death of an animal is involved, it most certainly requires capital

punishment if a man is killed.  Likewise the "cities of refuge" (Num.

35:9-21) were for those who had committed unintentional man-

 

     20 Kline, "Lex Talionis and the Human Fetus," p. 197.

     21 C. F. Keil and F. Delitzsch, "Exodus," in The Pentateuch, 3 vols., trans. James Mar-

tin, Commentary on the Old Testament (Grand Rapids: Wm. B. Eerdmans Publishing

Co., 1949), 2:135.

 



Exodus 21:22-25 and the Abortion Debate            137

 

slaughter.  One guilty of premeditated murder had absolutely no

recourse.  "You shall not take ransom for the life of a murderer who is

guilty of death, but he shall surely be put to death" (Num. 35:31).  If

the guilty one fled to a city of refuge, the Law stated that "the el-

ders of his city shall send and take him from there and deliver him

into the hand of the avenger of blood, that he may die" (Deut. 19:12).

     Every crime except for premeditated murder could be remedied

by restitution of some sort.  Even manslaughter could be remedied

this way, if the motives of the perpetrator were not culpable.

     As seen, lex talionis in Leviticus 24 applies the "life-for-life"

formula to the situation of intentional manslaughter.  Its application

in the Deuteronomy 19:21 context is likewise to a situation where in-

tentional manslaughter occurs (vv. 11-13) or is intended by false

testimony (v. 19).  While many have ascribed the lex talionis pas-

age in question (Exod. 21) to an event of unpremeditated injury,22 it

would seem evident from the biblical context of lex talionis usages

that an intentional event is being judged.  A study of talionic law in

Babylonian and Islamic contexts similarly reveals its application

only in cases of intentional homicide and injury.23

    In an excellent discussion of the intentional nature of this crime,

Layton analyzes the use of the Hebrew verb hcAnA in Exodus 21:22.24

The use of  hcAnA implies a premeditated, physical struggle.  This clari-

fes the enigma of a talionic punishment for the mortal injury in this

text.  Only in light of intentionality does the use of lex talionis make

sense.  Only in such a light can one understand the lack of any provi-

ion for the perpetrator's protection in a city of refuge.

 

The Case

    The law in Exodus 21:22-25 is formulated in a twice-repeated "if

. . . then" fashion.  The "if" part of each conditional statement, re-

ferred to as the protasis, speaks of the legal situation.  The "then"

part, known as the apodosis, speaks of the legal consequence.25  The

difference between the first statement (v. 22) and the second state-

ment (vv. 23-25) revolves around the word  NOsxA, translated "injury."

 

     22 John M. Frame, "Abortion from a Biblical Perspective," in Thou Shalt Not Kill, ed.

Richard L. Ganz (New Rochelle, NY: Arlington House, 1978), p. 52; J. Carl Laney,

"The Abortion Epidemic: America's Silent Holocaust," Bibliotheca Sacra 139

October-December 1982): 348; R. Alan Cole, Exodus (Downers Grove, IL: InterVarsity

ress, 1973), p.169.

     23 Scott Layton, "An Exegesis of Exodus 21:22-25 in the Light of Ancient Near

Eastern Law" (ThM thesis, Dallas Theological Seminary, 1979), p. 46.

      24 Ibid., pp. 12-13.

      25 Kline, "Lex Talionis and the Human Fetus," p. 193.

 



138     Bibliotheca Sacra / April-June 1989

 

The first statement speaks to the situation where there is no NOsxA and

a fine is mandated.  The second statement speaks to a situation in-

volving NOsxA and the lex talionis is applied.

      The protasis in verse 22 sets forth the situation where men are

fighting (most likely two men) with intent to cause injury.  Unfortu-

nately for all involved, a pregnant woman gets in the way of a blow

and is struck. Whether she is an innocent bystander or the wife of

one of the assailants is not clear from the text and is inconsequential

to the outcome.  What is of significance is what happens to the

woman.  After she is struck, "her children go out" (hAyd,lAy;  Uxc;yAv;).  Be-

cause the understanding of this phrase is critical to a correct under-

standing of this passage, it bears close evaluation.  Is this a case of

premature live birth or of miscarriage?

