Abortion, the Bible, and Us: On Personhood

Photograph of an angry bull in a pasture. It's not a goring ox like the laws mention but hey, close enough.

(Photo Wikimedia Creative Commons 2.0)

As I mentioned in a previous post, one of the major ethical questions surrounding abortion is that of when life begins, or better, when a developing embryo or fetus acquires the right to life. In the last one, I showed how biblical descriptions of pregnancy—metaphorical though they are—tend to frame the formation of a new child as a process rather than an instantaneous event. But does this processual understanding extend to ethical considerations and the right to life as well?

There aren’t many relevant biblical texts to consult—again, there’s no biblical passage that comes right out with a direct statement on fetal personhood—but what little evidence there is suggests that it was also treated as something that develops over time.

 For this discussion, I’m indebted to the work of Tracy Lemos in her recent book Violence and Personhood in Ancient Israel and Comparative Contexts. Lemos examines the practice and punishment of violence as it relates to the social status of individuals. In particular, who is viewed as a person and who a non-person? To her, being recognized as a person in society means being recognized “as having value, not as a commodity but as a participant in social relations.” Importantly for this post, personhood is characterized by “the attribution of agency, rights, or protections—particularly protection from physical harm—and/or by public rituals that convey or reaffirm that individual’s value.” In other words, being seen as a person protects an individual from violence or makes violence a more serious crime.

Lemos conducts a holistic study, dealing in turn with personhood as it relates to gender, nationality, enslavement, and childhood. You can (and should!) read the whole chapter on children, “Visiting the Iniquity of the Father on the Son: Violence and the Personhood of Children in Ancient Israel,” at her academia.edu page. It deals mostly with children post birth, but discusses also the status of fetuses in Israelite society.

We can learn a lot by comparing legal penalties for violent acts, because these often link life and health directly with monetary payments and/or other punishments. The most relevant law relating to fetal personhood (and the most relevant biblical text, period) comes from a legal collection in Exodus 20–23 known as the Covenant Collection. Before we get to it , though, I’ll illustrate the point with reference to a few other laws. Since the Bible contains multiple collections of laws that don’t always agree with one another, choosing laws from the same collection has benefits as well as drawbacks. It allows us to expect some degree of internal consistency that does not characterize the Bible as a whole, but it also limits the discussion to just one of the Bible’s many and varied voices. We also know that the Covenant collection was not wholly a native Israelite creation, since it seems to have been based in large part upon the Code of Hammurabi for its overall structure and the content of many of its laws (there is A good book by my dissertation advisor on just that topic!).

Personhood and the Valuation of Life in the Covenant Collection

The Covenant Collection contains laws on a lot of different topics. It’s far from comprehensive, but its laws touch on altars, sacrifice, property, enslavement, liability, legal procedure, sexuality, and violence.

Often it presents illuminating variations on a legal scenario. Consider the Ten Commandments’ prohibition against murder:

You shall not murder. (Exodus 20:13)

Sweet. Good start. But what does that mean in practice. A little bit later, we get more legal detail:

Someone who strikes a man so that he dies shall be put to death. (Exodus 21:12)

This sets the standard penalty for taking a life as losing your own, according to the talionic principle (that is, an eye for an eye, etc.). But this doesn’t apply to every case. What if the killing wasn’t on purpose? What if it was in self defense or defense of property?

In the case of accidental manslaughter, the killer can flee to a place of refuge to avoid punishment (Ex. 21:13). Similarly, if someone beats a thief to death during a break-in, they incur no guilt or legal penalty (Ex. 22:1).

Punishments can also vary based on the identity of the victim. So, for example, if someone killed a person they had enslaved. If the victim died immediately from the wounds, the law prescribes that נקום ינקם “it shall be punished” (Ex. 21:20). This is different wording from the original law regarding murder: מות יומת “he shall be put to death.” Though of course punishment could be imagined to refer to the death penalty, that does not seem to be the intent. If the purpose of writing a separate law for the murder of enslaved people was to underscore that the punishment was identical to the murder of a free citizen, why choose a looser and more general word? More likely, laws concerning violence against enslaved people were written separately because they were conceived of differently.

