Tough Biblical Question: Lex Talionis and Human Abortion

In Exodus 21:22-25 we find a passage where people have argued both sides of the abortion debate. It reads:

“If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

Abortion-rights advocates argue this passage actually demonstrates that the unborn child is not viewed as a full person, morally or legally. Their argument is that the fetus is treated like a piece of property. Namely, in the first scenario, “A,” where there is “no serious injury,” this refers to the woman’s estate after having been struck. A miscarriage has happened but she is okay. Thus a fine is levied as a payment for the loss of the fetus as with a property loss. In the second scenario, “B,” this is taken to mean a “serious injury” caused to the woman, thus the lex talionis, “the law of equal payment” is invoked to cover all possibilities. In this case the “life for life” phrase is applied to the woman, whereas the fetus in scenario “A” is treated as property. On this rationale, certain religious advocates for abortion-rights say that the woman’s life should take precedence, and that abortion is not a moral issue. Yes, the woman’s life should take precedence, for it is with her that the power to give resides toward the child; but no, even this interpretation cannot reduce the humanity of the unborn. To do so would be for this passage to be used to deny every other witness in the Scripture that undergirds the image of God status, the nephesh of the unborn. Neither the unborn, nor any image-bearers of God, are ever treated as property in Scripture. To do so equals classic eisegesis. To reify (treat as property) the unborn is a reactionary take before you are taken ethos, not the power to give.

To sum up the pro-abortion interpretation of the two scenarios in Exodus 21:22-25:

In scenario “A” there is “no serious injury” inflicted on the pregnant woman, but she miscarries. A fine is levied against the offender for the loss of the fetus, but the fetus is treated as property, not as a human being. In scenario “B” there is a “serious injury” caused to the woman. The fetus is already dead, and the lex talionis of “equal payment” of “life for life” applies to the woman as a human being, but not to the fetus.

But as Meredith Kline points out in an article “Lex Talionis and the Human Fetus” (Journal of the Evangelical Theological Society, September, 1977), this is not what the text says. In fact, he leads off his article with an opposite view:

“The most significant thing about abortion legislation in Biblical law is that there is none. It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code …

“This law, found in Exodus 21:22-25, turns out to be perhaps the most decisive positive evidence in Scripture that the fetus is to be regarded as a living person.”

Kline designates the two scenarios as “A” and “B,” as I reflected above. And he points out that the hinge words are those (translated in the NIV) as “strike” and “injure.” When it says that the fighting men “strike” the woman, the Hebrew verb in use is nagap. It is not the ordinary term for hitting or striking someone, but its usual reference in other contexts means “to strike with death” or “to cause fatal divine judgments.” Context determines the appropriate translation in Hebrew, and the subject of scenario “A” is the miscarried or prematurely born child. The woman has been fatally struck – she is dead – and in the process she delivers a premature child due to the trauma. Thus the focus of this law is on the well-being of the untimely born child – one who should have still been unborn, awaiting the completion of the pregnancy.

In scenario “A” there is “no serious injury” (to the unborn). Kline points out that the Hebrew term here is ason. It is a rare term, only used in three other instances, located in Genesis 42 and 44 in reference to Jacob’s fear for the “injury” or “harm” that might have befallen his son Benjamin. Jacob feared a calamitous accident, not some normal occurrence. In this sense, it is parallel to the calamity of miscarriage, and as well, to the potential loss of a child. Thus, both the terms nagap and ason are unusual terms, and Moses uses them to describe with precision the subject of his concern – the prematurely born child. This is consistent with the Bible’s whole treatment of the unborn, and the parallel between the unborn and the prematurely born is as natural as the parallel language used often (at least 30 times that I have noted; cf. Isaiah 33:11) in Scripture between “conception” and “birth.”

Some abortion-rights advocates then say that this reduces the woman to property, because in scenario “A” the woman is dead, the child is fine, and the husband receives a payment for the loss of his wife’s life. However, this misreads the very nature of redemption and lex talionis. What is happening is that the husband is provided by law, in the case of unintentional manslaughter, for financial compensation due to the loss of his wife. Her life cannot be restored, and it was not premeditated murder, so the lex talionis is referred to specifically in view of this known outcome. Had the husband wanted to demand the life of the men who were fighting, and had the court allowed, they nonetheless would have had the option to flee to a city of refuge. The justice present here is something almost wholly absent today in the United States – compensation for the victims, a modicum of payment required of the offender to ease the suffering of the living victim, and to serve as a means of deterrence for future folly. And such lex talionis would also benefit a woman who lost her husband to an act of manslaughter.