     The term dl,y, is the common Hebrew word for child or offspring.

Why the plural form is used here is unclear.  Keil and Delitzsch

suggest that it is used in an indefinite sense, to indicate that there

might be more than one child in the mother's womb.26   Kline proposes

that the use of the plural is "peculiarly appropriate to an aborted

fetus, especially at an earlier, more amorphous embryonic stage."27

House suggests that it is employed grammatically to indicate

"natural products in an unnatural condition."28

      While  dl,uy, elsewhere always means "living child" or one capa-

ble of living outside the womb (Gen. 44:20; Isa. 9:6), the adopting of

the plural in this case is a significant modifier indicating the unnat-

ural state of affairs.  But that the circumstances were unnatural does

not adequately answer the controversial question of whether the

baby "came out" alive or dead.

     Many recent interpreters have concluded that the use of the verb

xcAyA ("to go or come out") indicates nothing other than the birth of a

living child.29  This conclusion is based on two key points:  the Old

Testament usage of xcAyA, and the availability of a specific term for

miscarriage which was not employed.  As for the latter, the Hebrew

word for miscarriage is lkawA.  This term is used frequently throughout

the Old Testament (Gen. 31:38; Exod. 23:26; Hos. 9:14; 2 Kings 2:19;

etc.) referring to the miscarriages of women, of animals, and of non-

productive land.  As for xcAyA it is utilized in reference to the normal

births of Jacob and Esau (Gen. 25:25-26), Perez and Zerah (Gen. 38:27-

30), and Jeremiah (Jer. 1:5; 20:18).  When Job lamented about his own

 

     26 Keil and Delitzsch, "Exodus," p. 135.

     27 Kline, "Lex Talionis and the Human Fetus," p. 193.

     28 House, "Miscarriage or Premature Birth?" p. 114.

     29 Ellington, "Miscarriage or Premature Birth?" p. 337.


Exodus 21:22-25 and the Abortion Debate            139

 

birth, he used this word (Job 3:11; 10:18).  It has been purported that

in every case where  xcAyA is used in the context of childbirth it refers to

a live birth except in Numbers 12:12.  This verse is clearly speaking

of a stillbirth, but Cottrell is correct in noting that it is not the verb

that communicates the concept of death.30  In this verse the subject is

not dl,y,, "child," but tme, "something dead."31

     While xcAyA normally refers to ordinary childbirth, it is a neutral

term and may denote anything that "comes out" of the mother's

womb.32  In Numbers 12:12 it refers to a nonviable fetus.  In Job 3:11 it

is used to describe neither an ordinary delivery nor a stillbirth, but a

difficult delivery with resulting perinatal death of the infant,33 an

all-too-common occurrence even today in areas that have inadequate

obstetric care.

     The word xcAyA as used in Exodus 21:22 may refer to other than a

live birth.  Kline concludes that "it is not demonstrable either that

this language in itself must be understood with reference to a miscar-

riage or that it cannot be so understood."34  He astutely notes that

even those who allege that this must refer to a live birth take it to

refer to a miscarriage when they come to the second conditional

statement (v. 23).  For here they relate the (possibly) fatal injury to

both mother and child.35  (To maintain that dl,y, must indicate a liv-

ing child proves difficult at this same point, for a deadly injury to

both would obviously result in a miscarriage or stillbirth.)  This

writer feels that the weight of evidence favors an interpretation of

xcAyA in Exodus 21:22 as "miscarriage" and not "live birth."  This con-

clusion is based on the following textual, historical, and ancient

Near Eastern legal evidence and on medical evidence.

 

The Evidence

      First, as already noted, the textual evidence doe not mandate

an interpretation of "live birth."  In fact the Mishnah in its com-

mentary on this Exodus 21 passage (Baba Kamma 5:4) uses this pre-

cise phrase "unequivocally in the sense of miscarriage.36

 

     30 Cottrell, "Abortion and the Mosaic Law," p. 8.

     31 Ellington, "Miscarriage or Premature Birth?" p. 336.

     32 Layton, "An Exegesis of Exodus 21:22-25 in the Light of Ancient Near Eastern

Law," p. 20.

