Bibliotheca
Sacra 146 (1989) 132-47.
Copyright © 1989 by
Exodus 21: 22-25 and the
Abortion Debate
Robert
N. Congdon
Physician
As a member of the medical community in
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
the
humanistic ethic has undermined the intrinsic value or sanctity
of all human
life.
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
1 George F. Will, "The
Case of the Unborn Patient," Newsweek, June 22, 1981, p. 92.
2 John Warwick
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.
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.
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
menical Studies (Summer 1982): 582-87.
18 Floyd E. Schneider,
"Penology in the Mosaic Law" (ThM thesis,
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 (
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,
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:
October-December
1982): 348; R. Alan Cole, Exodus (
ress, 1973),
p.169.
23 Scott
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
Law,"
p. 20.
33 Ibid., p. 38, n. 35.
34 Kline, "Lex Talionis
and the Human Fetus," p. 198.
35 Ibid.
36
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
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
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
Fetus, and
Newborn Infant," in Williams Obstetrics, 17th ed. (
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