Saturday, October 31, 2009

What the Bible Says About Abortion

Abortion, Attainder, and Corruption of Blood
A Juridical Analysis of Feticide and the Legal System
under the Mosaic Law
by
Kurt M. Simmons, J.D.


Note: A friend who recently had a tubal ectopic pregnancy, and whose life was at risk, was almost forced to chose between her life and the child's. Fortunately, that choice did not have to be made; the fetus was already dead. In responding to this crisis, I was impressed with the lack of real guidance about what the Bible says in such cases. Hence, I am republishing this book to help provide against this need.
I wrote this short book during law school to satisfy myself what the Bible taught about abortion. Abortion was a huge subject at the time, and rightly so. Many Christians were demonstrating at abortion clinics, trying to stop this abominable crime. Characteristically of lay people who speak of things in overly general and often emotionally charged terms, unaware of the niceties and precision of the law, there was a lot of talk about abortion being "murder." Yet, being a lawyer, I knew that this was not necessarily the case and so set about to find what the Bible really taught. The following are my conclusions. They will surprise some, but I believe I have handled the sacred text correctly.
In reviewing what I wrote 15 years ago, I find that the work is horribly amateurish and over burdened with "legalese" in an attempt to produce a "lawyerly" and authoritative work. My apologies. However, as it would be too much work to rewrite the book in "plain speak" I must release it to the world as is, hoping those who persevere through it will find some profit. Kurt Simmons, 2008
TABLE OF CONTENTS
Chapter One -
A Brief Account of Abortion and the Place of the Unborn in Anglo-American Law 1

Chapter Two -
Fetal Death and the Law in the Book of the Covenant 12

Chapter Three -
A Fetus was not a Life within the Law of Homicide until Born Alive 24

Chapter Four -
The Maturity of the Fetus and the Criminal Consequences Attached to its Destruction 40

Chapter Five -
Abortion, Attainder and Corruption of Blood 58

Chapter Six -
The Image of God and the Law of Homicide 81

Chapter Seven -
Circumstances Where the Life of the Unborn Was not Indemnified 94

Chapter Eight -
Canon Law, Common Law, and Roe Versus Wade 115


Chapter One
A BRIEF ACCOUNT OF ABORTION
AND THE PLACE OF THE UNBORN IN ANGLO-AMERICAN LAW

At a time in our nation's history when elective abortion has reached epidemic proportions it seemed good to attempt to give an account of what the Holy Scriptures say on the subject. Many fine works have been produced that take up the moral plea against abortion. This book will not attempt to improve upon those efforts. Instead, the present work will be confined to analyzing abortion more in terms of a legal or juridical perspective, in the sense of determining whether feticide and homicide were deemed the same thing in law and, if not, why not, and how the law then dealt with self-induced abortion.
More than merely academic, however, one could hope that discussion of this sort were entirely practical. Time was when judging the propriety of a law appeal might be had to the Bible. Writing in 1769, William Blackstone was able to say that "Christianity was part of the laws of England," and that "the preservation of Christianity, as a national religion, is, abstracted from it's own intrinsic truth, of the utmost consequence to the civil state." Even in the United States where Christianity commands no official recognition or favor, it was not until well into the present century that men would venture to publicly contradict its essential truths, and Americans could proudly boast that this was a "Christian nation." If those days are gone, they are not forgot. The need to restore Christianity to its proper place in our national institutions is felt more acutely each passing day. It makes a profound difference that the religious symbols seen across our land and which mark the graves of our forebears are Christian, and not Muslim, Hindu, Jewish, or Buddhist.
Law is the very foundation of society, built upon the customs, habits, and morals of a people. The liberty we have in Christ that the Jews did not enjoy under Moses is the difference between a child and an adult. A child requires constant tutelage in order to conform itself to the expectations of its parent and society; an adult operates within these bounds of his own volition and habit. The student in graduating from school is freed from the rigorous exercises heaped upon him in order to commit his lessons to memory; he is not free to abandon all he has been taught. Tailored for a nation of people, the law of Moses represents God's judgment regarding minimal acceptable standards of conduct for civil society. The practical utility of a juridical analysis of the law of Moses thus lays in its ability to provide Scriptural answers to questions that must otherwise haunt us - in providing a standard against which modern institutions and conventions may be measured. The New Testament is in no wise sufficient to this purpose taken alone. We may be able to deduce from the New Testament that elective abortion is wrong, but we cannot know if God deems it homicide and how it is to be punished. Without the Old Testament, at best we can only guess. The present work is undertaken with a view to taking the guess-work out of these questions. Before turning to the law of Moses, however, a short assay of Anglo-American law will be profitable.
According to Anglo-American tradition dating from at least the seventeenth century, feticide, the killing of a fetus, and homicide, the killing of a human being, were deemed distinct acts. Blackstone defined a human being for purposes of homicide as "a reasonable creature in being, and under the king's peace." (4 Blackstone, Commentaries 198.) However, an infant in ventre sa mere (within its mother's womb) was not deemed rational or, at least, not "in being" for purposes of homicide unless it was born alive.
"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder; but if the childe be born alive and dyeth of the potion, battery or other cause, this is murder; for in law it is accounted a reasonable creature, in forum natura, when it is born alive." 3 Coke, Institutes 50 (1648)
"Quickening" refers to the mother's ability to perceive the child's stirring within the womb, and generally occurs between the sixteenth and eighteenth week of pregnancy. Thus, at least as early as 1648 when Sir Edward Coke wrote, abortion was regarded as murder or homicide only if the child had quickened, been born alive, survived for a brief interval, and then perished in consequence of wounds inflicted while yet in its mother. But to cause an embryo to abort prior to the time when its mother was able to perceive its movement within her was no offense at common law at all. On the other hand, once the infant had quickened, then any act intended or likely to cause it to be still-born was a "great misprision", or misdemeanor.
Why "quickening" should have been seized upon as a criteria determining whether abortion was criminal has been the subject of considerable debate. In all likelihood it was a rule of convenience based upon considerations similar to those behind the rule assigning live-birth as the criteria for homicide. Coke states in the quotation above that from and after live-birth the child is counted "a reasonable creature, in forum natura," i.e., within the realm of actuality or being. In other words, although it cannot necessarily be shown to possess reason, an infant is deemed reasonable from birth as a matter of law and, therefore, may be the subject of homicide. That "reason" should figure in the definition is itself notable and, bears upon why the line is drawn at the end of gestation and not its beginning.
Reason, of course, is a faculty unique to man and is what distinguishes him from other life forms. In his work on animal and human reproduction, Aristotle, one of history's first true zoologists, identified three distinct stages in the gestational process of man: Vegetable, animal, and rational - the latter occurring shortly after birth. (History of animals, 7.3.583b; Generation of animals 2.3.736, 2.5.741.) Given the influence of Aristotle on medieval thought, it is not unreasonable to conclude his thinking played a role in development of the law of homicide and abortion. If so, in saying that the newborn infant is accounted a reasonable creature from and after live-birth, it would seem that the common law was attempting to define homicide according to a qualitative analysis of human life in terms similar to those propounded by Aristotle. That is, choosing a point where the human fetus more nearly approximated the rational than the animal, imparting to the infant at birth by legal fiction what in fact it may not necessarily possess. Viewed in this light, the requirement that an infant have "quickened" may reflect the law's judgment that the embryo have passed the "vegetable" stage and have assumed the "animal" before its destruction was deemed sufficiently serious to merit punishment.
That the law should be willing to attribute reason to an infant immediately after birth and not before may seem to some arbitrary. However, any time a line is endeavored to be drawn in circumstances where something shades imperceptibly into another an element of arbitrariness cannot be avoided. In the case of statutory rape, for example, the law holds a man to answer for having intercourse with a female below the age of majority on the ostensible basis that she lacks capacity to make mature and reasoned decisions until that age. Obviously, there is an element of arbitrariness in this. The average woman is possessed of nothing one day after her majority she did not have one day before. By the same token, different individuals mature at different rates. There are fifteen year old girls with greater sophistication than some twenty-year olds, and so forth. Yet, despite what may seem to some an arbitrary distinction, the basic policy is invariably sound. By and large the average female below majority is susceptible to the seduction of an older male. That upon her majority some may be as susceptible as before majority is no objection. At some point she must become responsible for herself. Thus the line needs be drawn somewhere, and majority has been deemed by society the suitable place to withdraw the law's extraordinary care.
In the case of infants, in electing to draw the line at live-birth the law seems to opt for the point where the threshold of reason begins, willing to attribute to the infant whatever it may be lacking on this score at birth. Thus, much as the law of statutory rape discounts a young girl's sophistication and ability to make reasoned decisions, though in fact she may very well possess these skills, the law of homicide attributes to the new born child reason it likely does not fully possess, and will punish its death as murder the same as an adult.
Of course, all do not find this analysis acceptable. The Vatican, for example, using a purely biological analysis, seizes upon conception as the threshold of human existence and therefore has decreed that the direct killing of an embryo or fetus is murder and cannot be sanctioned even to save the life of the mother. In other words, the Vatican acknowledges no qualitative difference between a one-week old embryo and its mother. Hence, viewing them both in purely biological terms, without allowing anything for the mother's emotional, intellectual, and spiritual faculties, the Catholic Church maintains that the equality of the two precludes either be sacrificed to save the other where only one can survive. Something approaching this has been adopted in several states which, while permitting the mother to abort at will until the third trimester, define human life for purposes of murder as beginning at conception where a third party acts to destroy it without the mother's consent. California, on the other hand, requires that the pregnancy have advanced beyond the embryonic stage. However, the overwhelming majority of American states still adhere to the common law definition set out by Lord Coke in the seventeenth century, and require that a child be born alive before its death will be deemed homicide.
This is not to suggest that abortion was or is deemed an indifferent act. Just because abortion is not considered to be homicide or murder does not preclude its punishment on other grounds. Thus, most states have had criminal abortion statutes on their books practically from the start. Justice Rehnquist in his dissenting opinion in Roe v. Wade noted that at the time of the court's opinion purporting to confer the right upon women to abort their offspring without interference from the father or the state, thirty-six states had enacted criminal abortion statutes dating from as early as 1821. Even apart from such statutes, of course, abortion of a quickened fetus had always been criminal as a matter of common law. Hence the overwhelming consensus is that abortion properly evokes criminal sanction despite the fact it is generally not deemed a form of homicide.
Other aspects of the law remaining to be considered are the civil remedies for injury to an unborn child. Historically the common law did not afford relief for injuries inflicted upon a child prior to the time it was born. The reluctance to permit actions of this sort was owing, at least in part, to evidentiary considerations about the trustworthiness of evidence offered to show a prenatal injury to an infant born months after the fact and, therefore, not available for inspection when the alleged injury occurred. How could it be known when the specific injury complained of was caused and by whom; might it not have resulted in consequence of some previous or subsequent event unconnected with the defendant? By and large these objections have fallen by the wayside, and most jurisdictions now permit recovery for prenatal injuries. Initially most states adopted a rule holding that the infant must have been "viable" at the time the injury occurred before recovery would be allowed. However, the majority of states now permit an action for damages based on acts or omissions resulting in injury to the child even before it was viable, but not prior to conception. That is, where the mother is exposed to some toxic substance causing a child subsequently conceived to be deformed, the right to recover will belong to the mother, not the child; for it had no existence in law or fact at the time of the tortious conduct.
Last, note should be made of actions for wrongful death. Virtually every state has some form of wrongful death statute permitting recovery for loss of support, companionship, and services of the deceased. There is a split of authority, however, as to whether an action will lie for the wrongful death of an unborn child or fetus; i.e., miscarriage and still birth. Some states allow an action if the child was viable at the time of the injury. Other states foreclose recovery on the basis that the child is not a "person" within the meaning of the enabling statute. To compensate for this, these latter jurisdictions generally permit recovery by the mother for whatever physical and emotional injuries attend the miscarriage or still birth.
With this brief overview of Anglo-American precedents spelled out, we are ready to turn to the Mosaic law for what light the scriptures may throw upon some of these questions.