     33 Ibid., p. 38, n. 35.

     34 Kline, "Lex Talionis and the Human Fetus," p. 198.

     35 Ibid.

     36 Layton, "An Exegesis of Exodus 21:22-25 in the Light of Ancient Near Eastern

Law," p.22.



140     Bibliotheca Sacra / April-June 1989

 

     Second, the historical exegesis of the passage has universally

given it the meaning of miscarriage.  Waltke quite conclusively

makes this point, citing a long list of ancient scholars.37

     Third, a comparison with five ancient Near Eastern law codes in

similar case law formulations reveal that all of them refer to mis-

carriage and not to premature birth.38  As Layton comments,

      These laws cannot be ignored, for virtually all Old Testament exegetes

      acknowledge the value of them in illuminating the meaning of the legal

      portions of the text.  It would seem incredible for Exodus 21:22 to deal,

      with premature birth while the other five legal collections deal with

      miscarriage.39

 

     Fourth, of particular interest to to this writer is the medical data

that speaks to the viability of infants delivered prematurely after a

traumatic incident.

     Studies show that trauma of all types occurs in five to ten per-

cent of all pregnancies.40  In the early gestational period the uterus is,

protected by the bones of the mother's pelvis and is fairly immune to

trauma.  In the second and third trimesters of pregnancy the enlarg-

ing uterus becomes more and more vulnerable.  For this reason pene-

trating abdominal wounds have a high fetal mortality as pregnancy

progresses.  The situation described in Exodus, however, appears to

indicate blunt injury and not the penetrating variety (a stab wound is

not inferred).

     Contrary to popular opinion, blunt abdominal trauma that is not

severe usually causes no problem to the fetus, well-protected as it is

within the uterus and amniotic "shock-absorber."41  Well over two-

thirds of blunt trauma in pregnancy in the Western world happens in

the course of motor vehicle accidents or physical assault.  And even

in the high-energy impact of the former, "despite its prominence. . .

the uterus and contents stay intact most of the time."42

     Thus it seems fair to assume that the blow delivered in the bib-

lical case was significant.  Kline builds a convincing argument for

 

      37 Bruce K. Waltke, "Letter to the Editor," Christianity Today, January 3, 1969, p.

302.

     38 Layton, "An Exegesis of Exodus 21:22-25 in the Light of Ancient Near Eastern

Law," p. 18.

     39 Ibid.

     40 Michael Katz, "Maternal Trauma during Pregnancy," in Maternal-Fetal Medicine,

ed. Robert K. Creasy and Robert Reshick (Philadelphia: W. B. Saunders, 1984), p. 773.

     41 J. Pritchard, P. MacDonald, and N. Gant, "Injuries and Malformations of the

Fetus, and Newborn Infant," in Williams Obstetrics, 17th ed. (Norwalk, CT: Appleton, Cen-

tury, Crofts, 1985), p. 797.

     42 Katz, "Maternal Trauma during Pregnancy," p. 777.



Exodus 21:22-25 and the Abortion Debate            141

 

such an understanding of the verb JganA ("to strike") based on its use in

other scriptural texts.43

     The most common reason for fetal demise in such cases is the

death of the mother with secondary death of the unborn child.44

Kline's suggestion that the mother dies from the blow but the baby

lives45 is medically nonsensical: a cesarean section might save the

baby's life if it were performed within five minutes of the mother's

death.  If the mother survives and the child is born (in the bibli-

cal case), this raises the question of the status of the baby which

"comes out" prematurely.

     First, it is important to note that injury to the fetus in utero may

be direct or indirect.  Direct injury is rare, mainly occurring late in

pregnancy when the head is deep in the pelvis and major trauma

causes fetal skull fracture.  A recent review of the obstetric literature

revealed only 19 such reported cases.46  The outcome was almost uni-

versally fetal demise, except when cesarean section was performed.