The difference is even clearer when the enslaved person lives a few days after the attack, and then dies. In this case, the attacker incurs no penalty, because כספו הוא “he (the enslaved) was his (the enslaver’s) property” (Ex. 21:21).

Thus, it seems that an individual’s personhood could be mitigated by their enslavement, and that a crime against an enslaved person was not viewed in the same way as a crime against a free citizen.

This distinction between the free and the enslaved appears throughout the Covenant Collection. For example, the owner of a habitually aggressive ox that gores a free person—no matter their age or gender—is put to death (Ex. 21:29–31). If that same ox, with the same negligent owner, kills someone who has been enslaved, the owner must only pay a fine to the victim’s owner—remuneration for lost property rather than for lost life )Ex. 21:32).

In the same way, the law of “an eye for an eye” only applies to free citizens. If an enslaver puts out the eye or tooth of someone they enslave, they are not subject to the loss of their own eyes or teeth. Rather, they have to free their victim from slavery. 

This case is especially striking. In the case of free-on-free violence, the appropriate restitution for one harm is an equivalent harm enacted upon the perpetrator. In free-on-enslaved violence, the injustice is rectified by conveying a benefit upon—or, more accurately, removing an oppression from—the victim.

While enslaved people were not treated as complete non-persons in all biblical texts, as Lemos argues elsewhere, it is clear from these laws and others that they were not treated as persons in the same way or as consistently as free people. Their position allowed for mitigation of their rights in ways that were truly brutal and dehumanizing. Morally abhorrent as they are, these laws illustrate the principle that levels of personhood can be embedded in legal discourse, particularly in the permissibility and punishment of violence. This sets us up for the main event:

The Case of Collateral Miscarriage

After all that intro, here it is at last: the closest thing we get to a biblical pronouncement on fetal personhood, in the context of a law about collateral damage during a brawl.

“When people who are fighting injure a pregnant woman so that there is a miscarriage and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine.

If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (Exodus 21:22–25)

Here we have two variations on a common scenario: in both cases the brawl causes the end of a pregnancy, but the penalties differ based on whether “harm” (Hebrew אסון) occurs or not. There has been some debate over the nature of this harm and who experiences it, but the general consensus is that the pregnancy is terminated and the fetus is lost, and the harm that may or may not occur refers to the mother. In this case, the first variation imagines a situation where the blow causes a miscarriage but the woman remains healthy. The second a scenario in which the pregnant woman experiences physical harm beyond the loss of her pregnancy.

A minority position holds that the additional harm is done to the infant—that is, that the scenario describes an early birth rather than a miscarriage, and the additional penalties result from further injury to the child. The earliest Greek translation actually misunderstood the term for “harm” entirely and translated it “if the fetus is not fully formed” vs. “if the fetus is fully formed.” Due to our better understanding of biblical Hebrew and our knowledge of Hammurabi, however, most scholars find the first interpretation much more likely. 

In the first scenario, where the pregnancy is terminated but the woman is unhurt, the penalty characterizes it as a property crime against the father. As such, it does not seem that the fetus was understood to be a person with social and legal standing of its own. Further, it characterizes the loss of the potential child primarily as a loss of the father rather than the expectant mother.

As Lemos writes, “In Exod 21:22–5, a hierarchy is thus established in which a fetus has much lower standing than its mother, harms against whom require talionic pun­ishment rather than monetary compensation, but who also has less legal standing than her husband.19 If we examine these different sections of Exodus 21 together, then, children’s standing appears to be higher than that of either slaves or fetuses… While slaves are offered some legal protections, the fetus occupies an extremely subordinated position and has no apparent legal standing separate from its father.” Fellow biblical scholar Naomi Steinberg states it plainly: “The fetus is a nonperson.””