CHAPTER TWO
FETAL DEATH AND THE LAW IN THE BOOK OF THE COVENANT

If the Bible spoke explicitly to the subject of abortion there should probably be no occasion to undertake this work as the issue would then be an open book. As it is, however, the answers lay hidden within difficult passages, obscured by the nuances of a foreign tongue. Hence, it is not without considerable effort that an account of what God says, or seems to say, relative to the matter can be produced. We begin our discussion with the closest text on point - Exodus 21:22-25:
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.
There is a good deal more to this passage than first meets the eye. In fact, it bears testimony to the difficulties posed by the passage that about one-half of this work will be devoted to drawing out all it has to say, and the other one-half devoted to placing the information in context and explaining its import.
Initially, it might be useful to note that this is one of three texts beginning with the phrase "if men strive." The others occur at Exodus 21:18-19, and Deuteronomy 2:11-12. Of these, the instant passage and that set out in Deuteronomy include a woman. The difference is that here the woman is a victim, whereas in Deuteronomy she one of the offending actors:
When men strive together one with another, and the wife of the one draweth near for to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets, then thou shalt cut off her hand, thine eye shall not pity her. Deuteronomy 25:11-12
The law does not normally punish men for rescuing the weak when they fall prey to an attacker. The probable reason the woman here is to be punished is because her husband, either expressly or by his conduct, has caused or consented to the fight such that her intervention on his behalf is unjustified in terms of defending the innocent and, rather, is deemed an act of aggression or attack in its own right. This is borne out by the prefatory phrase "if men strive together one with another." The Hebrew here is "yachad," and signifies unitedly. Hence, Amos asks "Can two walk together except they be agreed?" (cf., Ex.21:18-19.) In other words, this is some sort of mutual affray where the husband's culpability prevents the privilege of defense of others from accruing to the benefit of his wife. The reason her hand is to be cut off is that the law's provision that offenders be punished "life for life, eye for eye, tooth for tooth," cannot be applied where, as here, the sex of the offender prevents the law from exacting its due. Lacking the anatomy to permit like retribution, the offending member is treated of instead. More to the point, however, is the fact that if the woman in Exodus 21:22-25 were chargeable with the like conduct by intervening where she had no right we would expect that she, either alone or together with one or both of the men, would be punished for causing injury to the child. But as it stands, the woman in Exodus is an innocent victim and bystander.
Setting aside questions of the woman's culpability, a word or two about the basis of liability in the men is in order. The passage leaves little doubt that the injury to the woman or her child are unintentional. Yet the text speaks in terms of the guilty party paying "life for life, eye for eye, tooth for tooth." The explanation for this is found in the doctrines of "felony murder," "misdemeanor manslaughter," and "unlawful acts".
Stated briefly, these doctrines are shorthand for what is termed in law the mens rea - the criminal intent or requisite mental disposition of the accused at the time of the offense. Murder, for example, requires that there be a concurrence of the act producing death and malice aforethought - a state of mind evidencing a wanton or intentional disregard for the life of man. In the case of felony murder, this requirement will be satisfied where a death results in consequence of an inherently dangerous crime. The fact that the actor commits the crime in the face of an inherent risk of death to another evidences his wanton disregard for the life of his fellow man. To instance the case of burglary or nocturnal housebreaking, here the risk of death or serious bodily injury is so great in contemplation of law that where the act results in the death of the householder it will be murder, and this though it be unintentional. The difference between misdemeanor manslaughter and felony murder is that in felony murder the risk of death is sufficiently great to amount to malice in the accused, whereas in manslaughter the risk is not as clearly defined. In other words, the actor's culpability is measured in terms of the risk of death or serious injury and the offense denominated accordingly.
As applied to the present case, the injury to the woman and/or her child are the result of the actor's breach of the peace by an attack upon, or fight with, another man. Given that he has demonstrated a willingness to create an unreasonable risk of injury to another by the fight or attack, he will be held answerable for the unintentional consequences of his deliberate and unlawful acts. The formula of "life for life," also known as the lex talionis or law of like retribution, should probably be taken in this context as short hand for the general law of homicide, and not to indicate that the offense here will invariably amount to murder. The circumstances leading up to the incident and the quality of the offender's acts will determine whether the it will be murder or merely manslaughter should a death result.
This said, we are prepared to address matters more immediately at hand. Our discussion will begin by introducing a paraphrase of Exodus 21:22-25 by the first century Jewish historian, Flavious Josephus:
He that kicketh a woman with child, if the woman miscarry, shall be fined by the judges for having, by the destruction of the fruit of her womb, diminished the population, and a further sum shall be presented by him to the woman's husband. If she die of the blow, he also shall die, the law claiming as its due the sacrifice of life for life. Antiquities, bk.iv, ch.viii, sec.33 (Loeb ed.)
The first point we should observe is Josephus' basic assumption of fact that the child in Exodus 21:22-25 was still-born. Although understandable, this conclusion is neither warranted nor required by the original language. The word translated "depart" in the Authorized Version ("if men strive and hurt a woman with child so that her fruit depart") is from the Hebrew "yatsa", and means generally to go, come out, bring forth, break out, etc. It is a general term that has no special relationship to the act of child birth. It appears in such contexts as departure from a tent (Gen.31:33), the tabernacle (Lev.8:33), a house (II Sam.11:8), and from a camp (I Sam.13:17). However, when used in the context of child birth, yatsa can describe both live and still births. Thus, in Genesis 25:24-26 it is used to describe the live births of Jacob and Esau saying they "came out" of Rebbecah's womb. Similarly, in describing his own birth, Job proclaimed "Naked came I out of my mother's womb, and naked shall I return thither" (Job 1:21) and, "Wherefore then hast thou brought me forth out of the womb?" (Job 10:18; cf., Ecc.5:15.) The same word is used several times to describe the birth of the prophet Jeremiah (Jer.1:5; 20:18) and, in connection with the births of Pharez and Zarah, yatsa appears no less than three times. (Gen.38:27-30.)
In connection with still births, yatsa is used figuratively in reference to Miriam when she was stricken with leprosy: "Let her not be as one dead, of whom the flesh is half consumed when he cometh out of his mother's womb." (Num.12:12.) It is even used in Deuteronomy 28:57 to describe delivery of an "afterbirth". Apart from the context of child birth, there is precedent for use the term as a colloquialism for death. For example, in Genesis 35:18, where Rachel's death is described, yatsa is used saying "And it came to pass, as her soul was in departing, (for she died)..." Similarly, in Ezekiel 26:18 yatsa is used to describe the fall and destruction of Tyre, referring to this as its "departure," which the context plainly analogizes with death. (Eze.26:20.) Similar usage of the verb "to depart" as a colloquialism signifying one's death may also be seen in Paul's letter to Timothy, saying the time of his "departure" was at hand and, in his letter to the Philippians, saying he had "a desire to depart and be with Christ." (II Tim.4:6; Phil.1:23.) Thus, yatsa is a term of broad application, used to describe live-births, still-births, and even afterbirths and an individual's demise. In all these cases, however, the definition assigned to the term is controlled by the context, signifying a miscarriage only as so permitted or required.
This is in contrast to the Hebrew words "nephel" and "shakol" which specifically signify an abortion or miscarriage. Brown, Driver, and Briggs, in their Hebrew-English lexicon define nephel as an untimely birth or an abortion. Thus in Psalm 58:8 we read: "As a snail which melteth, let every one of them pass away; like the untimely birth of a woman, that they may not see the sun." (See also Job 3:16 and Ecclesiastes 6:3, rendering nephel, "untimely birth".) On the other hand, shakol is defined as a cause of barrenness, or abortion in any female (Ex.23:26), animal (Gen.31:38; Job 21:10), or even a grape vine (Mal.3:11). Hence, in Hosea 9:14 we read: "Give them, O Lord, what wilt thou give? Give them a miscarrying womb and dry breasts." (See also II Kng.2:19-22 where the waters of Jericho are blamed for causing shakol i.e., barrenness and miscarriage.) Lastly, the third chapter of Job provides a nice contrast of the words yatsa and nephel where they are used alternatively to describe a live birth and a miscarriage.
Why died I not from the womb? Why did I not give up the ghost when I came out (yatsa) of the belly? For now should I have lain still and been quiet, I should have slept; then had I been at rest...Or as an hidden untimely birth (nephel) I had not been; as infants which never saw light. Job 3:11,12,16.
Hence, whereas yatsa is a term of general application and will signify a still-birth only as permitted or required by the context, shakol and nephel specifically signify an abortion or miscarriage. Now, if it was Moses' intention to set out the law under circumstances where the fetus is invariably born still, it seems more than likely that he would have clearly indicated as much by use of an unambiguous term. As it stands, however, his choice of words leaves the fate of the fetus completely in doubt. For all we can say the accident might result in either a live birth or miscarriage. In fact, this possibility was explicitly recognized by the translators of the New International Version who rendered the word yatsa, "premature birth", and set "or miscarriage" in the margin of Exodus 21:22. Thus, Josephus' assumption that the child was still-born does not necessarily hold up under scrutiny.
This places in issue Josephus' further assumption that the more severe penalties of "life for life, eye for eye, tooth for tooth" had no occasion to be applied to the child. Having assumed that the fetus was still-born and that no further mischief could come to it, Josephus concludes that this language refers to injuries in the mother.[1] If we discard the assumption that the child is born dead, however, then it seems clear that the text leaves room for the possibility of some additional harm to both the infant and its mother beyond the fact of its untimely birth. Of these the child seems the more likely object of the passage. This follows because the ambiguity created by use of the word yatsa directs our attention to the fate of the child; not the mother. The child comes forth from the womb; is it live or dead, is it maimed or whole? What would be the law in these several cases? That is what we want to know more than anything else; not the fate or the law relative to the mother. The law for the injury or death of an adult are set out in other places. (Ex.21:13-15; 28-30; Lev.24:20; Deut.19:21.) To repeat those lessons here simply does not impress us as the purpose of this passage. Thus, Josephus' position that the lex talionis would have applied to injuries incurred by the woman, while true, nevertheless seems to miss the mark by seizing upon a collateral issue, and failing to account for how the law would apply where the child is born alive.
With these perimeters in mind, it would seem that there are no less than five possible outcomes which might result from the accident. (1) The infant might be born alive without injury and sufficiently developed to survive outside the womb; (2) it might be born alive but crippled or maimed by its prenatal wounds. On the other hand, the child might also be born alive and thereafter expire owing to (3) its injuries or, because, (4) it was not sufficiently developed to enable it to survive. Lastly, (5) the child could be born still. Of these, premature, live birth where the child is sufficiently developed to survive and is not otherwise maimed or wounded seems to be the case most clearly calling for exaction of the fine or mulct. The interest the fine would vindicate under such circumstances would likely belong to the parents, as distinguished from the infant or state, and serve to indemnify them for the emotional stress and anxiety associated with nearly losing the child. Where the infant was born crippled or wounded, then, in addition to a pecuniary award to indemnify the parents for medical expenses (Ex.21:18,19), the law of retaliation would be evoked and the offender punished "wound for wound". In the event the child subsequently died, then, subject to an exception to be discussed in chapter four, the punishment would be "life for life".
That leaves the case of miscarriage. On this score Josephus holds that the offender was to be punished exclusively by fine. The most common objection to this result is that it makes the actor's punishment vary dramatically and unexplainably upon the fortuity of live birth. If the child is born still the offender pays a simple fine. But if the child is born alive only to subsequently die he is subject to a charge of murder, punishable with death. The apparent anomaly of punishing solely by fine the death of a fetus for conduct that would otherwise be murder were it born alive has led several commentators to conclude that the fine applied only where the child was born premature but otherwise sound and whole. If it was injured or maimed, then the language denominating "wound for wound" applied. If it was still born, however, then the punishment was "life for life." Although this interpretation is quite plausible, it is not without its difficulties. Foremost of these is the assumption that a child in utero is a "life" within the law of homicide. For reasons set out more particularly in the subsequent chapter, however, this assumption seems untenable.