There is no report of that particular surgical procedure having been

performed in the ancient Near East.

     Indirect injury to the fetus occurs when there is disruption of the

oxygen supply coming through the umbilical cord.  Rarely trauma

may result in uterine rupture with grave consequences for mother and

infant without immediate surgical intervention.  Such event occurs

in less than one percent of trauma.47  More commonly, in six percent of

blunt trauma during pregnancy there is an overt disruption of the

normal connection between the placenta and the uterus.48  Fetal mor-

tality in such cases, given the best obstetric and neonatal care avail-

able in the United States, is 34 percent.49  Another reference cites 30

to 68 percent fetal mortality.50  Without intravenous methods of

fluid therapy for the mother and surgical intervention, it is obvious

that the fetal outcome in the vast majority of these cases would be

death.  Timms states that "following uterine rupture or significant

 

     43 Kline, "Lex Talionis and the Human Fetus," p. 198.

     44 Katz, "Maternal Trauma during Pregnancy," p. 777.

     45 Kline, "Lex Talionis and the Human Fetus," pp. 198-200.

     46 Noelle Bowdler, "Fetal Skull Fracture and Brain Injury after a Maternal Automo-

bile Accident," Journal of Reproductive Medicine 32 (May 1987): 376

     47 Katz, "Maternal Trauma during Pregnancy," pp. 777-78.

     48 Ibid.

     49 Pritchard, MacDonald, and Gant, "Injuries and Malformation of the Fetus and

Newborn Infant," pp. 396-97.

     50 M. Rick Timms, "Blunt and Penetrating Trauma during Pregnancy: Four Cases,"

Journal of the Medical Association of Georgia 74 (March 1983): 159-160.



142     Bibliotheca Sacra / April-June         1989

 

placental separation, rapid exploration [surgically] and fetal

delivery provide the only chance for fetal survival."51

      Less severe abdominal trauma may result in smaller disruptions

of the placenta from the uterus, and less catastrophic outcomes.  It is

unknown how often an occult (self-limiting) placental separation

takes place in these situations, but it may be the cause of common

complaints such as "increased uterine activity" or slight cramping.

Most of these cases progress to a normal outcome.  In an excellent

study of trauma in pregnancy Crosby suggests that if fetal oxygena-

tion is impaired, labor or fetal death will occur within 48 hours.52

      Premature labor is a serious problem after trauma and is aggres-

sively treated in appropriate cases these days with medication to

stop uterine contractions.  The lungs of the developing infant are not

ready for life outside the womb until 33 to 34 weeks gestation (out of

40 weeks in a "full-term" pregnancy).  In a nonhospital setting, the

mortality rate of these infants is very high.

     There are only a few instances, in a nontechnological era, in

which blunt trauma serious enough to cause abortion of the fetus

would result in a viable birth.  If medical data has anything to say

about Exodus 21:22, it indicates that the overwhelming probability

for such a situation is an outcome of trauma-induced abortion with

fetal demise.

       The first conditional statement (Exod. 21:22) concludes with the

pivotal phrase "yet there is no NOsxA."  This word NOsxA is used only

three other times in the Old Testament.  All three occurrences are in

the story of Joseph (Gen. 42:4, 38; 44:29) and describe a severe or

deadly type of injury.  Jackson, among others, has concluded that this

passage must also be relating a mortal injury.53  But the evidence is

not decisive.  House comments in response:

      Jackson should be tempered a little in his understanding of ason in

      view of the rarity of the word. He surely demonstrates that the word

      refers to severe or even fatal injury, but the text in Exodus, the only

      other section of the Old Testament using the word, could allow for ason

      to be applied to a lesser injury.54

 

      Since the infant has miscarried due to the blow, the "no injury"

statement must apply to the mother. Occasionally a woman in such a

 

     51 Ibid., p. 161.

     52 W. M. Crosby, "Trauma during Pregnancy: Maternal and Fetal Injury," Obstetrical

and Gynecologic Survey 29 (1974): 683.