This is scant evidence, and perhaps it is unwarranted to discover a universal cultural belief about fetal non-personhood in one group of laws among several within a literary anthology of many voices and perspectives, but this conclusion does align with the processual view of fetal development implied in pregnancy texts and with the subordination of fetal and maternal rights under the father in texts I will discuss later.

And again, there is the question for those who see opposition to abortion as an eternal, God-given absolute: if an omniscient deity were using a sacred text to communicate abhorrence for abortion, why would this be all we get?

Scholar Strike 3: Race in Biblical Interpretation

As I wrote in my post yesterday, race was not a concept that influenced the composition of biblical texts.

It has, however, deeply influenced their reception and use. Over the past 500 years it has been inextricably bound up in the practice of biblical translation, interpretation, and application. Biblical scholarship—both historical and theological—has been conducted in a world where racial concepts, hierarchies, and structures permeate life at every level, and biblical studies have not been immune to their influence.

The vast majority of biblical scholarship in these centuries was conducted by white, Christian men who sat at or near the top of racial, gender, religious, and class hierarchies, and their interpretations inevitably bear the marks of those social positions. Many read race into these texts where it was not originally present, and the character of these readings have skewed white supremacist (in the broader sense)—not universally and not always explicitly, but often enough and strongly enough to be undeniable.

A number of scholars—particularly scholars of color—are working to untangle the white supremacy that has become so deeply enmeshed with biblical interpretation, and I admit freely that this is not my area of expertise. So I’ll offer one illustration and then point to some work by other scholars that will provide a more comprehensive and detailed representation of the issues.

Early in my graduate studies, I sat in on a seminar session on Old Testament ethics. The professor was white, and if I remember correctly, all of the students were too. The topic of this particular session was slavery in the Old Testament.

In a pre-circulated paper, the professor had outlined his thoughts on the nature and ethics of the topic. To be fair, the limited Hebrew vocabulary for slaves and slavery (עבד [masculine], אמה and שפחה [feminine]) do refer to many different social arrangements and situations with what seem to be quite variable parameters. They apply to Israelites sold into debt bondage (e.g., Leviticus 25:44) and enslaved prisoners of war (Deuteronomy 10:16, 20:10–15), as well as high-ranking officials in the royal court (Exodus 10:7, 1 Samuel 22:14), and there is legitimate work to be done exploring the details and particulars of individual instances and the essential commonalities that bind them together.

The seminar paper, however, admitted to little of the diversity or ambiguity, and generally presented Israelite practices in the most sympathetic light possible. In fact, the professor suggested that the relevant Hebrew words should be translated “servant” in every case, and followed that practice throughout the paper. This was done in part to distance the practices of biblical servitude from modern race-based chattel slavery. While perhaps imperfect, biblical slavery was cast as a basically ethical arrangement, nothing like the fundamentally corrupt trans-Atlantic system.

One section of the paper was titled “The Advantages of Servanthood,” and it defended the pleasant ness and even desirability of Israelite servitude with a quote from a Chinese domestic servant in early 20th-century San Francisco:

I don’t know where being a servant came into disrepute. It is the refuge of a philosopher, the food of the lazy, and, properly carried out, it is a position of power, even of love…. A good servant has absolute security, not because of his master’s kindness, but because of habit and indolence…. My master will defend me, protect me. You have to work and worry. I work less and worry less.

As the professor admitted, though, this quote came from a work of fiction. It was spoken by the character Lee in John Steinbeck’s novel East of Eden. In effect, one white man was defending ancient servitude with words that another white man had placed in the mouth of a fictional non-white servant to defend modern servitude.

I should not have to point out that this is not legitimate evidence. There is no necessary connection between a real experience of subordination and the idea of it that exists in the master’s imagination.