CHAPTER THREE
A FETUS IS NOT A LIFE WITHIN THE LAW OF HOMICIDE UNTIL IT IS BORN ALIVE

The threshold issue in determining whether the law of homicide would be applicable in the case of the death of a fetus depends upon the definition of the term "life" in the phrase "life for life." Yet Exodus 21:22-25 states only that life was to go for life without actually specifying what that life consists of or how it was to be identified - whether it belongs solely to those born alive or is shared by a fetus. Thus we turn to the Hebrew. The Hebrew word translated "life" in Exodus 21:23 is "nephesh". It is derived from the Hebrew "nephash", a word stem meaning "to breath", and signifies that which breaths, the breathing creature or being, the soul, the inner being. The Authorized Version, in Numbers 35:15 and Joshua 20:3, in the context of the law of manslaughter, renders the term "person". When coupled with the word "chay", which signifies that which is alive or living, nephesh is modified to read "a living soul, soul of life, etc." The term or phrase is applied alike to both men, animals, and fishes. Thus in Genesis 1:20,21 the literal Hebrew reads:
And God said, Let the waters swarm with the swarmers having a soul of life; and let the birds fly over the earth, on the face of the expanse of the heavens. And God created the great sea animals, and all that creeps, having a living soul, which swarmed the waters, according to its kind; and every bird with wing according to its kind. And God saw that it was good.
(See also v.30.) Of man's creation we find similar language: "And the Lord God formed man of the dust of the ground, and breathed into his nostrils the breath (Heb."neshamah") of life, and man became a living soul." (Gen.2:7.) Thus, both man and animal are referred to as either being or possessing a "living soul." By the same token, both possess the breath of life: "And they went in unto Noah into the ark, two and two of all flesh, wherein is the breath of life." (Gen. 7:15.) The word "breath" here in Hebrew is "ruwach," as distinguished from "neshamah" - which God breathed into the man. Ruwach is generally defined as either "breath" or "spirit," and corresponds with the Latin "anima" - the vital force which animates the flesh of man and beast. This "breath" in man and the animals is the same. "As one dieth, so dieth the other; yea, they have all one breath (ruwach); so that a man hath no preeminence above a beast." (Ecc.3:18-20; cf., Gen.6:17; 7:15.) Thus, it seems that there are two "breaths of life," as it were. There is the "ruwach of life," which is used in reference to the creation of man and beast; and there is the "neshamah of life," apparently given only to man. If this is correct, then God's breathing the neshamah into the nostrils of our first ancestor would seem to be what differentiates man from beast, and permits him to reason, and participate in the divine image and nature (e.g., demonstrate the fruits of the spirit; Gal. 5:16-26). And this is borne out by Job: "But there is a spirit (ruwach) in man; and the inspiration (neshamah) of the almighty giveth them understanding." (Job 32:8; cf., 27:3,4; 33:4; 34:14.) In Proverbs 20:27 neshamah is used to describe the spirit or inner light of man: "The spirit of man is the candle of the Lord, searching all the inward parts of the belly." (Compare also Gen.7:15, with 7:21-22 where, at the time of the flood, all flesh in which there was the ruwach of life went into the ark, and those that did not perished, together with "...every man; all in whose nostrils was the neshamah of life.")
The sum of what has been said is that, contrary to popular usage, the soul is not the part of man that survives the grave. Instead, what survives death is man's spirit. (Lk.23:46; I Cor.5:5; Heb.12:23.) The soul or nephesh, on the other hand, refers to men and animals as self-contained, living, breathing, corporeal beings. There will be occasion to speak more of this latter, but for now it is sufficient to note the identity of the soul with man's life and breath. The use of mankind's breath to define his earthly existence follows from the fact that it marks the beginning and end of his physical life as an independent being or person. Prior to taking his first breath, the life of an infant is inseparably joined to its mother. If she dies, it dies. The day it draws its first breath marks the day it becomes self-contained, breathing creature or soul after the likeness of Adam. The unborn child requires oxygen to live and grow, of course, but it acquires this through an exchange of gases in the placenta between its blood and that of the mother. Obviously, this is not respiration in the usual sense of the term and in no way conforms to Job's description of the neshamah of God in his nostrils. (Id., 27:3,4.) Hence, given this identity of the soul with a breathing being, it is hard to resist the conclusion that the unborn do not come within the narrow, Biblical definition of a "soul" or "life", at least for purposes of homicide. That we interpret the scriptures correctly on this score is corroborated by Philo.
But observe that the law also banishes from the sacred precincts all pregnant animals and does not permit them to be sacrificed until they have delivered, thus counting what is still in the depths of the womb as on the same footing as what has already been brought to the birth, not because creatures not yet advanced into the light rank equally with the others, but by implication to restrain the license of those whose way is to bring everything to disorder. For if the life which is still growing like a plant and reckoned as part of the parent which carries it and now is at one with it, but in the course of months will be severed from the common organism, is, in the hope that it will become a living animal, safeguarded by the invulnerability of the mother, to prevent the occurrence of the above said defilement, how much more is this the case with the creatures already brought to the birth and endued with a body and soul of their own? De Virtutibus xvi, sec.137-139 (Loeb ed.)
Philo is here discussing the prohibition of Leviticus 22:28 against sacrificing the mother and offspring in the same day. From this prohibition he infers that pregnant animals were also exempt from sacrifice. Whether this was the case or not will be discussed at length in a different context. (See p.-, below.) What is of interest to us for the present is his perception that the unborn are on the same footing with the parent, "not because creatures not yet advanced into the light rank equally with the others..." Rather, the child in the womb is protected by the "invulnerability of the mother" and is reckoned "part of" and "one with" its parent. Mother and child are a "common organism", so that the fetus is on equal footing with those born alive, not in its own right, but by association with its mother. Hence infants in ventre sa mere are a living appendage of the mother that carry a hope of becoming "a living animal...brought to the birth and endued with a body and soul of their own". In other words, until it is born alive, the fetus shares in the life and soul of its mother. Once born, it is a life and soul of its own. [2]/
Another line of passages exists that corroborates what has been observed regarding a fetus not being a life within the law of homicide. Regarding the crime of murder, Exodus 21:12 says "He that smiteth a man so that he die, shall be surely put to death." (cf. Num.35:23.) The word "man" here is "iysh" and signifies principally the male, but is also used in reference to woman. Whenever iysh is encountered in the scriptures it is used solely in reference to children born alive. Thus in Genesis 4:1 it is written regarding the birth of Cain: "And Adam knew his wife; and she conceived, and bare Cain, and said, I have gotten a man from the Lord." (cf. Gen.4:23; 49:6; Lv.19:3.) This same point is shown in Leviticus where the lex talionis is repeated with a slight variation in its wording:
And a man, when he strikes the life from any man, he shall surely be put to death. And he who smites an animal to death shall make it good, body for body. And when a man causes a blemish in his neighbor, as he has done, so it shall be done to him; break for break, eye for eye, tooth for tooth. As he has caused a blemish in man, so it shall be done to him. And he who smites an animal to death shall repay it; and he who smites a man to death shall be put to death. One judgment shall be for you whether an alien or a native; for I am Jehovah your God Leviticus 24:17-21 [HIB]
In addition to the word iysh which we encountered regarding murder in Exodus 21:12, the text above uses the term "adam", i.e. a human being. Thus, the passage read literally says "a man (iysh), when he strikes the life from any human being (adam), he shall surely be put to death." As it happens, with the exception of our first ancestor who wore "Adam" as a proper name and was created, not born, adam is used only to describe one that has been born alive. Thus the book of Job asks "Art thou the first man that was born?" (Job 15:7.) And: "Man that is born of woman is of few days and full of trouble." (Job 14:1; cf.5:7.) References to a child in the womb as a man simply do not occur.
To sum up what has been said so far, we have seen that "nephesh" is translated life, soul, and person, and signifies a living breathing being that is self-contained. Other terms used to describe a victim of homicide similarly refer only those born alive. It would thus seem impossible to sustain the proposition that a fetus is a human being, soul, or life for purposes of the lex talionis. However, before concluding this line of inquiry, it may be profitable to examine another line of scriptures that repeats these lessons from a slightly different perspective.
The necessity of live birth is central in Old Testament scriptures in attaining the status of "man" and a member of the race or mankind. Until a child is born and advances into the light it was regarded as having hardly existed. Thus Job says "Why died I not from the womb? Why did I not give up the ghost when I came out of the belly? Why did the knees prevent me? Or why the breasts that I should suck? For now should I have lain still and been quiet, I should have slept; then had I been at rest...Or as an hidden untimely birth I had not been; as infants which never saw light." (Job 3:11-13,16; cf.10:18,19.) Solomon makes a similar statement: "Wherefore I praised the dead which are already dead more than the living which are yet alive. Yea, better is he than both they, which hath not yet been, who hath not seen the evil work that is done under the sun." (Ecc.4:2,3.) These sentiments, with some addition, are repeated again by Job in the following words:
Thine hands have made me and fashioned me together round about; yet thou dost destroy me. Remember, I beseech thee, that thou hast made me as the clay; and wilt thou bring me into dust again? Hast thou not poured me out as milk, and curdled me like cheese? Thou hast clothed me with skin and flesh, and hast fenced me with bones and sinews. Thou hast granted me life and favor, and thy visitation hath preserved my spirit...Wherefore then hast thou brought me forth out of the womb? Oh that I had given up the ghost, and no eye had seen me! I should have been as though I had not been; I should have been carried from the womb to the grave. Job 10:8-12;18,19
Job thus describes the formative stages of life in the womb as a sort of twilight between existence and nonexistence. As in the other verses quoted immediately above, Job likens miscarriage or failure to survive birth as having possessed no existence for purposes of life under the sun. In other words, Jewish thought clearly placed birth as the threshold of human existence. Not in the sense of denying the obvious fact that a fetus is alive in its mother prior to birth, but in the sense that it has no practical, independent existence until this time. Thus the repeat occurrence of the phrase in reference to the unborn to the effect such "have not yet been." The like phrase and usage is also found in Jewish literature during the intertestamental period in comparing those who have attained fame with those who live out their lives in obscurity, again making clear that birth was deemed the critical inquiry in attaining one's place in the race:
There be of them that have left a name behind them, that their praises might be reported. And some there be, which have no memorial; who are perished, as though they had never been; and are become as though they had never been born; and their children after them. Ecclesiasticus 44:9
Philo, in speaking of infanticide, also states that birth is the threshold of the life of human kind.
And therefore infanticide undoubtedly is murder, since the displeasure of the law is not concerned with ages but with a breach of faith to the race. Though indeed, if age had to be taken into consideration, infanticide to my mind gives a greater cause for indignation, for in the case of adults quarrels and differences supply any number of reasonable pretexts, but with mere babes, who have just passed into the light and the life of human kind, not even a false charge can be brought against such absolute innocence. De Specialibus Legibus III, sec.119 (Loeb ed.)
Last, Solomon makes similar remarks when he compares the life of man with the still-born child. In this case it is explicitly stated that the one "that has been", meaning the one that has been born and lived to see the sun, is known as "man" (adam); but the untimely birth is consigned to obscurity and darkness:
If a man fathers an hundred (children), and lives many years, and the days of his years are many, and his soul is not satisfied from the good, and also there is no burial for him; I say, a miscarriage is better than he. For with vanity he enters and in darkness he goes and in darkness his name shall be covered. Also the sun he has not seen and has not known; this (one) has more rest than that (one). Yea, though he lives a thousand years twice, yet hath he seen no good; do not all go to one place?..That which has been already was called its name, and it is known that he (is) man; and he is not able to contend with him that is stronger than he. For there are many things that increase vanity, and what is the advantage to man? For who knows what is good for man in this life, the number of the days of this vain life? Even he makes them like the shadow. For who can tell a man what shall be after him under the sun? Ecclesiastes 6:3-6,10-12 (HIB)
This passage demonstrates nicely the distinction between one born alive and the aborted or still born child. The one born alive is referred to as "man," and his existence during his days under the sun is termed "this life." The miscarried child, however, has no part in "this life" - he has not seen the evil under the sun. Therefore, speaking with a view to the perceived futility of "this life", Solomon deems the still born child the luckier of the two.
The word life here is "chay," the noun form of the present participle used to modify soul in the phrase living soul. Job used the same term in the passage cited earlier saying that God had granted him favor and life, and his providence preserved his spirit. (Job 10:12.) Having brought him into the world, Job thus asks why God should now purpose to kill him, concluding that if this were the case it were better that he had not been born. Hence, like Solomon, Job too appears to say that life begins at birth for purposes of defining mankind.
In fine, there is adequate room to argue from the scriptures that a fetus simply is not joined in the company of those who are deemed living souls. The untimely birth has no part in anything under the sun. It has neither seen nor known; nor has it been seen or known. Its very existence is obscure and evanescent; its name hidden in darkness, known only to God. Unless and until it is born alive, it "hath not yet been," and is not acknowledged as a person or human being. It would thus appear that the position of some that the death of a fetus was punishable as homicide is without evidence or support. Hence, Josephus' contention that a miscarriage was punishable solely by fine thus far seems sound.
On a somewhat different note, a final objection that we may do well to notice at this point is the assumption that Exodus 21:22-15 deals only with a fetal death that is the result of unintentional conduct - as if the result might be different were the death intentionally induced. This eventuality is intimated by Wenham (Queen's University, Belfast) in his work on law and the legal system in the Old Testament:
One law (Ex.21:22-25) specifically deals with the death of a foetus as a result of a brawl. Close parallels to this rule are known in cuneiform law (LH 209-14; HL 17: MAL A 21, 50-2) but the interpretation of the biblical law is highly complex. Three things are clear, however, in the present law. First, the miscarriage and the injury to the woman were caused accidentally, a by-product of a quarrel between two men. Secondly, this suggests that the talion formula "life for life...stripe for stripe" which refers to the woman's injury should be regarded as a formula insisting on a punishment proportionate to the injury, not necessarily literal retribution (cf. verses 26-27). "Life for life" only applies in cases of premeditated killing. Thirdly, the loss of the foetus is compensated for by the payment of damages. Biblical law therefore does not deal with the case of deliberately induced abortion. On the basis of certain passages in Job and the Psalms it seems likely that the child in the womb was regarded as a human being, under the protection of its Creator (Jb.10:8-12; Pss.51:5f.;139:13-16; cf. Lk.1:15,44), and that Old Testament writers would have shared the abhorrence of the Assyrians at artificially induced abortion. Law, morality and the Bible, pp.33,34; Intervarsity Press, (1978)
Why Wenham, who's construction follows closely Josephus', should assume that "life for life" applies only to the case of premeditated killing is not clear. The case set out in Exodus 21:28-33, where a death results from an ox with a known dangerous propensity to gore, was potentially punished capitally (v.29), and makes clear that even an unintentional death may have amounted to murder - just as it might under Anglo-American law where the actor is guilty of wanton disregard for another's life. More important, however, is Wenham's intimation that intent may somehow change the result. On this score it should be noted that the lex talionis is not predicated on the presence or absence of intent - at least as a threshold inquiry. Rather, the talion formula turns upon the loss of life, limb, or member in one born alive. Once this is shown, then and only then will the law proceed to inquire into the thoughts and intents of the heart, and then only to determine the appropriate charge. Therefore, to the extent that Exodus 21:22-25 forecloses the possibility that fetal death was treated as homicide absent live birth (a conclusion apparently shared by Wenham), the passage does plainly deal with the case of intentional abortion - if only to preclude a charge of murder or manslaughter. To the extent that the passage does not tell us how the Israelites were to treat of deliberate, self-induced abortion Wenham is, of course, correct. Before we reach that question, however, there is other ground to cross.


CHAPTER FOUR
THE MATURITY OF THE FETUS AND THE CRIMINAL CONSEQUENCES ATTACHED TO ITS DEATH

We have already had occasion to see how Josephus interpreted Exodus 21:22-25 and to note that he took the law to punish miscarriage solely by imposition of a fine. Let us now see how Philo construed the same passage of scripture.
If a man comes to blows with a pregnant woman and strikes her on the belly and she miscarries, then, if the result of the miscarriage is unshaped and undeveloped, he must be fined both for the outrage and for obstructing the artist Nature in her creative work of bringing into life the fairest of living creatures, man. But, if the offspring is already shaped and all the limbs have their proper qualities and places in the system, he must die, for that which answers to this description is a human being, which he has destroyed in the laboratory of Nature who judges that the hour has not yet come for bringing it out into the light, like a statue lying in a studio requiring nothing more than to be conveyed outside and released from confinement. De Specialibus Legibus, ch.xix, sec.108 (Loeb ed.)
It is interesting that Philo finds room to comment on matters not so much as hinted at by either Josephus or our English texts. A partial explanation for this disparity is Philo's reliance upon the Greek Septuagint instead of Hebrew manuscripts. Here is how Brenton renders the Septuagint text.
And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty; as the woman's husband may lay upon him, he shall pay with a valuation. But if it be perfectly formed, he shall 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.

Thus, the translators of the Septuagint apparently found something in the text which suggested that the fetus must be fully formed and developed before the more severe penalties of the lex talionis could be invoked and so rendered the text as to reflect this conclusion. From there, the translator's interpolations were picked up by Philo and found their way into his work. Like Josephus, both Philo and the Septuagint erroneously conclude that the child in the passage is born still. On the other hand, where Josephus has it that the fine applied to the miscarriage and the lex talionis to the injury or death of the mother, Philo attempts to make the language exacting "life for life" reach the child by asserting that a fully formed fetus, even though still-born, answers to the description of a human being. The advantage of Josephus' construction is that it at least leaves room to apply all of the language of the text depending upon the gravity of the injuries to the mother, whereas Philo's assumption that the child was born out of time renders the language exacting "eye for eye, tooth for tooth, etc.," mere surplusage. More important, however, is the fact that Josephus did not deem an infant in ventre sa mere a life within the law of homicide where it was born still, whereas Philo concurred with this conclusion only insofar as it did not implicate a fetus that was fully developed. This should be compared to what Philo says elsewhere to the effect that live-birth is a critical factor in attaining the status of humankind:
So Moses then, as I have said, implicitly and indirectly forbade the exposure of children, when he pronounced the sentence of death against those who cause the miscarriage of mothers in cases where the foetus is fully formed. No doubt the view that the child while still adhering to the womb below the belly is part of its mother is current both among natural philosophers whose life study is concerned with the theoretical side of knowledge and also among physicians of the highest repute, who have made researches into the construction of man and examined in detail what is visible and also by the careful use of anatomy what is hidden from sight, in order that if medical treatment is required nothing which could cause serious danger should be neglected through ignorance. But when the child has been brought to the birth it is separated from the organism with which it was identified and being isolated and self-contained becomes a living animal, lacking none of the complements needed to make a human being. And therefore infanticide undoubtedly is murder, since the displeasure of the law is not concerned with ages but with a breach of faith to the race. Though indeed, if age had to be taken into consideration, infanticide to my mind gives a greater cause for indignation, for in the case of adults quarrels and differences supply any number of reasonable pretexts, but with mere babes, who have just passed into the light and the life of human kind, not even a false charge can be brought against such absolute innocence. De Specialibus Legibus III, ch.xx, sec.117-119 (Loeb ed.)

