abstract: ...the foetus, though enclosed in the womb of its mother, is already a human being (homo) and it is almost a monstrous crime to rob it of the life which it has not yet begun to enjoy. If it seems more horrible to kill a man in his own house than in a field, because a man's house is his place of most secure refuge, it ought surely to be deemed more atrocious to destroy a foetus in the womb before it has come to light....
National Reform Association ==>Christian Statesman ==>November - December 1999 ==>The Crime of Abortion and Its Just Punishment
On October 21, 1999, while debating a bill that would ban the so-called practice of "partial-birth abortion," the United States Senate went on record as supporting the 1973 Roe v. Wade decision that legalized abortion in America. In a non-binding resolution, the Senate, by a 51-47 vote, stated that the High Court's ruling established abortion as "an important constitutional right," and it should not be overturned. Therefore, in the resolution a majority of the Senators declared that abortion is lawful in the United States--it must not be outlawed by any of the states and no criminal sanctions are to be visited upon anyone who has or performs an abortion.
In contradiction to the Senate, the "world's greatest deliberative body," the Lord of heaven and earth declares in His Word that abortion is a crime against God and man. In specific biblical legislation given in Exodus 21:22-25, abortion is identified as a civil crime that is to be punished according to the lex talionis standard of justice.
In the Old Testament law, there are two types of legislation. First, there are the "statutes" which set forth positive laws (commands) that require or prohibit specific actions. These statutes are given in the recognizable form of "thou shalt" and "thou shalt not." Statute law is often referred to as apodictic law because the wording of the law is demonstrative and certain (i.e., it declares, commands, or prohibits).
Second, there are the "judgments" that give the legal decision that brings justice in a particular case. These case laws are recognizable by the "if... then" structure; if such and such is the case, then this is what ought to be done. The "judgments" of biblical law are often referred to as casuistic (from the French word for "case") law because these laws apply the moral law of God to specific cases. The genius of the case laws is that they establish righteousness and justice in a particular case so as to establish the moral duty in all related cases. By giving judgment in one case, the Lord sets the standard of justice for every related case.
The legislation of Exodus 21:22-25 is in the form of a case law. Therefore, the proper use of this law requires a careful consideration of both the specific case in view and the judgment given by the Lord to establish justice in this case. Having accomplished this, the law of Exodus 21:22-25 can be applied to all similar cases.
The text of this case law is as follows:
If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.
This legislation appears in a section of the Book of the Covenant dealing with matters of murder, assault, and personal injuries (21:12-36). Hence, the moral law of the Sixth Commandment (which commands man to love his neighbor by laying aside all hatred and refraining from any act that would endanger his life or deliberately take his life) is being stated and applied to various incidents.
In this particular case-law application, two (or more) men are involved in a quarrel that has come to physical violence. As they wrestle with one another and trade blows, a woman with child is struck. Because of the blow to the woman, labor is induced and the child is born. In the aftermath of the birth two possible scenarios are given. First, neither the mother nor the child are injured. In this circumstance, the man who struck the woman is only required to pay compensation for the trauma and endangerment brought on by the blow and the premature birth. In the second situation, there is injury or death to either the mother or the child or to both of them. In this case, the man who struck the woman must be punished according to the measure of the injury sustained; and if one or both die, the man is to be put to death. This is a general survey of the aspects of the case. However, we must go further and inquire a bit more carefully if we are to grasp all the details of the case, and properly apply it to related cases.
To begin, we must seek to ascertain the woman's relation to the events. Is she simply a bystander, or is she a participant in the struggle? Although the text could allow for either, the evidence suggests that she is more than a bystander. In another case law given in Deuteronomy 25:11, we have the same scenario of two men striving (the same Hebrew word is used in both Ex. 21:22 and Deut. 25:11), and the wife of one them intervenes to assist her husband. This is probably the case here.
Furthermore, it appears that the woman was deliberately struck by one of the participants in the struggle.1 The text uses the plural form of the verb "hurt," and this would seem to indicate that both are responsible for the injury. However, when the penalty aspect of the law is stated, it is always in the singular, which must mean that only one of the two is considered guilty. Two men were fighting, and because of their brawl the woman is struck; this accounts for the plural "hurt." But only one of the men actually hit her; this accounts for the singular "he shall be surely punished." Hence, the fact that only one is punished when both were involved in the fight would indicate that the blow to the woman was deliberately inflicted. Therefore, the case, most likely, involves the deliberate striking of a pregnant woman with malice and intent to harm. This interpretation finds confirmation in the later statement that the guilty man is liable to death if the woman or child dies. In biblical law, the death penalty for homicide is required for the deliberate taking of human life through anger or premeditation, but is not inflicted for accidentally killing a man.