In scenario “B,” the reference is thus to the possible outcomes of various forms of serious ason to the child, and the lex talionis is invoked to cover all contingencies. The purpose of lex talionis is to set the basis for the ransom price of the offender’s life – what economic levy they had to endure to make up for the loss to the victim – the unborn in this case, since scenario “A” already addressed the husband’s wife. Finally, when the text says “life for life,” the Hebrew is nephesh tahath nephesh. And as Chapter Three has given evidence, the unborn qualify fully as nephesh.

To sum up the proper exegesis and interpretation of Exodus 21:22-25:

In scenario “A” the woman is struck dead, but there is “no serious injury” to the prematurely born child. A fine is levied against the offender for the loss of the woman’s life, in view of lex talionis. In scenario “B” the prematurely born child also suffers “serious injury,” and the offender is fined according to the lex talionis nature of the injury caused.

In both cases, “life for life” is applied, nephesh for nephesh, as both mother and unborn child are full image-bearers of God, with equal protection under the law for an equal humanity. The Bible countenances no war between mother and child in competing definitions of the worth of human life based on a pagan “achievement ethic.”

The All-Defining Subjects of God → Life → Choice → Sex

In 1986, I was asked to give a biblical pro-life position at a meeting of regional leaders from the American Baptist Churches (ABC), along with the national leaders of the Religious Coalition of Abortion Rights (RCAR).

Because of alphabetical placement, the ABC was always listed at the top of RCAR’s listing of member organizations (though it was only one committee in the ABC that had joined). Many in the denomination did not like this. So the ABC was reconsidering its affiliation with RCAR through a series of similar meetings across the nation.

It was a tense gathering despite the best attempts by the organizers to make it pleasant. I gave a theological sketch rooted in Genesis 1-2, part of which involved defining the relationship between life and choice. Namely, both are given to us by God, but choice is designed to be in service to life, not employed to destroy it. And I defined how the unborn fully qualify as human life, made in God’s image. The RCAR representatives in turn called me “anti-choice.”

So I asked them to define how choice relates to life, and they were unable or unwilling. I stated how I was truly “pro-informed choice” in my position, they did not refute my definitions, only falling back to the language of calling me “anti-choice.” I later learned that the ABC rescinded its membership in RCAR.

In March of 1989, I was invited to speak at a Crisis Pregnancy Center banquet in Ithaca, New York, in conjunction with a debate at Cornell University. In the banquet address, I was defining the ethics of choice rooted in Genesis 2. As I was speaking, I moved from an implicit clarity to an explicit one, namely, that the theological order of Genesis 1-2 starts with the sovereign God, then it defines the purpose of creation as the making of human life in God’s image, followed by God’s first words to Adam which equaled the gift of choice. It hit me – so simple:

God → Life → Choice.

The three basic elements of the order of creation, I thought. The three basic issues surrounding the abortion debate, it appeared. By extension, the reversal of this order was:

Choice → Life →/ God.

However, the next week I set to reviewing Genesis 1-2 with this newly observed paradigm. As I did, I realized I had not considered the fourth and final defining subject of Genesis 1-2, that of sex.

The inclusion of course revealed how the idolatry of choice, while powerful, is energized by the prior and more powerful idolatry of sex outside of marriage. The conflict between “pro-choice” and “pro-life,” in the language of the abortion debate today, only exists because of a reversal of the order of creation, when choice is used to destroy life. Thus, the full paradigm is:

God → Life → Choice → Sex.

The self-defining terms of “pro-life” and “pro-choice” are thus in the middle of this paradigm, and in a graphic sense which identifies the locus of the conflict:

God → Life →// ← Choice ← Sex.

In other words, it is fidelity to God that defines life, and should properly motivate the political language of “pro-life.” And it is sex as sexual promiscuity that in truth defines the idolatry of choice, and thus motivates the political language of “pro-choice.” “Pro-life” thus reflects the order of creation, and “pro-choice” reflects the reversal. A false dichotomy is set up: sex/choice versus God/life, made possible because of how abortion-rights advocates yield to the reversal:

Sex → Choice → Life →/ God.

Sex outside of marriage employs atomistic choice to destroy the life of the unborn in the act of human abortion, and in an affront against God – the Creator of life, choice and sex.

In other words, abortion justifies sexual promiscuity and infidelity, and as such it is the ramrod of male chauvinism where the man who gets the woman pregnant outside of marriage is able to take off and leave her to face the pregnancy alone. When statistical factors are taken into account, this means that some 95 percent of abortions occur in a relationship where the woman is not married to the father, and some 4 percent where the husband is prone to divorcing her – thus equaling 99 percent male chauvinism. Is this a woman’s right, dignity or freedom?