Philo writes here with a view to the Greek practice of exposing their unwanted infants. But as Moses did not speak directly to this issue, Philo argues from the mistranslation of Exodus 21:22-25 in the Septuagint to the effect that if the destruction of a fully formed fetus was punishable with death, what else can it be to destroy a child born alive if not murder? In any event, notice that Philo says that it is not until birth that the fetus becomes a living, self-contained creature lacking none of the indicia necessary to make it a human being. Thus, there is an apparent discrepancy between Philo's assertion that a fully developed fetus destroyed in utero answers to the description of a human, and his statement here that live birth is also a critical factor. However, a fetus is either a "life" within the talion formula or it is not. As we have seen, every indication is that a fetus was not a life until born alive. Thus, in making these assertions it seems clear that Philo is merely attempting to accommodate the Septuagint's mistranslation. That he contradicts himself, therefore, should not surprise us. He is attempting to make straight what the Septuagint made crooked, so it is inevitable that he fail.
This said, Philo's basic premise that the fetus' maturity bore upon the criminal definition attached to its destruction requires further attention. So far as we have been able to ascertain thus far the law of homicide was powerless to reach an infant unless it was born alive. Yet, if we pause to consider the matter, use of the phrase "live birth" normally presupposes, and is reserved for, infants possessing a significant level of development. Hence the necessity of live birth as a requisite for a charge of homicide would seemingly offer some correlation with Philo's position that an undeveloped fetus was not a candidate for murder. If so, it would appear that the translators of the Septuagint and Philo struck upon something by their insistence that the stage of the infant's development was a factor in determining the applicable charge. Their only error would then lay in failing to see that, in addition to the stage of development, the lex talionis was made to turn upon the presence or absence of live birth; a factor they failed to apprehend owing to the mistaken assumption that the infant was born still. However, if we engraft the requirement of live birth upon Philo's interpretation it then appears to be a correct statement of the law. And this is borne out by the original tongue.
There are two terms in Exodus 21:22-25 that refer to the fetus. Both appear in verse 22. The first refers to the fetus in its mother's womb saying "if men strive and hurt a woman with child." Strong's has it that this word is from the Hebrew "hareh", or "hariy", and means simply to be with child, from and after conception through the period of natural delivery. For example, we encounter this word in Genesis 4:1 where it is said that Eve conceived and bare Cain. Similarly, hareh appears in Isaiah 7:14 in reference to the Christ child: "Behold, a virgin shall conceive, and bear a son." But the same word also occurs in I Samuel 4:19 where the wife of Phinehas is said to have been with child, "near to be delivered". Hence the word translated child in our English texts refers to the whole gestational period and in no way signifies the fetus' level of development or maturity. On the other hand, the word translated "fruit" in Exodus 21:22 ("so that her fruit depart"), is from the Hebrew "yeled", and is defined by Strong's thus: "Something born, i.e., a lad or offspring: boy, child, fruit, son, young man." Why the translators of the Authorized Version chose to render yeled "fruit" in this passage is a curious thing as it is the only time in the whole Old Testament they did so. This is unfortunate as it is somewhat misleading and likely to be confused with the Hebrew word "periy", also translated "fruit", as in "fruit of the womb". (Ps.127:3; cf., Deut.7:13.) Now, periy is used only figuratively to refer to human kind and itself carries no implication of the subject's age or maturity except as required by the context. On the other hand, the term yeled refers only to a fully developed infant or child. For example, we encounter this word in reference to Moses where it is written of his mother that she "conceived [hareh], and bare a son; and when she saw him that he was a goodly child, she hid him three months. And when she could not longer hide him, she took for him an ark of bulrushes, and daubed it with slime and with pitch, and put the child [yeled] therein; and she laid it in the flags by the river's brink." (Exodus 2:2,3.) This passage demonstrates nicely the distinction between hareh in reference to Moses' conception, and yeled in reference to the babe when he was three months of age. The same usage occurs in II Sam. 12:5,18, where Bathsheba informs David of her pregnancy saying I am with child (hareh), but when the child is delivered the term yeled is employed. Hence, while hareh speaks to the whole period of gestation, yeled signifies only a fully developed infant or fetus that has been delivered into the world of men. This should be compared with the term "golem," which in Aramaic means an unfinished vessel, but, in the Hebrew, a wrapped, unformed mass, i.e. an embryo. The word appears in Psalm 139 thus:
Where shall I go from Your Spirit? Or where shall I flee from Your face? If I go up to Heaven, You are there; if I make my bed in Sheol, behold, Your are there! If I take the wings of the morning, dwelling in the uttermost part of the sea, even there Your hand shall lead me; and Your right hand shall seize me. If I say: Surely the darkness shall fall on me; even the night shall be light around me. Even the darkness will not be dark from You, but the night shines as the day; as is the darkness so is the light. For You have possessed my inward parts; You wove me in the womb of my mother. I will thank You, for with fearful things I am wonderful; Your works are marvelous, and my soul knows it very well. My bones were not hidden from You when I was made in secret; when I was woven in the depths of the earth. Your eyes saw my embryo; and in Your book all my members were written; the days they were formed, and none was among them. Psalm 139:7-16 (HIB)
Of course, golem is merely a euphemism for what we understand to be an embryo. Hence there is an element of interpretation evident in versions rendering the term such. The translators of the Authorized Version elected a more literal, albeit somewhat obscure, rendering of Psalm 139:16:
Thine eyes did see my substance, yet being unperfect; and in thy book all my members were written, which in continuance were fashioned, when as yet there was none of them.
Although to read the Septuagint and Philo one would think the opposite were true, the word golem does not occur in Exodus 21:22-25. Instead, it would seem that the translators of the Septuagint concluded that a distinction was inferred and to be drawn between an embryo and a fetus based, perhaps, upon the juxtaposition of the terms hereh and yeled. However, as we have seen, the term hereh offers no indication of the child's age or maturity, and is used in at least one occasion to describe a full term pregnancy. Thus, the rendering of the Septuagint's translators on this score should probably be taken as an interpretation, rather than a translation, of the text; viz., an attempt to reconcile their own misgivings that the child was born still with the alternative penalties set out by Moses. In other words, having assumed the child perished in consequence of the accident, the translators were at a loss to identify the circumstances in which the lex talionis might be invoked over against the fine, and, rather than simply leave this question for the reader to sort out, manipulated the text to reflect their own conclusion. As we have seen, Josephus, faced with the same dilemma, made the language assigning "life for life" apply to the mother.
This said, that Philo and the Septuagint err on this score is really beside the point. Our purpose in calling attention to their misgivings is merely to underscore the meaning and significance of the word yeled, and its implications upon the proper interpretation of the passage - viz., that Exodus 21:22-25, including both the fine and the lex talionis, expressly applies only to a fully developed child. The further question, of course, is whether the text's express application to a fully developed fetus implicitly excludes an embryo from the provisions of the law there set forth. The better view is that it does. As Philo and the translators of the Septuagint undoubtedly were aware, even apart from the term yeled, the language of the text punishing the offender "eye for eye, tooth for tooth, hand for hand, foot for foot," is impossible to apply an embryo "yet being unperfect," having none of those members.
Thus the souls which are already pregnant are naturally likely to bring forth children, rather than those which are now receiving the seed. But as the eyes of the body do oftentimes see obscurely, and often on the other hand see clearly, so in the same manner does the eye of the soul, at times, receive the particular impressions conveyed to it by things in a most confused and indistinct manner, and at other times it beholds them with the greatest purity and clearness; therefore an indistinct and not clearly manifested conception resembles and embryo which has not yet received any distinct character or similitude within the womb: but that which is clear and distinctly visible, is like one which is completely formed, and which is already fashioned in an artistic manner as to both its inward and outward parts, and which has already received its suitable character. And with respect to these matters the following law has been enacted with great beauty and propriety: "If while two men are fighting one should strike a woman who is great with child, and her child should come from her before it is completely formed, he shall be mulcted in a fine, according to what the husband of the woman shall impose on him, and he shall pay the fine deservedly. But if the child be fully formed, he shall pay life for life." De Congressu Quaerendae Eruditionis Studies, sec. 135-137 (Yonge's translation)

Since, contrary to Philo's belief, imposition of the fine was not reserved for circumstances where the child was imperfectly formed and, indeed, cannot be shown to have applied to an embryo at all, but was to be applied to a fully developed child where the facts did not warrant invocation of the more severe penalties of the lex talionis, the conclusion that an embryo is excluded from the provisions of Exodus 21:22-25 seems unavoidable.
Having foreclosed the possibility that an embryo fell within the terms of Exodus 21:22-25, it remains to be seen what stage of maturity is contemplated by use of the term yeled. Philo's comments on this score seem confusing and even contradictory. First he says only that the child must be already shaped and the limbs have their proper qualities and places in the system. Viewed in isolation, the emphasis this description places on the physical appearance of the child's hands and feet, arms and legs could easily suggest a very young child, perhaps as early as twelve weeks or so into gestation. Then, however, Philo adds the comment that the child he is describing requires nothing more than to be conveyed into the world and released from confinement. This hardly suggests a child only twelve weeks of age, and more nearly infers a child approaching full term - one that is so far developed as to be merely biding time, as it were, until birth. Along these same lines are Philo's comments taken from his allegorical work immediately above touching Exodus 21:22-25 where he mentions that the child must be completely formed both in its outward and inward parts. A similar thought also seems to be expressed in his treatment of infanticide where Philo refers to a child born in the normal course of nature as being "self-contained" - a phrase we would submit should probably be taken as synonymous with the concept of viability. A viable creature is one that has the inherent capacity to prolong or sustain life without artificial support - qualities probably subsumed in the definition of a "living soul" or "soul of life." As it happens, the lungs are generally acknowledged as the very last of the vital organs to reach maturity, and are a leading cause in the incident of fetal death in premature births by the child's inability to properly assimilate oxygen through normal respiration. In other words, it is as if premature children are not viable because they cannot properly breathe, and they cannot properly breathe because they want sufficient vigor and vitality to be viable. Thus respiration and viability are more or less mutually interdependent, and seem inseparable from the definition of nephesh - a breathing creature. This is important because Exodus 21:22-25 equates the child (yeled) with a "life" (nephesh) where it was born alive. Hence, if nephesh implies viability, then we would expect yeled to incorporate something of this concept also. If this is correct, then Philo and the Septuagint appear to indicate a viable infant when they refer to one that is perfectly formed, waiting only to be born. For what it is worth, Jewish tradition as represented in the Talmud is in accord, not deeming a child a soul or life within the terms of the lex talionis and numerous other ordinances of the law unless it is both born alive and viable. (ben keyama; Mekh., Mishpatim, 4; Sanh. 84b; Nid. 44b; Oho.7:6.)
Viability normally obtains between the twenty-sixth and twenty-ninth weeks, or roughly the seventh month, albeit survival is attenuated absent artificial assistance to regulate the body temperature and respiratory rate. And apparently this was true even in ancient times as Philo attests that viability begins at the end of the seventh month. (De Opifico Mundi, sec. 124; Legum Aligoriae, I, sec. 9. [3] ) Hence, assuming that in using the term yeled Exodus 21:22-25 has in mind a child that is at least nominally viable, seven months is likely to represent the approximate age associated with a fully developed fetus, and candidate for homicide where born alive.
Bearing in mind that we have yet to reach the issue of self-induced abortion, it remains to be discussed why the law apparently excluded an immature fetus from protection by the lex talionis and the fine. As touching the fine, if viewed as an action in the nature of a suit for wrongful death, it seems likely that the law simply felt that the parents' interest in the prospective child was not sufficiently strong at an early stage of development to merit an award for damages. This should be compared with Exodus 21:28-32, granting an award of damages to indemnify the loss of a servant or child in being, and with the law elsewhere to the effect that the unborn young of animals and slaves were not a form of property until reduced to possession at birth. (Gn.30:25-43; Ex.21:4.) The difference seems to be that in the case of a child, as distinguished from a slave or livestock, there is an emotional attachment associated with its expected birth that the law is willing to vindicate, which in the other cases it is not. Thus, until the child reached an advanced stage of development the interest of the parents was apparently regarded as a mere expectancy that the law deemed too attenuated to protect. Anglo-American law follows a similar tact, the probable majority of states foreclosing recovery by parents for the wrongful death of a child prior to the point where it is deemed viable.
But if the parents' interests are too remote in the earliest stages of pregnancy to merit an award for a child's loss, what of the rights and interests of the child? Are the child's claims to protection no stronger than the parents' claims to the child? Under what circumstances is the law prepared to vindicate the rights of the unborn, if at all? The answer to this question is somewhat more complicated. In the first place, it must be borne in mind that the law extended no rights or privileges to a child until it was born alive. This is why the lex talionis could not be invoked until live-birth. The law of retaliation vindicated one's personal rights, and these did not accrue until birth. Thus, for killing a child while in its mother's womb, one may be punished for trespassing upon the rights of the parents, but not for trespassing upon the rights of the fetus. From and after live-birth, however, full human rights are afforded the child, and even relate back to the period of gestation. To take a case from Anglo-American law, where a father dies prior to the birth of a child already conceived, if subsequently born alive, the child will share in the inheritance with its siblings. However, if it is miscarried, the child's rights fail to be perfected and are lost. This demonstrates nicely how the law is sometimes prepared to acknowledge the rights of a child accruing during the period of gestation provided it is subsequently born alive.
Exodus 21:22-25 is in accord. The facts of Exodus 21:22-25 contemplate the case where a mature child is born contemporaneously with, and as a result of, the accident. Where this occurs, and the child is crippled or the like, there is no difficulty: the law instructs that the actor is to pay "eye for eye". Hence the rights of the child are perfected and will be vindicated upon live-birth for injuries incurred while in its mother's womb. The further question whether an action would lie where the child was born weeks or months after the incident is less clear. It may be that, like early common law, no recovery was permitted for injury to an embryo or nonviable child - perhaps for evidentiary reasons concerning the causal relation between the accident and the child's injuries. A good argument can be made, however, that the child's maturity at the time of the incident would not change the result. That is, that damages would be available where the child is merely an embryo when injured, even though it is born months later. As we have seen, hareh is sufficiently broad to include the whole gestational period. Hence, according to this argument all that would seemingly be required is that the child be fully developed when born in order for its rights to be perfected and the lex talionis evoked. On balance, however, whether an action would lie for prenatal injuries where the child is born long after the asserted injury depends upon how much emphasis is laid upon the hypothetical facts of Exodus 21:22 which posit that the child's birth is in close proximity to the mother's injury. As we have seen, Anglo-American law is divided, about half of the states require that the child be viable at the time of the injury, the other half requiring only that it subsequently be born alive. The literal terms of Exodus 21:22, however, favor a construction that would require the fetus be viable at the time the injury occurred and be born as a result thereof.
Exodus 21:22-25 thus covers an incredible amount of law in its few verses. Both the law of private recovery for wrongful death of the unborn child is dealt with, as well as the criminal consequences of the child's prenatal injury and post-natal loss. Questions still remaining to be answered include how to account for the apparent disparity of punishments exacted depending upon live versus still birth, and how deliberate abortion was dealt with, if at all.