     53 Bernard S. Jackson, "The Problem of Exodus XXI 22-25," Vetus Testamentum 23

(July 1973): 274-75.

    54 House, "Miscarriage or Premature Birth?" p. 120.



Exodus 21:22-25 and the Abortion Debate            143

 

circumstance would experience minimal external injury, but the pla-

cental disruption would nevertheless result in fetal death and mis-

carriage.

      Some maintain that NOsxA must apply to both mother and child,55

particularly to the child because of the grammatical structure of

the sentence.56  Others are equally convinced that the mother alone

is referred to by NOsxA.57  The linguistic evidence is equivocal, and in

light of the evidence illuminating one's understanding of the rest of

the protasis, it becomes evident that "no NOsxA" applies to the mother.

 

The Judgment

     The apodosis of the first conditional statement (Exod. 21:22)

gives the judgment to be rendered in such a case:  A pregnant woman is

struck inadvertently, in the course of a physical struggle in which

men are intending to injure one another, and as a result of the abdom-

inal blow she suffers a miscarriage.  In such a case the perpetrator is

to be fined as the woman's husband may demand of him, and "he

shall pay as the judges decide."

      The word "fine" has also been interpreted variously.  Kline has

expressed his opinion that the Hebrew word here, wnafA might carry

the more general meaning of "punishment" in any form.58  Taking

that interpretation, he builds a case for the understanding that this

punishment would often be death or a "ransom" to be paid in place of

death.  His conclusion is appealing:

     It will appear that even if it were granted that the first penalty has ref-

     erence to a miscarriage and the second penalty to has suffered by

     the woman, as the dominant interpretation suggests, it would still not

     follow that the penalty for the destruction of the fetus was different in

     kind or even in degree from the penalty for harming the woman.59

 

     However, the evidence is less than compelling for accepting such

an understanding of the word wnafA.  In its other Old Testament appli-

cations it is used to denote the imposing of a monetary fine (Deut.

22:19; 2 Chron. 36:3).  The noun also usually speaks of a monetary

 

     55 Frame," Abortion from a Biblical Perspective," p. 55; House, "Miscarriage or

Pre-mature Birth?" p. 8.

     56 Kline, "Lex Talionis and the Human Fetus," p. 199.

     57 Waltke, cited by House, "Miscarriage or Premature Birth?" p. 117; Kenneth

Kitchen, cited by Layton, "An Exegesis of Exodus 21:22-25 in the Light of Ancient Near

Eastern Law," p. 27.

     58 Kline, "Lex Talionis and the Human Fetus," pp. 194-95.

     59 Ibid., p. 194.



Bibliotheca Sacra  /  April-June       1989

 

penalty.60  There are other Hebrew terms, furthermore, which might

have been better used to imply physical retribution (e.g., MqAnA

"vengeance").

     This fine was to be limited and enforced by "judges," as most in-

terpreters have understood the final phrase.  House quotes Morgen-

stern on this point:

     It goes without saying, of course, that his law never contemplated that

     the husband could demand of the offending party any sum of money

     or any other compensation that he might desire, for then there could

     well be no limit to what he might claim.  Some method of regulation of

     the demand of the husband, so that it might be kept within reasonable;

     limits, was absolutely indispensable; and just this must have been pro-

     vided for in the last two words of the sentence.61

 

    Frame expresses discomfort with the idea that a mere fine

should be sufficient compensation for, the loss of an unborn Hebrew

child.62  While other ancient Near Eastern law codes required such,

pecuniary compensation in similar circumstances, it seems incongruous

that the Scriptures should present the fetus so clearly as fully hu-

man life (as noted earlier) and yet allow a fine here instead of life-

for-life retribution.

     Some have suggested the casuistic nature of the law sheds some

light on this enigma.63  Casuistic law as designed to meet the needs

of a particular case.  The guilty party, though judged for an in-

tentional crime by lex talionis in the case of the woman, did not

strike her abdomen with murderous intent toward the fetus.  There-

fore in this case the legal decision was not the normal judgment for

manslaughter or murder, but a fine.  This would fall into the same

class as the nearby case law involving the negligent ox-owner (Exod.

