Digest of Biblical Civil Law

First, Exodus 21:22–23 is not really about abortion, one way or the other. It deals with a particular judicial case. Two men struggle (fight) with one another. We are not told why. A pregnant woman is standing near enough that she is affected by the altercation. She goes into premature labor. This particular case law covers all the “cases,” everything from no harm to death. Second, the woman is not deciding to have an abortion. At one level, it’s an accident that she goes into labor. At another level, however, the men should not have been fighting, so there is some liability.

Third, the text is clear, she is pregnant with at least one child: “And if men struggle with each other and strike a woman with child. . .” (Ex. 21:22). The word hareh means a pregnant woman with child. It’s clear that she is not carrying around a mass of undefined tissue that all of a sudden becomes a human being only when he or she exists the sanctuary of the womb. Fourth, the Bible attributes self-consciousness to preborn babies. Jacob and Esau are said to have “struggled together within” their mother’s womb (Gen. 25:22). The New Testament offers a similar glimpse into prenatal consciousness: “And it came about that when Elizabeth heard Mary’s greeting, the baby leaped in her womb” (Luke 1:41). “Struggling” and “leaping” are the result of a particular piece of information indicates consciousness. It’s absurd to claim that in Exo. 21:22 killing an unborn “fetus” is nothing more than a property crime rather than the killing of a human being. The original Hebrew reads: “And if men struggle with each other and strike a pregnant woman so that her children [yeled] come out. . . .” Notice that the text uses the word “children,” not “products of conception.” The Hebrew word for “children” in this verse is used in other contexts to designate a child already born. For example, in Exodus 2:6 we read: “When Pharaoh’s daughter opened [the basket], she saw the child [yeled], and behold, the boy was crying. And she had pity on him and said, ‘This is one of the Hebrews’ children [yeled].’” Since in the Exodus case these are “children that come out,” they are persons, not a body part like an appendix or a kidney.

The King James Version takes a different translation approach, but it is consistent with the argument that “children” are “coming out” in the altercation with the fighting men and pregnant woman. The KJV reads, “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” (Ex. 21:22). The use of the word “fruit” is a descriptive euphemism for a born child in the Old Testament (Gen. 30:2) and the New Testament (Luke 1:42).

If there is no injury to these individuals—the mother and her prematurely delivered child or children—then there is no penalty. If there is injury, then the judges must decide on an appropriate penalty based on the extent of the injury either to the mother and/or her children because both are persons in terms of biblical law. If the woman and the children do not die, the one who hurts her shall surely be punished by a fine. But if any mischief happens, that is, if the woman dies or the children, then you shall give life for life.

Some translations have “so that she has a miscarriage.” But there are two Hebrew words that fit the circumstances of miscarriage or premature birth: “There shall be no one miscarrying [shakal] or barren in your land” (Exo. 23:26; also Hos. 9:14). The Hebrew word for “miscarriage” was available to Moses since it appears just two chapters later. Another example is found in Job: “Or like a miscarriage [nefel] which is discarded, I would not be” (Job 3:16).
- Gary DeMar, Aborting a Bad Argument (May 17, 2010), at http://americanvision.org/2509/aborting-a-bad-argument/.