CHAPTER FIVE

ABORTION, ATTAINDER, AND CORRUPTION OF BLOOD

As we have seen, Exodus 21:22-25, although it reveals much concerning the still-birth of a child, stops short of telling us how the law dealt with the case of deliberate, self-induced abortion - except to indicate that it was not homicide. The principles and precedents relied upon by the Israelites to condemn and punish abortion will now be taken up. As before, we will resort to Josephus to begin our discussion.
The Law orders all the offspring to be brought up, and forbids women either to cause abortion or to make away with the foetus; a woman convicted of this is regarded as an infanticide, because she destroys a soul and diminishes the race. For the same reason none who has intercourse with a woman who is with child can be considered pure. Contra Apion, bk.II, sec.202 (Loeb ed.)
Josephus states in treating of Exodus 21:22 that miscarriage and abortion were punishable only by fine; that he now calls it infanticide seems contradictory and hard to give account. The context of Josephus' comments above relates to marital laws among the Jews, and is part of a larger discourse against Apion in defense of Jewish antiquity and culture. A fair portion of what Josephus reports in his account of Jewish law represents the oral tradition of the Pharisees, to which sect Josephus belonged. The Pharisees, it may by noted or recalled, represented the largest sect among the Jews in the days of our Lord. The principle feature that distinguished them from the Sadducees, the next largest sect, was their insistence upon the necessity of observing the body of oral traditions deduced from the law - some of which has survived and is now reduced to writing as recorded in the Talmud. On this score it is important to bear in mind that, although the Lord leveled perhaps his most severe criticisms at the Pharisees, not everything they taught or deduced from the law was erroneous. The most substantial charge laid to the Pharisees' account was their hypocrisy, self-righteousness, and willingness to sometimes deal dishonestly with the law when deemed expedient. Yet for all that they were able to reason correctly and handle the law honestly when inclined to do so. For example, the Pharisees taught the resurrection of the dead, whereas the Sadducees did not. (Acts 233:6-9.) Indeed, what Josephus says above regarding the impropriety or unlawfulness of sexual relations with a woman while pregnant may be hinted at in the fact that Joseph had no relations with Mary while pregnant with the Christ child. (Mt.1:25.) Whether the teaching of the Pharisees on this point was responsible in whole or part for Joseph's abstinence probably cannot be known. The purpose behind this teaching among the Pharisees speaks to endangerment of a child in utero and, to a lesser extent, the asserted proper use of sex solely for purposes of procreation. Obviously, Joseph may well have been moved by entirely different considerations, such as reverence and godly fear given the nature of the child in Mary's womb, and to accommodate the prophecy that Jesus would be born, not just conceived, of a virgin. Even so, the point remains: while it is right to approach the traditions of the Pharisees with all caution and circumspection, it would be wrong to reject them out of hand.
But to return to our discussion, what Josephus says above appears to contradict what he said earlier to the effect that the law of homicide did not apply to a child killed in utero and born still. To thus give account of this apparent anomaly must be our immediate task. The first clue toward unravelling the mystery of Josephus' statement that the woman who procured an illicit abortion was regarded as an infanticide lays in the context in which it appears. As already mentioned, what Josephus says here regarding abortion is part of his treatment of laws surrounding the institution of marriage - part of a larger defense of Jewish customs and traditions in general. Immediately proceeding his comments regarding the institution of marriage, Josephus makes the case for the superiority of the nation's religious observances involving the temple and sacrifices. Specifically, he notes that, among the Jews, feasts and sacrifices were not occasions for dissipation and riot, but worship and reverence. Closing his discourse regarding religious observances, Josephus says that, "In view of the sacrifices the Law has prescribed purifications for various occasions: after a funeral, after child-birth, after conjugal union, and many others." (Contra Apion, II, sec.198; Loeb ed.) Bearing in mind that Apion was Greek, this can be seen as a subtle dig upon Greek religious observances, which were little more than an excuse for every lascivious practice. The point, of course, being that, whereas the Greeks used religion as an occasion to vent every unlawful vice, the God of the Hebrews had taken care to ward off encroachments of this type by guarding the temple precincts through various ceremonial cleansings so that even the man who had enjoyed legitimate relations with his wife could not approach the alter that same day. (See Lv.15:16-18.)
As touching those who participate in funerals, Josephus says that ceremonial washings were imposed so that none who committed murder might suppose he could be made pure in the sense of approaching the temple precincts to worship. (Contra Apion, II, sec.205; cf., Num.19:11-13; Lam.4:13-15; Eze.23:38,39.) This explanation makes sense and finds adequate corroboration in the ceremonial cleansings imposed on those returned from war (Num.31:13-20) - suggesting that even the death of enemies was a thing grievous to God - and the banishment of the manslaughterer to a city of refuge until the death of the High Priest, foreclosing the possibility that such approach the temple to worship for the duration of their exile. (Num.35:32.) This too may be seen as a dig on the Greeks, whose temples offered sanctuary to untold criminals who, by fleeing and taking up virtual residence there, were suffered to escape justice. And here too, the God of the Hebrews had specifically legislated against such desecration and defilement, making clear that his temple was to a place of reverence and refuge from, not for, sin. (Ex.21:14;1 Kng.2:26-31.) Thus premised, it is easy to see that this is the significance of what Josephus said regarding the man who had relations with a woman with child not being pure. That is, one who through sexual relations caused, or threatened to cause, a child to be still-born was deemed ceremonially impure. That Josephus has this in mind is evident from the fact that very next sentence addresses ablutions imposed after relations between a man and wife:
Even after the legitimate relations of husband and wife ablutions are required. For the Law regards this act as involving a partition of the soul [part of it going] into another place; for it suffers both when being implanted in bodies, and again when severed from them by death. That is why the Law has enjoined purifications in all such cases. Apion ii, 203 (Loeb ed.)

Thus, what Josephus says regarding the man who risks causing a miscarriage through illicit intercourse not being pure can be seen as a reference to ordinances or traditions of the temple worship imposed by or upon the Jews to bring home the holiness of God and his abhorrence for sin. This places what Josephus says regarding a woman who aborts her offspring in an unexpected light. That is, the context suggests that in saying a woman convicted of abortion "is regarded as an infanticide," Josephus is merely indicating such women were deemed ceremonially unclean - stained by sin, as it were, in the same manner as the murderer, manslaughterer, fornicator, etc. The same terminology is used in reference to the eunuch:
Shun eunuchs and flee all dealings with those who have deprived themselves of their virility and of those fruits of generation, which God has given to men for the increase of our race; expel them even as infanticides who withal have destroyed the means of procreation. Antiquities, bk.iv, ch.viii, sec.40 (Loeb ed.)
Josephus comments touching the eunuch are derived from Deuteronomy 23:1 where one wounded in the testicles or who had suffered the loss of his genitals was prohibited to enter the congregation of the Lord. Thus, the eunuch suffered under the same disabilities and impurities as a gentile (vv.3-7), and an illegitimate child (v.2). All of these were precluded to worship with the sons of Israel at the temple, and were relegated to the court of women and gentiles. (Neh.13:1; Lam.1:10; Eze.44:6-9; Acts 21:28; Rev.11:1,2.) However, that is not the whole story. As stated by Josephus, persons suffering under these disabilities were to be shunned, and Jews were to have no dealings with them. (cff. Jn.4:9; Acts 10:28.) Moreover, unlike the chance impurities that would make one ceremonially unclean and might be absolved with the passage of time and the performance of certain rites, the mark upon the eunuch, the gentile, and the bastard followed them for life, and even fell upon their children, typically until the third or fourth generation, but in some cases even "until the tenth generation" - meaning forever. (Deut.23:3.) Apparently this is the significance of the language in the Decalogue to the effect that God would visit the iniquity of the fathers on the children "unto the third and fourth generation of those that hate me." (Ex.20:5.) In other words, by committing certain offenses one's forebear could be "attainted" and cause a "corruption of blood" (to use Anglo-American terminology), thus losing his name in Israel, causing disenfranchisement of his bodily heirs until the required number of generations had lapsed.
During the middle ages the better part of western civilization, like antiquity before them, was draw up along feudal lines. Unlike today, where the majority of wealth consists in rights to receive annuities, dividends, and other payments based upon contract or ownership of corporate shares, and the like, for most of mankind's history land and livestock were the principle forms of wealth, and society was generally occupied in agricultural pursuits. The custom thus grew up in different parts of the world which had it that all men held the land mediately or immediately of the king. The king, in turn, gave the right of possession to nobles and lords who were sworn to fight the king's battles and provide local administration of the laws. These lords would thus distribute the land to vassals or tenants from whom the lord received rents and services. Remnants of this system can be seen today in the division of land into cities and counties which enforce the laws and collect taxes from those possessed of land. In feudal times, the right to devise, hold, and inherit land was based upon an oath of fealty to one's lord. Where one died without children or heirs, or suffered some other disablement, the land would "escheat" or revert to the lord of the fee. Among the disablements that would cause an escheat that are relevant here were bastardy, alienage, and attainder.
Illegitimate issue could not inherit land, being styled in law the sons of nobody. Being thus the son of no one, a bastard had no "inheritable blood" - meaning that, in contemplation of law, his blood imparted no legal claim as would entitle him to inherit an ancestor's lands. Thus, where there was no other claimant than one of illegitimate issue the land escheated to the lord. Aliens suffered under the same disabilities, and were precluded to hold land by purchase or inheritance, so that if there were none to take but an alien upon a man's death, the land would revert to the lord. That leaves attainder. According to English common law, when a man was convicted of treason, felony, or outlawry for flight from justice he suffered forfeiture of all chattels and goods. Where the conviction proceeded to sentence and judgment, the convicted man was attainted. Attainder (Lat. attinctus, stained or blackened) caused a corruption of blood in the person attainted so that he could neither inherit lands or other estates from his ancestors, nor retain those he already possessed, nor transmit such by devise or descent to an heir. The consequence of this corruption of blood was thus to destroy the inheritable quality of one's blood, causing the land to revert to the lord of the fee through a kind of civil death that blotted out, in contemplation of law, all of one's heirs. Thus, attainder effectively reduced one to the status of an alien who, because such owed no duty of allegiance to the lord or king, did not have inheritable blood. (See generally, Blackstone, Commentaries II, 244, 251-253; IV, 373-382.)
Originally, attainder and corruption of blood caused a forfeiture that cut off one's heirs in perpetuity. Later forfeitures were limited merely to the life of the person attainted. The founding fathers saw fit to make this limitation part of our national institutions in cases of treason stating that "no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." (U.S. Const. Art.III, Sec.3.)
Similar rules seems to have obtained in Israel. In the twenty-sixth chapter of the book of Numbers is recorded the census taken of the sons of Israel after the first generation removed from Egypt had died off. According to this census, all males twenty-years old and upward as were able to go to war were enumerated by their father's house and tribe. To these the land was thus to be divided for an inheritance, according to the number of names. The letter of Aristeas which gives the history of the translation of the Septuigent has it that each of these original settlers was distributed 100 acres of land. (Aristeas, sec. 116.) In this way, each member of the community obtained a name and an inheritance of paternal land in Israel. It is submitted that this is the significance of the language in John 1:12-13 to the effect that those who believe upon Jesus are empowered to become children of God, born "not of blood, nor of the will of the flesh...but of God." That is, unlike the covenant community of the Old Testament and its system of paternal lands and herediments, participation in the privileges and immunities of the New Testament Kingdom is not predicated upon pedigree or the inheritable quality of blood.
Now, that an Israelite could suffer forfeiture of his paternal land upon conviction for an enormous offense is intimated and appears from the twenty-seventh chapter of Numbers. There we have recorded the case of the daughters of Zelophehad. It seems that Zelophehad had five daughters, but died without sons. Hence, when the census was taken of those able to go to war, the daughters were not enumerated, thus giving them no paternal possession. Therefore, these women went to Moses to solicit the right to enter upon the paternity of their father in these words:
Our father died in the wilderness, and he was not in the company of them that gathered themselves together against the Lord in the company of Korah; but died in his own sin, and had no sons. Why should the name of our father be done away from among his family, because he hath no son? Give unto us therefore a possession among the brethren of our father. Numbers 27:3,4
In mentioning the fact that their father had not been in the company of Korah in that man's rebellion against Moses, the inference is that the daughters of Zelophehad were attempting to dispel the possibility that their father's name had been entered upon the roles of the impious for participating in the rebellion, causing it to be struck from the number of those making up the congregation and entitled to possess a paternity. This would not have meant, of course, that Zelophehad's name would have been struck in perpetuity so that none of his lineal descendants could ever enter the congregation. Rather, apparently it would merely have disqualified his posterity for the requisite number of generations, who could then redeem the land from whatever family member it fell to during the period of separation. This seems to be borne out by the fact that Dathan and Abiram's names were entered upon the roles of the census and, though dead, were given an inheritance in Israel, notwithstanding that they participated in Korah's rebellion. (Num.26:9,53.) In other words, in saying their father had no part in the rebellion, Zelophehad's daughters were giving assurance that they suffered no disability to presently entering upon the paternity of their father based upon attainder for his acts or crimes. That possession of the land as an inheritance or paternity was predicated upon obedience to the terms of the covenant is also clearly shown by Ezekiel:
Son of man, they that inhabit those wastes of the land of Israel speak, saying, Abraham was one, and he inherited the land; but we are many; the land is given us for inheritance. Wherefore say unto them, Thus saith the Lord God: Ye eat with the blood, and lift up your eyes toward your idols, and shed blood; and shall ye possess the land? Ezekiel 33:24,25