21:28-30).  His goring ox was a repeat offender and finally gored

someone to death.  The ox was killed while the owner, though guilty,

got off in some instances with a monetary settlement (a "ransom").

     One problem with this argument is that the same,

"intentionality" that made the offenders liable for the death of the

mother should also have made the liable for the death of the fe-

tus, if both were of equal status.

      Perhaps it is more accurate to suggest that the Old Testament

Law placed different value on different lives.  The lives of slaves

 

     60 Theological Wordbook of the Old Testament 1981), s.v. "wnafA" by Ronald B. Allen,

2:685-86.

     61 Morgenstern, cited by House, "Miscarriage or Premature Birth; p. 122,

     62 Frame, "Abortion from a Biblical Perspective," p. 56.

     63 Ronald B. Allen, Abortion: When Does Life Begin? (Portland, OR: Multnomah

Press, 1984), pp. 12-13.



Exodus 21 :22-25 and the Abortion Debate           145

 

and aliens were repeatedly given a valuation less than, that of He-

brew citizens.  For instance in the preceding case (Exod. 21:20) a slave

beaten to death by his master.  Instead of the phrase "he shall

be put to death," as would have been the ruling for murder,

the man was to be "punished" or "avenged."  Some suggest that this

meant he must be put to death, but this interpretation is doubtful.

The next verse is more blunt:  "If, however, [the slave] survives a day

or two, no vengeance shall be taken; for he is his property" (v. 21).

      Allen writes that since a fine was paid for the life of the

slave--certainly a human being--in the same way the paying of a

fine for the life of the fetus does not indicate a life that was less

than fully human.64  He states, "The less severe penal relates more

to the circumstances of the crime than of the kind of life that was

lost."65  While agreeing with the truth of the former statement this

writer feels that the logic is reversed in the latter.  The circum-

stances (while of significance) are of less importance, not more.  The

kind of life lost--though without doubt fully human is of greater

importance than the circumstances.

     In the case of the goring ox circumstances are exactly the same

for three different groups of fully human persons:  Hebrew adults,

Hebrew children, and slaves.  The murderous ox is slaughtered in

each case, indicating its blood-guiltiness in the taking of human life.

But the culpable owner is in danger of losing his life only if the ox

gored to death a free Hebrew person.  The slave's life is simply ex-

changed for 30 shekels.  Without question, the kind of life that was

lost determines the difference in the severity of the penalty.

      The punishment for illicit intercourse with a female slave pre-

sents the same scenario:  The circumstances of the crime are identical,

but the kind of person molested makes a difference when it comes to

assigning a penalty.  As Leviticus 19:20 states, "Now if a man lies

carnally with a woman who is a slave acquired for another man, but

who has in no way been redeemed, nor given her freedom, there shall

be punishment; they shall not, however, be put to death, because she

was not free."

     Furthermore as recorded in Leviticus 27, the Lord gave Moses in-

structions for redeeming persons or items dedicated (enslaved) to the

Lord by rash vows.  In this passage a monetary value is assigned to

individuals.  While elsewhere the slave's life is valued at 30

shekels, here an adult Hebrew male is worth 50 shekels.  The

valuation of a Hebrew female was 30 shekels.  Those either younger

or older received a smaller valuation.  For instance male children

 

     64 Ibid., p. 12.

     65 Ibid.



146     Bibliotheca Sacra / April-Jun    1989

 

from one month of age up to five ears were given a substitutionary

worth of five shekels, and female in the same age-group were val-

ued at three shekels (Lev. 27:6).  The priest would assign a redemp-

tion price for a person too poor to pay at the usual rate (v. 8).

     The God of the Hebrews places high priority and value on all

human life.  It must be understood that "the moral nature of the Mo-

saic Law far surpassed the paganism of the other ancient Near East-

ern law codes."66  The rights of slaves and others of inferior status

were guarded carefully.  But incongruous as it may seem, God chose to

place a higher value on some lives than others.  God chose Israel to

be His own special people, and in so doing "chose against" the alien.