The woman in this case is said to be "with child." The Hebrew word is an adjective derived from a verb that means "to conceive." Thus, it describes a woman who has conceived and is carrying a child in her womb. The text could be translated, "If men strive, and hurt a pregnant woman...." The fact that the woman is pregnant is central to this case. The word "hurt" is a strong term that means "to strike or smite," and normally refers to a serious or even fatal injury.
The words "so that" introduce a final clause that indicates the result of the blow to the pregnant woman. The outcome of the violent blow is that "her fruit depart." There is debate among interpreters and translators over the meaning of this phrase. Some believe that it refers to a miscarriage, others to a live birth. Actually, the wording does not definitively indicate one or the other and could refer to either.2
The term "fruit" is a translation of the Hebrew word for "child" (yeled) and is in the plural here to cover the possibility of a woman who is carrying more than one child. The word "depart" indicates "to go out or to come out." In this context, it refers to the process of birth. The phrase, "her fruit depart," states that the child (or children) is born because of the blow the mother received. We are not told if the child is born alive or dead; both possibilities, and what to do in each case, are set forth in what follows.
The first possible case (v. 22) is that even though the pregnant woman is struck violently and this causes her to give birth prematurely, "yet no mischief follow." The word "follow" indicates "to fall out, come to pass, or come about." "Mischief" is a broad term that refers to any kind of harm or evil. Here it would stand for physical injury or even death. Thus, in this case, we are told that the blow to the woman that brought about the premature birth of her child did not cause any kind of serious harm or death to either the mother or the child. It is very important to note that both the mother and child are in view under the phrase, "yet no mischief follow": there is no justification in the text for limiting it to the mother only.3
In this case, even though there was no injury to mother or child, the man who struck the woman must still "be surely punished." The fact that he must be punished, regardless, provides further evidence that his striking of the woman with child was deliberate.4 The punishment prescribed is in the form of monetary compensation as sought by the husband and mediated by the judges. The "judges" refer to the civil magistrates appointed to govern the people and decide cases according to God's law (Deut. 16:18).
The second possible case (v.23) resulting from a man striking a pregnant woman is that "mischief" does "follow." Here some evil befalls mother and/or child. In regard to the mother, the mischief would be some sort of physical injury or death. In regard to the unborn child, the mischief caused by the blow could be: 1) death in the womb so that there is a miscarriage; 2) a live birth that is followed by death due to the complications of premature birth or to an injury sustained by the blow itself; or 3) a live birth where the child survives but has physical harm that is permanent or temporary due to the complications of premature birth or to an injury sustained by the blow.
If either the mother or the child suffer evil, or if both of them do, then the judges are to punish the man according to the lex talionis principle of justice--"life for life, eye for eye...." The lex talionis, or the law of retaliation, was a legal formula for judges and not a sanction for personal revenge (Matt. 5:38-42). This legal prescription taught magistrates that the punishment for crime must be according to the nature and severity of the crime. It was not intended to be applied literally, as is confirmed in the rest of biblical law, except in the case of murder--life for life. If the woman or the child died, the sentence of justice was that the man who struck the woman was also to die. If the woman or the child sustained injury, then justice required that the man make equitable recompense for the injury.
It is important to note that Exodus 21:22-25 is criminal law. The fact that this case law involves bodily assault, the adjudication of civil magistrates, and punishment according to lex talionis makes this clear. The text establishes that injury to a pregnant woman or to the child she is carrying is a crime, and it gives the just penalty for the crime.
As a case law this legislation is not giving one specific statute for the magistrate to enforce. Rather, this law gives to the judge the necessary instruction in righteousness and justice in all cases of assault and injury to a pregnant woman and/or to the child she carries within. Hence, this case establishes the protection of law for both the mother and the child within her womb. Accordingly, the Lord, as the judge of all the earth, covers two of the most vulnerable among men with the shield of His law. Magistrates, as His ministers, are to hold this shield on earth by declaring any assault upon a pregnant woman, and any injury to her or to her child, as a crime punishable according to the standards of lex talionis, and by actually punishing this crime if committed.