The point we are trying to make through all of this is that the Jews deduced from the commandment to have no dealings with gentiles, illegitimate offspring, and eunuchs, a body of law which, while nominally ceremonial, in practice was penal in the highest degree. Hence, whereas we are inclined to regard the exclusion of gentiles and others from the mainstream of Israeli society as a type of ceremonial uncleanness or impurity, actually it was a form of ecclesiastical censor and ostracism that was sufficiently severe to substitute as a criminal sanction, and in some cases apparently did.
While it is not clear in every case what sins fell within the pale of this rule, reason suggests that attainder and corruption of blood obtained upon conviction of most capital and other enormous crimes, in addition to the usual sanctions of the criminal law. This offers some explanation for the language repeatedly encountered to the effect that capital offenders were to be "cut off from among their people." (Lv.20:18.) Other cases evidencing the practice of ostracism for various ecclesiastical offenses may be seen in those guilty of contracting affinity with foreign wives, bastardy - including children of forbidden marriages - and those condemned for embracing notions deemed false and heretical. Hence, after the captivity, when it was learned that certain Jews had made forbidden marriages they were compelled to divorce their wives under penalty of forfeiture of all their substance, and separation from the community. (Ezra 10:1-8.) Similarly, we find that those who expressed faith in Jesus as the promised Messiah were expelled from the synagogue (Jn.9:22,34;16:2) and suffered the spoiling of their goods (Heb.10:32-34). Lastly, we see that Jephath, the illegitimate issue of Gilead, was thrust out of his father's house and prevented to share in his estate in conformance to Deuteronomy 23:1. (Jud.1:1-7; cf.Gn.21:10;25:6.) The term translated "bastard" in the Authorized Version is from the Hebrew "mamzer", meaning to alienate, a mongrel, i.e., one born of a Jewish father and heathen mother. Hence, by implication, those born of mixed marriages, concubinage, incest, adultery, fornication, or prostitutes - "the sons of the sorceress, the seed of the adulterer and the whore" - would also have fallen within the rule. (Isa.57:3; cf.Jn.8:41.)
Another line of cases falling within the pale of this rule more closely related to abortion are the homicide crimes. As noted before, Josephus' reference to the murderer and one having relations with a pregnant woman being impure implies that these individuals also suffered attainder. (See Lam.4:13-15.) Shadows of this may also be seen in the punishment of the manslayer. For killing a man unintentionally or under circumstances negating malice, the manslaughterer was banished to a city of refuge for the remainder of the life of the High Priest. However, after the High Priest's death, the offender was permitted to return to the "land of his possession." (Num.35:28.) In other words, the manslayer suffered a type of attainder, limited to the life of the High Priest, during which he was excluded from the congregation and enjoyment of his paternity. After his exile was complete, however, he was admitted anew into the congregation and could retake possession of his land.
Banishment of the manslaughterer is singularly important to our analysis. Josephus informs us that a woman who procures an illicit abortion was regarded as an infanticide. The term "infanticide" suggests to many wilful and deliberate murder. However, that Josephus has in mind manslaughter appears from what he said regarding eunuchs being shunned and expelled "even as infanticides." Murder, of course, was punished capitally. Hence, in referring to the infanticide as suffering expulsion and exile, Josephus indirectly tells us something about Jewish understanding of this offense.
In the typical case of infanticide the child's death is intentional, albeit of natural causes. That is, the mother or parent fails to take adequate precaution to preserve the infant's life at birth by omitting to bind up its umbilical cord or guard it against exposure. According to modern Anglo-American law, where a child dies in consequence of the malicious omission of the performance of a duty, such as that of a mother to feed her child, it will be murder. However, this has not always been the case. At early common law the death of a child under these circumstances would have amounted to no more than manslaughter. Josephus' indication that the infanticide was punished by banishment or exile suggests that first century Jews understood the law of Moses in terms similar to early common law. How this squares with Biblical teaching is hard to say.
In the case of the aggressive ox set out at Exodus 21:28-32, the owner was chargeable with murder for permitting his beast to roam at large in the face of an inherent danger to others. This will be murder because his conduct evidences a wilful and wanton disregard for the risk of death or serious bodily injury to others he has created by effectively releasing a wild animal in a populated area. The causal relation between the death of an abandoned child and its parents' omissions, however, is more tenuous. Parents who abandon their child do not actually create the risk of death to the child - the risk already exists in the infant's inability to provide for itself. Indeed, without affirmative steps taken by the parents to save the child it cannot survive. Hence, they merely allow the child to succumb to death from natural forces already set in motion, and do not set those forces in motion themselves. Thus, while the moral quality of the parents acts is plainly malicious in the sense that their omission is wilful and wanton, the fact that the death is the result of a failure to act in the face of parental duty distinguishes infanticide from the case of the ox. The owner of the ox creates a risk, the parents merely omit to alleviate one. The question is whether this is sufficient to extenuate the offense from murder to manslaughter. Apparently the Jews held that it was. In Ezekiel 33:1-9 is recorded the case of a watchman charged with the duty to warn of an approaching enemy. If the watchman failed to warn, and the people were slain unawares, their blood was required of the watchman. The charge upon the watchman created a false expectation of security in the people leading them to be caught unprepared. For their deaths the watchman is accountable. However, a charge of murder seems very unlikely. He has occasioned men's deaths, but he has killed no one. The better view is that he is guilty only of manslaughter. A similar analysis should probably obtain regarding Abraham sending Hagar and Ishmael into the wilderness with scant water supplies. (Gn.21:14-16.) Although the scriptures record that it grieved Abraham to send Ishmael away because he was his son (v.11), Abraham's provision for the child's welfare was nominal, at best. With so much wealth and manpower at his disposal to properly feed and escort Hagar and Ishmael to another settlement, the token supply of bread and water Abraham gave the two seems calloused and uncaring, perhaps even hardened. Even so, had Ishmael actually died it is hard to see how Abraham could be justly charged with murder. He might have prevented the child's death, but he did not kill him. Missing is the requirement repeatedly set out in the law that the murderer commit some overt act causing, or creating the risk of death, such as striking a man or the like, before it will be murder. (Ex.21:12.) Hence, Josephus' suggestion that infanticide was merely manslaughter, punishable by banishment, is arguably sound.
Another interpretation of what Josephus says might be that he is referring to infanticides among the gentiles that came to trade or worship in Judea, similar to the Ethiopian eunuch. (Acts 8:27.) Because these individual's crimes would have been committed beyond the jurisdiction of the state, the Jews would not have had authority to punish them for either murder or manslaughter. Hence, Jews were to flee all dealings with such persons. If this is the significance of what Josephus says, then it may well be that infanticide was deemed a form of murder. Certainly Philo was persuaded as much. (See p. --, above.) Even so, there is no indication that Josephus means to suggest that the woman convicted of abortion was punished capitally as a murderer. The better view is that Josephus intends we understand that she was punished in terms similar to manslaughter - e.g., she was attainted, suffered forfeiture of her goods, and was driven from the presence of respectable society. Paul's statements in I Corinthians 11:6 to the effect that it was a shame for a woman to be shorn or shaven (cf., Num.5:18; Deut.21:12) offers some suggestion that women excommunicated from the congregation may have also been marked by shaving their heads as a badge of their infamy. In any event, it seems clear that for deliberate self-induced abortion a woman was punished by a form of ostracism akin to that imposed upon eunuchs, illegitimate children, and gentiles. Except to bring such unto repentance, no Jew could have any dealings with them. They were made aliens in the land of their nativity, surviving on the edges of society.
The severity of this punishment should be compared with the fine imposed on the actor in Exodus 21:22. The only difference that can be cited between the cases is that Exodus 21:22 posits an unintentional loss of the child, whereas abortion is deliberate and wilful. Yet the fact that the child's loss is unintentional does not mean that it is not malicious. As we said before, the fact that the offender in Exodus 21:22 was potentially punished "life for life" indicates that the accident might amount to murder. Hence, the difference between deliberate abortion and malicious, but unintentional still-birth, is marginal at best. If an adult life were being discussed, either way it would be murder and punished with death. Why the punishment for abortion should be so much more severe than the fine in Exodus 21:22-25 is thus hard to give account. Perhaps the short answer is that where the offender's act causing loss of a child was intentional or malicious he suffered attainder and corruption of blood in addition to the fine or mulct, just as a woman who aborted her own child. This seems to be borne out by Josephus' reference to the man being "impure" who caused an abortion through intercourse. If he is impure and subject to separation based upon a miscarriage caused through intercourse, there is no reason to expect otherwise of the individual in Exodus 21:22-25 where his acts evidence the same moral quality. After all, the monetary exaction imposed in Exodus 21:22 was primarily intended to indemnify the parents for loss of a viable child and was not even exacted if the child was imperfectly formed. If attainder obtained, then the incongruity of the actor getting off scott-free where the child was not viable is avoided.
In sum, abortion appears to have been punished in a manner analogous to manslaughter. The ecclesiastical arm of government apparently had standing to prosecute the offense, although the civil arm could not - the lex talionis having no application in such cases. Unlike Exodus 21:22-25, there is no indication that the age or maturity of the fetus had any bearing upon the offense. Where the procedure was attempted and resulted in the child's being born alive, if it was viable and subsequently died, the act would be murder. Where the infant was imperfectly formed and the law of homicide did not apply, the law of abortion filled the gap, so that there was no escape. Thus, whether the child perished in her womb or after birth the mother or other party would have been liable no matter what age the child.

CHAPTER SIX

THE IMAGE OF GOD AND THE LAW OF HOMICIDE

By now the questions asked toward the beginning of this book have pretty much all been answered. As we have seen, abortion was not homicide, but was punished, rather, by an ecclesiastical censor in the form of attainder. These things answered, other questions crop up. For example, why should the law deem the same act murder or no depending upon the fortuity of live birth and the maturity of the fetus? What do the several criteria before a charge of homicide could obtain tell us about the offense? For that matter, why were abortion and murder punished differently at all?
It is no secret that the two principle aims of the criminal law are generally deemed to be retribution and deterrence. Retribution, to vindicate and avenge wrong, and to right the scales of justice. Deterrence, so that the people will not venture to imitate the acts of the offender, fearing that they themselves will receive the like rewards for their crimes. In the words of Solomon, "Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil." (Ecc.8:11; cf.Deut.17:12,13.) Thus deterrence requires that the law be sufficiently severe to warn off would be offenders. Justice, on the other hand, is largely a sense of equality and proportion. To have just weights and just measures is for them to be equal to the standard of measure they purport to represent. In the realm of criminal law, justice requires that wrong be avenged in due proportion to the crime. The more severe the offense, the greater the punishment, and so forth. The sometimes delicate balance between justice and judgment, mercy and truth, was expressed by the Psalmist saying they had met and "kissed," presumably in the law of Moses and the talion formula of "eye for eye, tooth for tooth." (Ps.85:10; cf.89:14.) That the law excluded the unborn from the benefits and protection of the lex talionis strongly suggests a want of proportionality between a life in being and life developing in the womb. In other words, it would seem the two "lives" are not equal. The focus of our inquiry must therefore be conducted in terms of identifying what differentiates the two.
In the sixth chapter of the book of Genesis we learn that very early into the history of the race the world became filled with violence. Indeed, so great was this propensity in men that God was moved to destroy the world by the flood. (Gn.6:9-13.) We know, of course, however, that God relented of his purpose and in Noah preserved a seed to replenish the earth. Moreover, in reaffirming his commitment to the race, it is written that after the flood God vouchsafed to man his life blood as an assurance that mankind was precious in God's sight:
And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed; for in the image of God made he man. Genesis 9:5,6
Thus the law of homicide was enacted because man was made in the image and likeness of God. Obviously, the fact that man is made in God's image is not the only consideration justifying the punishment of homicide. Even countries that are nominally atheist and hold that man is merely a product of evolutionary chance punish murder. The need for peaceable order and security in society requires that minimum acceptable standards of behavior be imposed upon its members. But these, and any other reasons that might be offered, would merely be human justifications, and could not sanction punishing the murderer with death apart from the approbation of his Maker. Thus, entirely apart from any considerations men may suggest, God's reason for requiring the life of the murderer is that man was made in His image. Hence, the life of God's other creatures evokes no similar vindication. But as the protection and vindication offered by the lex talionis is predicated upon the imprint of God's image in man's soul, how else does one account for the exclusion of the nonviable, stillborn child from the law's protection other than to conclude that such do not bear the impression of this stamp?
The word "image" in Genesis 9:6 is from the Hebrew "tselem" and means a phantom, i.e. illusion, resemblance; hence a representative figure, especially an idol. On this score, it is noteworthy that the Second commandment prohibited Israel to attempt to portray God's image by making idols of wood or stone. They were prohibited to do this because not only was it presumptuous to attempt to fashion a representation of Him whom they had never seen nor could see, but because it is impossible that God's moral character, the only part of him we have been shown, should be reflected in lifeless stone. Besides, God had already given the nation as near an image of himself as could be set in stone when He revealed himself through the moral commands of the Decalogue. This is fairly intimated in the account of Moses when he ascended the mount to receive the Ten Commandments, asking God to "show me now thy way, that I may know thee, that I may find grace in the sight." God responded saying "I will make all my goodness pass before thee, and I will proclaim the name of the Lord before thee." (Ex.33:13,19.)
And the Lord descended in the cloud, and stood with him there, and proclaimed the name of the Lord. And the Lord passed by before him, and proclaimed, The Lord, The Lord God, merciful and gracious, long-suffering, and abundant in goodness and truth, keeping mercy for thousands, forgiving iniquity and transgression and sin, and that will by no means clear the guilty; visiting the iniquity of the fathers upon the children, and upon the childrens' children, unto the third and to the fourth generation. Exodus 34:5-7
The better part of the words spoken by God to Moses above occur in the Decalogue following the prohibition against graven images. (Ex.20:4-6.) The inference seems to be that knowing God and his way involves understanding his moral attributes of mercy and justice, long-suffering and love - things impossible to be represented by the art of man. Thus premised, the law of Moses may be seen as something of an initial step in God's desire and plan to reveal himself to man's darkened mind, and to recreate His image in an estranged and fallen race. To the extent that it was possible for moral and legal pronouncements suitable for national institutions to portray God's essence, the law of Moses was like a tapestry whose threads were woven together to give man a moral and intellectual portraiture of his Maker. The law of Moses revealed God through a veil or glass obscurely, but Jesus clearly, and face to face.
Seeing then that we have such hope, we use great plainness of speech; and not as Moses, which put a veil over his face, that the children of Israel could not steadfastly look to the end of that which is abolished; but their minds were blinded; for until this day remaineth the same veil untaken away in the reading of the old testament; which veil is done away in Christ...But we all, with open face beholding as in a glass the glory of the Lord, are changed into the same image from glory to glory, even as by the Spirit of the Lord. II Corinthians 3:13-14,18
(See also, I Cor.13:8-13; II Cor.4:6.) Hence Jesus is said to be the "image of the invisible God" (Col.1:15) and the "express image of his person." (Heb.1:2.) Now, Jesus, like Adam, was a son of God (Lk.3:38), and Adam, like Jesus, bore God's image and likeness. However, after the fall Adam's sons are said to have borne Adam's image and likeness - not God's. (Gn.5:3.) The letter to the Romans informs us that in Adam all die inasmuch as the natural man is at enmity with God. He is carnal, sold under sin. (Rm.5:12-21; 7:14-25.) Hence, in Adam, mankind bears the image and likeness of its first ancestor after the fall, and has impressed on its collective soul the stamp of our first ancestor's moral estrangement from God through his propensity to sin. However, the image that Adam lost, Christ came to restore and renew in the Christian through "knowledge after the image of him that created him." (Col.3:10.)
Thus said, it seems clear that to be made in the image and likeness of God meant that mankind was created in his heart and mind to resemble God in his moral faculties and judgments. In breathing into man the neshamah, it would appear that God thus deposited the divine image in the seat of man's moral faculties, creating in Adam a sort of temple for a dwelling place of God through his spirit. And just as the temple in Jerusalem was vindicated with death in the man that ventured its desecration or destruction (I Cor.3:16), the law of homicide was enacted to vindicate the unlawful killing of man. Philo gives it thus:
The second commandment [i.e. the 7th ] is to do no murder. For nature, who created man the most civilized of animals to be gregarious and sociable, has called him to shew fellowship and a spirit of partnership by endowing him with reason, the bond which leads to harmony and reciprocity of feeling. Let him, then, who slays another know full well that he is subverting the laws and statutes of nature so excellently enacted for the well-being of all. Further, let him understand that he is guilty of sacrilege, the robbery from its sanctuary of the most sacred of God's possessions. For what votive offering is more hallowed or more worthy of reverence than a man? Gold and silver and costly stones and other substances of highest price serve as ornaments to buildings which are as lifeless as the ornaments themselves. But man, the best of living creatures, through that higher part of his being, namely, the soul, is most nearly akin to heaven, the purest thing in all that exists, and as most admit, also to the Father of the world, possessing in his mind a closer likeness and copy than anything else on earth of the eternal and blessed Archetype. De Decalogue, ch. xxv (Loeb ed.)
Philo took man's mind for the vessel which bore God's image and imprint. Thus, Philo has it that it is a form of sacrilege to kill a man because man is a type of votive offering in the temple and treasury of God. While there is nothing objectionable to this analogy, Philo's earlier analogy of an unborn child to a statue is more on point. When a sculptor begins his work he gathers raw materials which in no way resemble the subject or model. To take the case of a sculptor that has been commissioned to render the image of Caesar in stone, it is not hard to see how one of the despots among the Roman emperors might punish with death the man that presumed to affront Caesar by defacing his statue. Indeed, we know that such laws existed. However, it is also easy to see how in the statute's formative stages its resemblance to Caesar could be so remote or nonexistent that Caesar would feel little or no affront if it were disfigured or destroyed. In such case, Caesar would feel no great indignation at the act because its lack of resemblance to him prevented his identification of the unfinished statue with himself.
To take the case of man, until viable - until the time when the statue is waiting to be released from confinement in the studio - the Artist's self-portrait remains imperfect. The image of God has not yet been reproduced in the subject. The unborn child has no moral or intellectual faculties. These will only begin to develop after birth. Hence the law of homicide enacted to protect and vindicate the finished product bearing these qualities does not apply. The long and short of the case then is that the law of homicide seemingly proceeds upon a qualitative analysis of mankind, with a view to his rational nature, drawing the line at birth. The earlier stages of gestation, when the child more nearly approximates animal and vegetable life, do not evoke the same implications and concerns present in a viable child born alive. The unborn child is human to be sure, but it is not a human being. The stamp of the Creator's likeness has not yet been fully impressed in contemplation of law until born alive into the light and life of man.
This should be compared with what we have been able to ascertain about Old Testament punishment of abortion. In this case we find no suggestion that the fetus' stage of development bore upon the applicability of the charge. Rather than the qualitative analysis used in punishing homicide, attainder for abortion seems to have thus been predicated upon the sanctity of the bare germ of human life. Indeed, among the Jews certain false notions grew up that attached undue significance upon men's seed even prior to conception:
They too must be branded with reproach, who plough the hard and stony land. And who should they be but those who mate with barren women? For in the quest of mere licentious pleasure like the most lecherous of men they destroy the procreative germs with deliberate purpose. For what other motive can they have in plighting themselves to such women? It cannot be the hope of offspring, a hope which they know must necessarily fail to be realized; it can only be an inordinate frenzy, and incontinence past all cure. Those who marry maidens in ignorance at the time of their capacity or incapacity for successful motherhood, and later refuse to dismiss them, when prolonged childlessness shows them to be barren, deserve our pardon. Familiarity, that most constraining influence, is too strong for them, and they are unable to rid themselves of the charm of old affection imprinted on their souls by long companionship. But those who sue for marriage with women whose sterility has already been proved with other husbands, do but copulate like pigs or goats, and their names should be inscribed in the lists of the impious as adversaries of God. For while God in His love both for mankind and all that lives spares no care to effect the preservation and permanence of every race, those persons who make an art of quenching the life of the seed as it drops, stand confessed as the enemies of nature. De Specialibus III, sec.34-36 (Loeb ed.)
There is little question that Philo has in mind ostracism and attainder in saying that the names of those who quench the seed of life as it drops "should be inscribed in the lists of the impious as adversaries of God" and "enemies of nature." The relation of this purported offense to the castrate, the man who has intercourse with a pregnant woman, and one who aborts her offspring is not difficult to grasp. Like the man who has carnal knowledge of a woman during her period of separation (Lv.18:19;20:18), the pedophile (Lv.18:22), and hybrid cattle and seed (Lv.19:19; Deut.22:9,10), one way or another, each of these is a type of "confusion" (Lv.18:23), offers violence to the procreative process, and sets at naught the imperative to be "fruitful and multiply." (Gn.1:28.) The ostensible basis for the tradition reported by Philo above, appears to be a misconstruction of the sin of Judah's son, Onan - viz., misplaced emphasis upon Onan spilling his seed, whereas the significance of the passage more properly lays in Onan's defrauding his brother's widow by going into her while refusing to raise up children in his brother's place. (Gn.38:9; Deut.25:5-10.) This aside, elective abortion stands squarely condemned no matter how early the pregnancy based upon its destruction and desecration of life's germ.
Given that homicide proceeds upon a qualitative analysis of man's life, while abortion was punished based upon the sanctity of life per se, it would seem that both sides of the present debate over abortion have points that are valid. Although, contrary to what the Vatican asserts, abortion is not murder, neither is it the indifferent act pro-choice advocates would have us believe. The qualitative analysis advanced by abortion rights proponents rightly discerns that the child in utero is not a human in being possessed of the rights of a child born alive. However, while this analysis has its proper place when we reach the question of proportionality between crimes and punishments, it cannot be used as a license for abortion upon demand. That it may not be homicide in no way changes the fact that abortion is an outrage condemned by Heaven and nature, and the conscience of man.