God chose to value the life of a free Hebrew adult more highly than

that of a slave.  In the situation where lives were being vowed to the

Lord, He placed a lesser value on women than men, on young children

than adults.  This should help one understand how in Exodus 21:22

the life of the fully human fetus might receive a monetary valuation

instead of the life-for-life edict.

 

The Conclusion

     The second conditional statement (Exod. 21:23-25) is now easily

understood.  If a pregnant woman were violently struck by men fight-

ing together and she subsequently miscarried but suffered no personal

injury, a fine was imposed on the guilty individual.  If there were

any NOsxA (grave injury) to the woman, then the lex talionis applied.

If she died, as would frequently occur in such a circumstance, life for

life was the penalty.  For a lesser injury, the punishment was to be in

measure, commensurate with the damage done.

     It has been shown that the unborn fetus was regarded as fully

human life from the time of conception.  However, the valuation

placed on the unborn was less than that placed on a Hebrew adult or

child.  Analogously in the context of the passage a lesser value

given to the slave.  Does this mean, as Cottrell has stated, that

there may be rationale for "therapeutic" abortion?  Might there

circumstances in which the endangered psycho-social health of the

mother or the probability of fetal malformation would be greater

evils than abortion?

     Based on this review of pertinent Scripture, the writer does not

believe so.  As Frame has written, "Doubtless the unborn child, like

the slave, had a lesser status in Israelite society than other persons.

It cannot be demonstrated, however, that this lesser status was a

 

     66 Schneider, "Penology in the Mosaic Law," p. 60.



Exodus 21 :22-25 and the Abortion Debate           147

 

status of nonpersonhood.  And that is the point at issue."67  Fetal life

is fully human life.  The only circumstance that presents a greater

"evil" than abortion (and thus would weigh in favor of abortion

based on the lesser status of the fetus) is the unusual situation where

the gestation presents a life-threatening danger to the mother (one

of greater status).  Fortunately such an occurrence is exceedingly rare

these days, except in the form of ectopic pregnancy.

     Jones feels this very situation is the downfall of the principle of

"fetal inviolability," and thus he postulates a number of situations

in which abortion might not be the greatest evil.68  But his position,

has been shown, is not the biblical one.  Opting to sacrifice one life

in order to save another from death is entirely different from des-

troying one life in order to save another from distress or discomfort.

      It is worth noting that this casuistic law was written to meet the

needs of a particular set of events.  Those events were wholly differ-

ent from the events that today lead to an elective abortion.  In the

latter situation, it is the mother herself who willingly submits to

aggression against the human life within her.  As Allen has written:

      On no account, then, may this text in the Law of Moses be used as a ra-

      tionale for abortion on demand as practiced today.  The circumstances

      are too different to be compared.  How can we compare the accidental

      miscarriage of a woman caught up in a street brawl to the decision of a

      woman today to go to one of the clinics that specializes in the purpose-

      ful termination of life?  There simply is no parallel in he Bible, nor

      does there seem to be any biblical justification for the current practice

      of abortion in our culture.69

     In any interpretation Exodus 21:22-25 treats the destruction of

the unborn child as an unjust and illegal action.  Frame is correct in

stating that "it is perverse indeed to attempt to justify abortion by

reference to a passage that condemns precisely the sort of destruction

performed by the abortionist.70  May the truth of Scripture touch

people's hearts today and give them renewed motivation to love life

as God does and to honor the weak of this world as He honors them.

    

     67 Frame," Abortion from a Biblical Perspective," p. 53.

     68 D. Gareth Jones, "Abortion--An Exercise in Biomedical Ethics," paper presented to

the American Scientific Affiliation Conference, n.d., p. 22.

     69 Allen, Abortion: When Does Life Begin? pp. 13-14.

     70 Frame, "Abortion from a Biblical Perspective," p. 52.  

 

This material is cited with gracious permission from:

Dallas Theological Seminary

            3909 Swiss Ave.

            Dallas, TX   75204

            www.dts.edu

Please report any errors to Ted Hildebrandt at:  thildebrandt@gordon.edu