Specifically, this case law establishes the following:
Hence, the guilt of innocent blood is charged upon all who participate in the abortion: the doctor who actually kills the child with his saline solution and knife, the nurses who assist the doctor, the mother and any accomplices (such as the father or her parents) who with her seek the abortion, and the one who pays for the abortion. To each, the lex talionis standard of justice must be applied.
According to the principles of truth and justice revealed in the case law of Exodus 21:22-25, abortion is a horrible crime against God and man. It is an assault with intent to kill upon the weakest and most defenseless among us. As Calvin states in his comments on the text before us:
...the foetus, though enclosed in the womb of its mother, is already a human being (homo) and it is almost a monstrous crime to rob it of the life which it has not yet begun to enjoy. If it seems more horrible to kill a man in his own house than in a field, because a man's house is his place of most secure refuge, it ought surely to be deemed more atrocious to destroy a foetus in the womb before it has come to light.... Wherefore this, in my opinion, is the meaning of the law, that it would be a crime punishable with death, not only when the mother died from the effects of the abortion, but also if the infant should be killed; whether it should die from the wound abortively, or soon after its birth.7
William Einwechter is the vice president of the National Reform Association and the editor of The Christian Statesman. He can be reached at weinwec@innernet.net.
1. Because the text is somewhat ambiguous on this point, interpreters differ on whether or not the woman was deliberately struck or accidentally struck. Most, however, believe that it was not deliberate (in this, as this article shows, I think they are mistaken). Jordan presents both as a possibility, and concludes: "In summary, it is difficult to determine whether this case law deals with an accidental or deliberate assault. The vagueness of the wording indicates that we should allow it to speak to either situation." James B. Jordan, The Law of the Covenant (Tyler, TX: Institute for Christian Economics, 1984), 115.
2. Gentry observes: "More importantly it is imperative to note that the verb yasa ('go out') does not in any way necessitate the death of the child, as would be the case if the Hebrew word for 'miscarry' were here. It simply means that the unborn child comes out into the world from within the womb. The term is commonly used for normal deliveries, as in Genesis 25:26; 38:28-30; Jeremiah 20:18; etc. Only in one instance does it refer to a still-birth (Num. 12:12). Thus, what is being described here is a premature delivery, irrespective (at this point) of whether or not the action produces a living or dead child." Kenneth L. Gentry, Jr., The Christian Case Against Abortion (Memphis, TN: Footstool Publications, 1989), 63.
3. If the "mischief" only applied to the mother, the Hebrew would have indicated such by the addition of "to her." The absence of this qualification means that the possibility of harm is applied to the child as well as to the mother.
4. An accidental blow that leads to no harm does not seem to meet the criteria of a crime because there was no intent to hurt nor was there any evil consequence. The other possibility, however, is that the man is being punished for endangerment.
5. Those who believe that the case describes an accidental striking of the woman also apply this law to abortion. Rushdoony states in regard to Exodus 21:22-25: "If the penalty for even an accidental case [of abortion] is so severe, it is obvious that a deliberately induced abortion is very strongly forbidden. It is not necessary to ban deliberate abortion, since it is already eliminated by this law. Second, if a man who, in the course of a fight, unintentionally bumps a pregnant woman and causes her to abort, must suffer the death penalty, how much more so any person who intentionally induces an abortion?" Rousas John Rushdoony, The Institutes of Biblical Law (Phillipsburg, NJ: Presbyterian and Reformed Publishing Company, 1973), 263-264.
6. "The destruction of the unborn child was regarded by the Hebrews as an instance of the most barbarous cruelty, calling down God's judgment (2 Ki. 15:16 [and 2 Ki. 8:12])." R. Alan Cole, Exodus in Tyndale Old Testament Commentaries, ed. D. J. Wiseman (Downers Grove, IL: Inter-Varsity Press, 1973), 169. On the shedding of innocent blood see: Ps. 106:38; Prov. 6:16-17; 2 Ki. 24:3-4; Joel 3:19.
7. John Calvin, Commentaries on the Last Four Books of Moses, trans. Charles W. Bingham (Grand Rapids: Baker Book House, reprinted 1989), 3:41-42.
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