CHAPTER SEVEN

CIRCUMSTANCES WHERE THE LIFE OF THE UNBORN WAS NOT INDEMNIFIED

No work on the subject of abortion would be complete if it neglected to discuss the circumstances under which abortion was permitted by the law, if at all. In a very real sense, however, the question of the lawfulness of abortion is merely one of several related issues involving the sanctity of life in the womb and when it may be expended. In the proceeding chapters we saw how the law placed a stigma upon children conceived from illicit unions. The apostle Paul repeats this in substance when he says that children born to a married believer are holy, whereas other children are unclean, or common. (I Cor.7:14.) Thus God does not view all children alike - he has special regard for the children of his saints. All men approach the throne of grace upon equal terms to be sure, but the seed of the righteous is blessed (Deut.28:4; Ps.37:26; Prov.20:7), and that of the wicked cursed. (Deut.28:18; Ps.21:10;37:28; Isa.14:20,21.) If this is the case with children born of illicit unions and godless men, what would be the case of a child conceived of a capital offense, or whose parent was otherwise condemned to die - would the sin of the parent be visited on the fetus, annulling the sanctity and invulnerability of its life? Hence, to round off our discussion and the scope of this work, these questions too will be taken up.
In Deuteronomy Moses established as a fundamental precept that only the guilty were to be executed for their sins. Innocent parents and children were not to be put to death for the other's acts.
The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers; every man shall be put to death for his own sin. Deuteronomy 24:16
A similar declaration is made in the book of Ezekiel thus:
The soul that sinneth, it shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son; the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him. Ezekiel 18:20
These passages contain the basic premise of the law that innocent blood was not to be spilt for the crimes and wrongs of another. Only the offender was to die. But there is another and more subtle lesson in the passages. The word translated "children" and "son" in the texts is from the Hebrew "ben", meaning that which is born, born of a woman; male child, or son. Hence it is a term that explicitly refers to one born alive. (cf., Lev.22:27-28 where the term is applied to the newborn young of animals.) Thus said, the unborn do not come within the terms of the prohibition against the child being slain for his parent's sin or crime. The further question, of course, is whether this implies protection only for children born alive, such that the fate of a fetus was determined by the fate of its parent. Seemingly it does.
In the eighteenth and twentieth chapters of book of Leviticus are set out numerous offenses against modesty and decency. The offenses range from adultery and incest to sodomy, beastialty, and carnal knowledge of a woman during her period of separation and purgation. Although the offenses set out in both chapters eighteen and twenty are substantially identical, the chapters differ in that the twentieth alternates the punishments between death (vv.10-15), cutting off (vv.17-18), and being or dying "childless."
This should be compared with the eighteenth chapter where the punishment assigned to all of these forbidden unions is described as a "cutting off" saying "whosoever shall commit any of these abominations, even the souls that commit them shall be cut off from among their people." (Lv.18:29.)
Scholarship is divided as to the full significance of the phrase "cut off" or "cut off from among their people." One of the difficulties posed by the phrase is that it is used in a wide variety of contexts. For example, Zechariah 9:10 speaks in terms of God bringing peace to his people by cutting off the chariot, the horse, and the battle bow. On the other hand, it also occurs in I Sam.2:33 where the decedents of Eli are referred to as being cut off from serving as priests at God's alter. Hence the phrase is susceptible of both blessing and cursing. Moreover, even where the context makes clear that the latter is intended, the further problem remains to determine what punishment is indicated; whether death or some other, such as banishment and exile. The better view, however, probably is that death, coupled with attainder and corruption of blood is intended unless the context requires otherwise. Certainly, this is the most natural construction we are wont to assign to the phrase. Indeed, the first verses of Leviticus make clear that capital punishment and cutting off were virtually synonymous:
Again, thou shalt say to the children of Israel, whosoever he be of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed unto Molech; he shall surely be put to death: the people of the land shall stone him with stones. And I will set my face against that man, and will cut him off from among his people; because he hath given of his seed unto Molech, to defile my sanctuary, and to profane my holy name. Leviticus 20:2-3
Other examples of this usage occur in reference to the death of our Lord saying
He was taken from prison and judgment; and who shall declare his generation? for he was cut off out of the land of the living: for the transgression of my people was he stricken. And he made his grave with the wicked, and with the rich in his death. Isaiah 53:8-9
Daniel says the same thing, stating that the Messiah would be "cut off." (Dan.9:26.) And that being cut off implicates maintaining one's name and possession of paternal lands in Israel is seen in part from the law's commandment that a near kinsman marry the widow of a deceased Israelite who died childless so that his name "not be cut off from among his brethren." (Ruth 4:10; cf., Deut.25:6.) That this was the understanding of the Jews appears from what Josephus says in treating of the laws appearing in Leviticus eighteen and twenty touching forbidden unions:
As for adultery, Moses forbade it entirely, as esteeming it a happy thing that men should be wise in the affairs of wedlock; and that it was profitable both to cities and families that children should be known to be genuine. He also abhorred men's lying with their mothers, as one of the greatest crimes; and the like for lying with their father's wife, and with aunts, and sisters, and sons' wives, as all instances of abominable wickedness. He also forbade a man to lie with his wife when she was defiled by her natural purgation; and not to come near brute beasts; nor to approve of the lying with a male, which was to hunt after unlawful pleasures on account of beauty. To those who were guilty of such insolent behavior, he ordained death for their punishment. Antiquities, bk.III,ch.xii,sec.i (Whiston ed.)
Understanding how the Jews construed the instruction to cut off certain offenders is important in that one question that naturally arises is whether children conceived from unlawful unions were to perish with their parents or, whether punishment was to be deferred until the child was born. A strong argument can be made that it was the former and not the latter.
And if a man shall lie with his uncle's wife, he hath uncovered his uncle's nakedness; they shall bear their sin; they shall die childless. And if a man shall take his brother's wife, it is an unclean thing; he hath uncovered his brother's nakedness; they shall be childless. Leviticus 20:20,21
It is conceded that the phrase "die childless" is susceptible of several constructions. For example, it could mean no more than that the children of these unions were attainted similar to other illegitimate issue. That is, as we are wont to describe illegitimate children as being "fatherless," so the scriptures here may employ a similar euphemism in reference to the parents saying they are "childless" for purposes of maintaining a name and place in Israel. Similar usage occurs in reference to Coniah the son of Jehoiakim saying "Thus saith the Lord, Write ye this man childless, a man that shall not prosper in his days; for no man of his seed shall proper, sitting upon the throne of David, and ruling any more in Judah." (Jer.22:30.)
On the other hand, even if this or a like construction is placed on the phrase "die childless," this would not preclude the possibility that the offenders, if caught, were to be capitally punished, and this though the woman be pregnant with child. In other words, the phrase is broad enough to contemplate both the case where the offense remains undetected until after the birth of a child, and where the offenders are discovered in the act or shortly thereafter. In the former case, the child would escape with its life, but be excluded from the covenant community; in the latter it would perish with its mother.
Judging from the intertestamental books of Wisdom and Ecclesiasticus, trials of this sort were not unknown to Israel, saying that "children begotten of unlawful beds are witnesses of wickedness against their parents in their trial." (Wisdom 3:6; cf., Ecc.23:24.) Moreover, judging from the case of Judah and Tamar, circumstances where a woman pregnant with child was sentenced to die for an illicit union were also known. Omitting unnecessary details, it is sufficient to simply to note that Tamar conceived child by her father-in-law, Judah, under circumstances excusing or extenuating each party's guilt for what was otherwise an adulterous and incestuous union. What follows is the account of what transpired when Tamar's condition was found out.
And it came to pass about three months after, that it was told Judah, saying, Tamar thy daughter-in-law hath played the harlot; and also, behold, she is with child by whoredom. And Judah said, Bring her forth, and let her be burnt. When she was brought forth, she sent to her father-in-law, saying, By the man, whose these are, am I with child; and she said, discern, I pray thee, whose are these, the signet, and bracelets, and staff. And Judah acknowledged them, and said, She hath been more righteous than I; because that I gave her not to Shelah my son. And he knew her again no more. Genesis 38:24-26
From this account it may be seen that the crime of adultery was punishable with death and that the child conceived of the union, although it was fully three months old, would, of necessity, perish with its mother. Nor was this act of Judah in pronouncing sentence upon Tamar though she was pregnant an isolated or aberrational incident. The law of Moses, promulgated hundreds of years later, also spoke to this issue. If a man was betrothed to a woman and upon consummation of the marriage it appeared that she was not a virgin, the law instructed that a trial of the accusation might be had and, if it were shown that she had turned aside and committed adultery, then she was to be stoned. (Deut.22:13-21.) Now, there are any number of ways that a woman's lack of virginity might appear; not the least of which is an untimely pregnancy. Thus, if a woman were pregnant with another man's child at the time of her marriage and an accusation was made against her it is plain that in stoning the woman the embryo or fetus would die with her. The Gospel of Matthew records that Joseph contemplated this very thing when it was learned that Mary was pregnant with the Christ child before they celebrated the marriage, albeit he determined not to make her a public example and was minded to put her away privately. (Matt. 1:18-20; cf.Deut.22:13-21; 24:1.)
On this note, what Philo says in his work on the virtues should probably be addressed. As mention in passing earlier, Philo found in the prohibition against killing a newborn lamb or the like and its mother the same day (Lv.22:27,28) the further prohibition against the sacrifice of pregnant beasts. (See p.--, above.) Philo uses this as an argument against the Greek practice of infanticide, reasoning that the invulnerability of the life in the womb bears evidence of its greater sanctity once born. He then continues thus:
"For it is the height of unholiness to kill mother and offspring on the same occasion and on the same day. It was on this principle, I think, that some legislators introduced the law that condemned women who commit deeds worthy of death should, if pregnant, be kept in custody until the child is born, lest their execution should carry with it the destruction of the life within the womb. These decrees of theirs apply to human beings, but Moses rising to a further height extended the duty of fair treatment even to irrational animals, so that by practicing on creatures of dissimilar kind we may show humanity in a far fuller measure to beings of like kind to ourselves..." De Virtutibus, sec.139,140
The inference may be drawn from what Philo says that the law of Moses purportedly forbade the execution of a woman with child. In saying that some legislators introduced laws staying execution until the child was born, Philo tacitly admits, however, that no such law can be identified in the Pentateuch. To the extent such a law existed at all, it depends upon an extension of the prohibition against the sacrifice of pregnant beasts. Yet the law of Moses nowhere prohibited the sacrifice of an animal pregnant with child. In the first place, the command not to slaughter an ox or sheep and its young applied only to offspring born alive:
When a bullock, or a sheep, or a goat, is brought forth, then it shall be seven days under the dam; and from the eighth day and thenceforth it shall be accepted for an offering make by fire unto the Lord. And whether it be cow or ewe, ye shall not kill it and her young both in one day. Leviticus 22:27,28
The word "young" in the Hebrew is the word "ben", the same word used in the passages from Deuteronomy and Ezekiel prohibiting putting the children to death for the parent's sin. The term explicitly refers only to that which has been born. Hence there is no suggestion that pregnant animals are treated of here. However, even if for argument's sake it were conceded that the passage precluded the sacrifice of pregnant animals, this would not mean that pregnant animals were prohibited from slaughter in other contexts. There were any number of provisions in the law instructing that animals be destroyed for various purposes. For example, for having spilled the blood of man or where such had been vilely abused for carnal gratification. (Ex.21:28-32; Lv.20:15,16.) That a pregnant animal condemned to die in either of these cases was to receive a stay of execution pending birth of its offspring simply has no Scriptural precedent. Yet, before the prohibition against sacrificing a pregnant animal can be extended to stay the capital punishment of a pregnant woman, it must first be shown to apply in the context of destroying attainted beasts. If it cannot be shown to apply to beast marked for destruction, no justification exists for the law's extension to humans. Hence that the prohibition was applicable beyond the immediate context of sacrifices is highly doubtful. Animals that were crippled or maimed were prohibited from sacrifice also. (Lv.22:24.) If pregnant women were exempt from execution based upon what is said in Leviticus chapter twenty-two, then it might just as easily be argued that the crippled were exempt from execution on this basis also. All things considered, it seems plain that there simply is no support based upon these texts for the proposition that the law of Moses required a stay of execution for a woman with child - even assuming that is Philo's meaning, which itself is not clear. To the contrary, every indication is that no such rule obtained.
That the life of the unborn was inexorably tied to the fate of its mother also appears from the "law of jealousy" set out in Numbers chapter Five. This law provided for the case of a wife whose husband suspected, but could not prove, she had been guilty of adultery. In such cases the law instructed that the husband might bring her to the priests who would make trial of the matter by pronouncing a curse over the woman if she had strayed. The curse was to be written with ink and blotted out with water, then mingled with the dust of the temple floor and given to the woman to drink. The words of the curse were thus: "The Lord make thee a curse among thy people, when the Lord doth make thy thigh to rot, and thy belly to swell; and this water that causeth the curse shall go into thy bowels, to make thy belly to swell, and thy thigh to rot." (Num.5:21,22.) If the woman was guilty the terms of the curse came upon her; but if she had been chaste, then she might conceive and give her husband child. (v.28.) Of particular interest to us here, however, are the terms of the curse. Unfortunately, the curse is couched in euphemisms that render its meaning somewhat obscure, but the fact that if the woman were innocent she would conceive and bear children suggests that her guilt was to result in the obverse; i.e. she would be barren or miscarry the interloper's child.
The Hebrew word translated "rot" in the curse is "naphal", a word we encountered earlier and which serves as the stem for nephel, which signifies a miscarriage or abortion. The Hebrew word for "thigh" in the curse recited in Numbers is "yarek", and is used symbolically to signify strength and stability. Thus Sampson is said to have smote the Philistines "hip and thigh with a great slaughter." (Judges 15:8.) The thigh was also where a man wore his dagger and sword. (Ex.32:27;Judges 3:16,21;Ps.45:3.) By the same token, Jesus is pictured in the Revelation riding upon a white horse, victorious, bearing the name upon his thigh "King of kings and Lord or lords". (Rev.19:16.) On the other hand, the thigh was also a euphemism for the loins or generative parts. Thus in Genesis 46:26 the offspring of Jacob are referred to as springing from his "thigh". (cf.Ex.1:5; Judges 8:30.) Moreover the thigh, or loins, were used in ancient Hebrew society as a token of veracity in giving an oath. Hence when Abraham took an oath of his steward that he would not take a wife for Isaac of the women of Canaan, he made him swear by placing his hand under his "thigh". (Gen.24:2,9;cf.47:29.) Finally, the image of the woman's thigh falling away bears a strong resemblance to the historical narrative of Jacob where the Angle smote him in the hollow of his hip and thigh causing it to dislocate. (Gen.32:25.) In saying that the waters would enter the woman's "bowels", the word "meah" is used. The term is used to signify the source of procreation and the womb many times in the Bible. (Gn.15:4,25:3; II Sam.7:12; Isa.49:1.) This is also true of the word "beten", translated in our English version saying her "belly" would swell. (Gen.25:23,24;38:27.) Taken together, in thus saying that the water would enter the woman's bowels and her belly would swell and her thigh rot and fall away the sense seems to be that she would contract something akin to descensus uteri (Lat., a falling of the uterus) a condition wherein there is a defect in the pelvic floor allowing all or part of the uterus to protrude out of the vagina. Obviously, to conceive seed with such a condition is impossible. Moreover if a woman were pregnant at the time she contracted this ailment she could not carry a child to term, resulting in miscarriage or abortion.
The case of Jehoram is remarkably similar. In that case Elijah wrote to Jehoram saying that because he had made the inhabitants of Judah and Jerusalem go whoring after other gods, the Lord was going to smite his children and wives with a plague and that Jehoram would be stricken by a disease until "thy bowels (meah) fall out by reason of the sickness day by day." (II Chr.21:12-15.) Thus, because of Jehoram's spiritual fornication he was stricken with a plague by which his bowels fell out, perhaps through the floor of his abdomen into his loins by a hernia, much as the adulterous woman's uterus.
Another case that is similar to the curse and its apparent effect appears in II Kings 2:19-22 where the soil and waters of Jericho are described as causing barrenness and miscarriage or abortion - almost as if the situation of the city were a direct allusion to the dust of the temple floor and the water made bitter by blotting out the curse. In any event, there is ample grounds to understand the curse as causing miscarriage or sterility in the woman; the former if she were pregnant with the adulterer's seed, the latter if she were guilty, but without child. This interpretation is shared by the translators of the New International Version. As an alternative for the language of Numbers 5:22 - "so that your abdomen swells, and your thigh wastes away" - the translators of the NIV placed these words in the margin: "causes you to have a miscarrying womb and barrenness." If this is correct, the trial of bitter water represented little more than a formula for the abortion of the adulterer's seed, and makes plain that the fate of the unborn was in no way indemnified against the sin of its mother.
Moving to the case of therapeutic abortion, we begin by noting that childbearing is filled with risks to the life of the mother even with the modern advances of medicine. Obviously, in ancient times the risks were potentially greater. Hence, the Bible records several instances where mothers died in result of live birth. (Gen.35:17,18; I Sam.4:19,20.) The question thus becomes whether the law permitted alleviation of this risk to the mother by terminating the pregnancy, or were they required to stand idly by, content to let nature take its course? The fact that the Bible records instances where women actually perished in childbirth and none where the pregnancy was terminated, will suggest to some that therapeutic abortion was neither practiced nor allowed. However, the want of precedent demonstrating the practice of therapeutic abortion proves little or nothing. To the contrary, where a woman had "hard labor," because it could not be known that either the mother or child would survive the process of live birth, the law's permission to take the young seems clear.
If a bird's nest chance to be before thee in the way in any tree, or on the ground, whether they be young ones, or eggs, and the dam sitting upon the young, or upon the eggs, thou shalt not take the dam with the young; but thou shalt in any wise let the dam go, and take the young to thee; that it may be well with thee, and that thou mayest prolong thy days. Deuteronomy 22:6,7
This passage seems to stand for the proposition that the mother was to be spared at the expense of her offspring. They cannot survive without her, but she may survive to bear again. Hence the unborn that might only potentially live and be saved were expendable where necessary to save the life that actually was. That, in principle, texts such as this were applicable beyond their immediate context and represented lessons transferable to the lives and dealings of men, may be seen from the Apostle Paul's assurance in Ist Corinthians.
Say I these things as a man? or saith not the law the same also? For it is written in the law of Moses, thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God take care for oxen? Or saith he it altogether for our sakes? For our sakes, no doubt this is written... I Corinthians 9:8-10
If passages in the Old Testament such as the prohibition of muzzling an ox treading out corn were in fact lessons for men, then it is hard to see what situation the law's command to spare the mother at the expense of her young was intended to reach if not the issue of abortion. It cannot be an allusion to a rule of war, since the Israelites were either permitted to take both the mother and children as the spoils of war, or else, what is the opposite of releasing the mothers, required to slay such women as had known man by lying with him. (Compare Deut.20:14 with Num.31:15-18; cf.Deut.21:13.) Moreover it cannot speak to the issue of slavery as the nation was permitted to have servants of both mother and child. (Ex.21:4.) As purely a matter of conservation the law seems ill-founded, given that our own laws generally preclude taking game below a certain age, and never in the brooding season. Thus, if there is a better application of the passage other than abortion one would be glad to hear it. Until then, it seems that the interpretation offered here rings true. [4] A mother bird will abandon her nest in order to save her life. It seems inconceivable that God would require different of men.
Another case where the law's consent that the unborn be taken may be deduced from the law of rape. In this case, the law ordained that for the rape of a woman engaged to marry only the man be slain. "But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death; for as when a man riseth against his neighbor, and slayeth him, even so is this matter" (Deut.22:26.) Now, where the woman consented to have intercourse she also was to be put to death, for it was adultery and, as we have seen, the adulterer's child was to perish with her. If the adulterer's seed was thus to be destroyed where the woman consented to the unlawful union, it is difficult to imagine that his seed should be preserved where he has committed forcible rape. Can it reasonably be supposed that the victim, either alone or together with her husband, was expected to rear up the rapist's offspring? Rather, it seems more likely that resort might be had either to the passage in Numbers regarding the waters of the curse, or to the principle of the mother bird hatching out her eggs, as authority for permission that a pregnancy resulting from rape be terminated. "For he found her in the field, and the betrothed damsel cried, and there was none to save her" (v.27); hence "thou shalt in any wise let the dam(sel) go, and take the young". Jewish authorities are in accord, abortion generally being construed permissible in these circumstances, provided the child had not yet emerged into the world. (Oho.7:6; Rashi and Meiri, Sanh.72b.)
In conclusion, there is ample precedent for the lawful use of abortion where necessary to save a mother's life and in circumstances of rape or, what it frequently the same, incest. Additionally, staying execution of a pregnant woman until her child was born is a piece of sentimentality the Mosaic law nowhere appears to have indulged; particularly where the child was conceived the sexual union serving as the underlying offense.