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“Respectable” Prophets in the Public Square: The Naked Isaiah and the Yoked Jeremiah

In the Sacred Assemblies for the Unborn (SAU), the pursuit is for mercy and justice for women and their unborn equally, in the face of great male irresponsibility and chauvinism.

There is the need for Christians of all socio-economic positions to be involved. And for those who have higher educations and income, and for whom “respectability” in the social order might cause them to hold back, let’s consider Isaiah and Jeremiah.

Isaiah lived prior to and after the Assyrian exile of 721 B.C., where northern Israel was swallowed up, leaving only the southern Judahite lands, including Jerusalem, intact until 586 B.C. Isaiah was a scholar and he wrote the most beautiful Hebrew poetry in history, and had access to the royal court. He had his “social standing.” Yet, he warned northern Israel of the coming Assyrian exile, and later warned Judah of the coming Babylonian exile — for the idolatry of sorcery, sacred prostitution and child sacrifice. He was radical enough to obey Yahweh in his methodologies.

The short chapter of Isaiah 20 shows how Yahweh called him to walk naked for three years in Jerusalem. Assyria will carry away Egypt and Moab “stripped and barefoot .. with buttocks bared” just as they had done earlier with Israel. Can “respectable” Christians thus refuse the prophetic civility of the SAU and Jeremiah 19 Liturgy?

Jeremiah was a highly educated priest who had access to the royal court, and thus, a “respectable” position if he wanted it. But he was faithful in prophesying against idolatry, sorcery, sacred prostitution and child sacrifice, and made many enemies among his peer leaders. He acted out many of his prophetic words at the behest of Yahweh.

In chapter 27, Jeremiah is called by Yahweh to “make a yoke out of straps and crossbars and put it on your neck.” He then walks about Jerusalem wearing it, and prophesies that Judah and neighboring pagan nations will have to submit to the yoke of Babylonian king Nebuchadnezzar in judgment for their sins.

In chapter 29, the false Hebrew prophet Hananiah grabs the yoke off Jeremiah, breaks it, and proclaims a reversal of fortunes for Judah against Nebuchadnezzar within two years. Jeremiah says essentially that time will tell who is right, and walks away. Shortly thereafter, Yahweh has him prophesy against Hananiah’s falsehood, and Hananiah dies seven months later.

Can “respectable” Christians thus refuse the prophetic civility of the SAU and Jeremiah 19 Liturgy? This liturgy is also rooted in another one of Jeremiah’s public prophecies.

The "Woman-Rights" Spokesperson Did Not Dispute the Issue of Rape and Incest ...

In 1996, I addressed a group of public high school students in the town where we then lived, and where my second eldest son attended. The school was sponsoring an “in service” day where outside speakers would come to address various issues for tenth graders. A dialogue was set up with me and a woman representing a “women’s rights” educational and political organization in Hartford, Connecticut. We addressed two separate sessions on the general topic of abortion, one of which my son attended.

Questions were elicited from the students, and in the first session, the issue of rape and incest was raised. Given the brevity of time, I gave a short synopsis of my rationale, but also shared the stories of the women at UMASS and on WGAN (see my four blogs from October, 2010).

The resonance among the students was deep, but even more so, the feminist representing the women’s rights group did not try to dispute me. Instead she gave compliment, stating how hard it was for her to follow up after such an “eloquent and moving” answer. During the second session, her presentation of abortion-rights was muted, and much less confident than her presentation in the first session. And during the Q & A period in the second session, she deferred to me repeatedly.

I treated her graciously from the outset, and in the first session before the rape and incest question was brought up, I rigorously challenged some of her assertions, especially the rhetoric of calling pro-life people “anti-choice” and “anti-women,” as well as erroneous data. I noted how none of my language involved such an accusatory nature toward abortion-rights partisans, and she responded well. Love, a sound mind and spiritual power is the biblical balance we need in all matters. We either tackle the tough issues head-on, or we get tackled by them in our evasive maneuvers.

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Amendment:

On a related track, in my second Mars Hill Forum with Rev. Katherine Hancock Ragsdale, president of the Religious Coalition for Abortion Rights (RCAR), I did something I had never done before, as later I also did with Ann Stone of Republicans for Choice in our forum at Dartmouth.

I addressed the issue of rape and incest in my opening comments, not waiting to respond to someone’s question. In both cases, neither Ragsdale, Stone nor any of the audience raised the issue in their responses to me. In other words, by taking the intellectual, moral and spiritual offensive on this question, we can see the opposition arguments silenced, and our position is greatly strengthened from which to lobby for the legal protection of the unborn. The risk-taking nature of the power to love hard questions is our gift from God in the order of creation and in reversing the reversal.

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