Consider a rosy depiction from another era, in which servants are described as

hapy, contented…Lightly tasked, well clothed, well fed—far better than the free laborers of any country in the world,… their lives and persons protected by the law, all their sufferings alleviated by the kindest and most interested care..

Here we know that reality bore no resemblance to the pretty picture. The servants, in this case, were enslaved Black Americans, and the speaker was James Henry Hammond, who said this on the floor of the House of Representatives in 1836, as part of a two-hour speech defending race-based chattel slavery as a positive social good.

First-person narratives of race-based chattel slavery in the United States, of course, attest overwhelmingly to its brutality and inhumanity. The disconnect between reality and representations by Hammond and other  apologists could not be starker. Perhaps this should not be surprising, since most of them had a vested financial interest in its continuation, and thus in its moral justifiability.

Likewise, John Steinbeck grew up in a household with maids and servants, and so had experienced servitude largely from the master’s point of view. I do not know the professor’s history or situation, but in his treatment of the topic of Israelite slavery, he showed a naive and uncritical willingness to accept the master’s point of view that was undoubtedly conditioned by his position at the top of a racial hierarchy in a society where that position aligned him more often with masters than with servants.

Just as he accepted Steinbeck’s portrayal of servanthood as ethical a desirable, so he accepted and propagated an ethical and desirable framing of biblical servitude.

In this way, I don’t think he is unique. Sympathetic presentations of biblical slavery are common, even from those who would flatly condemn its counterpart in the last century. I don’t mean to condemn this particular professor as an especially bad actor, but rather to present this paper as a glaring example of a common interpretive orientation. All of us were born into this racial caste system, and our thinking and engagement with ideas and institutions have been shaped by aspects of our identity that we did not choose. As we grow and learn, however, we can gain a critical understanding of these received structures and work to change them.

It’s difficult to admit, but at the time of this seminar I wanted to believe this framing. I wanted to believe that biblical slavery was different in kind from all other kinds of slavery, because the Bible was different in kind from all other books. Unlearning this unconscious desire to gloss over the oppressive and unjust parts of the text required reading the work of scholars whose experience was informed by the other side of the arrangement—scholars whose family stories were of discrimination and oppression, whose ethics were formed in subjugated communities burning to live free. It took scholars who would not gloss over inconvenient facts in a rush to apologize for a broken and unjust system, even if it came from their sacred Scriptures.

Some slaves in biblical texts may have been treated well and prospered, but the laws regulating the practice also left ample room for abuse and degradation. Too often, the whiteness of academic biblical studies has obscured biblical slavery’s harsher realities and mischaracterized it as a gentle and humane social arrangement. This does a disservice to African American readers of the text, for whom the fundamental illegitimacy of forced labor is immediately apparent. This is one reason why it is necessary to broaden the engagement of historically underrepresented groups in academic biblical studies and to read and teach their insights alongside the work of white scholars.

Further Resources

This post covered just one small way in which white supremacy has influenced biblical interpretation. Its reach is not limited to issues of slavery, though. If you are interested in learning more, I would point you toward the following scholars, among other.

Dr. Wilda C. Gafney has made this short Scholar Strike video surveying the many faces of white supremacy in biblical interpretation. Go ahead and watch it right now:

She has also written two books, both of which are filled with interrogations of white supremacist readings and proposed alternatives. Go buy, Daughters of Miriam and Womanist Midrash.

In regard to specifically Christian uses of the Bible in support of racist policies and practices, I recommend Jemar Tisby’s must-read The Color of Compromise: The Truth about the American Church’s Complicity in Racism and the accompanying video series on Amazon Prime (linked on the book page).

See also Dr. Nyasha Junior’s Reimagining Hagar: Blackness and BibleIntroduction to Womanist Biblical Interpretation, and (with Jeremy Schipper) Black Samson: The Untold Story of an American Icon.

Please feel free to drop more resources in the comments!