CHAPTER EIGHT

CANON LAW, COMMON LAW, AND
ROE VERSUS WADE

The Court's opinion in Roe v. Wade accommodated feminists by conferring upon women the right to terminate a pregnancy without interference from the state, or even the father. In so doing, considerable emphasis was placed upon the fact that the common law did not punish abortion unless the child had quickened. Not content with this, however, the court was also at pains to cast doubt upon whether abortion of even a quickened fetus was ever firmly established as an offense at common law. The court's objective was transparent: If it could be shown that our medieval forebears granted women a right to abort her offspring without molestation from the state, a basis could be laid for holding that this right became part of the law of the land when the Bill of Rights was ratified in 1791.
The court takes its lead on this note from an article by Cyril Means, associate professor at New York Law School, entitled "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty? (17 NYL F 335 (1971).) The "penumbral" right the author refers to is the "right of privacy" the U.S. Supreme Court found to emanate from certain provisions of the Bill of Rights, particularly the Fourth Amendment guaranty against unreasonable search or seizure of persons, houses, papers, and effects. It is this right the court has used to strike down laws regulating the use of contraception, marriage, procreation, childrearing, and the like. The article was timed to appear just prior to the court's decision in Roe v. Wade, and was intended to steer the court's decision. Apparently it had its desired effect - Means was cited and relied upon heavily by justice Blackman, writing for the court.
Means argues that the comments of Lord Coke reproduced in the first chapter of this work (p.--, above) were spurious - that Coke's report that abortion of a quickened fetus was a "great misprision" at common law was a mere fabrication whipped up to establish secular jurisdiction over this traditionally ecclesiastical offense. However, the argument is all but convincing.
Means' argument is constructed around two 14th century cases he is convinced are proof that abortion of even a quickened fetus was not an offense at common law. So convinced was Means that these cases clinched his point, he takes the fact Coke also cited them as evidence of Coke's dishonesty. However, it would seem that in making this charge Means failed to pause for mature reflection.
First, Coke cited several authorities in the passage in question without indicating what proposition he intended each to demonstrate. Means merely assumes Coke cited the cases in question in support of the proposition that abortion was a misprision, but that this was Coke's meaning is not clear. The better view is that it was not.
The cases, Y.B. Mich. I Edw. 3, f. 23, pl.18 (1327) and Y.B. Mich. 22 Edw. 3 (1348) (the latter reported in Fitzherbert's Grande Abridgement), both involved indictments for killing a child in its mother's womb. The first simply reports that the judges were not prepared to indict the man for felony. The second is to the effect that the accused was not to be arrested upon the indictment because it could not be known whether he was responsible for the child's death - that is, the judges felt there was insufficient evidence to warrant arrest. Thus, neither case states in holding or dicta that abortion was not a punishable offense. To the contrary, the second case might arguably be cited for the proposition that, where there was competent evidence of the cause of death in the fetus, a misdemeanor complaint would have obtained. How then does Means conclude these cases affirm abortion was not a crime at common law? Not from what the cases themselves say. Rather he relies upon the passing statements of two commentators who wrote hundreds years later.
The first is Stanford (1557) who states "if a man killed a child in the womb of its mother: this is not a felony, neither shall be forfeit anything..." The statement, "neither shall he forfeit anything" is seized upon by Means as proof that abortion was not an offense at common law. In support of this he cites Stanford elsewhere to the effect that for conviction of a misprision a man suffered the forfeiture of certain chattels during his life. Hence, Means concludes, if a man suffered no forfeiture where he caused a child to die in its mother's womb, abortion must not have been a misprision at common law. Stanford's comments were relied upon and repeated verbatim by Dalton (1648) - Mean's second authority. The problem with Mean's hypothesis, however, is that the cases Stanford was treating of nowhere state that the accused would suffer no forfeiture or, for that matter, other punishment. Wittingly or unwittingly, Stanford merely slipped that assertion into his text. From there it was picked up by Dalton. Apart from Means, no other commentators or cases appear to have given it any credit. For Means thus to have seized upon so flimsy an authority to build his case for a common law liberty to abortion seems incredulous.
To what purpose did Coke cite these cases? Probably for the only proposition they confidently affirm - viz., that abortion was not murder or felony. To demonstrate the proposition that abortion was a great misprision Coke appears to have relied upon the following statement, which he also cited, written by Bracton in the 13th century:
If there be anyone who strikes a pregnant woman or gives her a poison whereby he causes an abortion, if the fetus be already formed or animated, and especially if it be animated, he commits homicide. Bracton, The Laws and Customs of England, III,ii,4
Apparently Coke took Bracton's use of the term "homicide" to mean some lesser form of that offense than murder - a conclusion shared by Blackstone who construed Bracton to signify manslaughter.
Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as a infant is able to stir in the mother's womb. for if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor. I Blackstone, Commentaries 125,126
To Blackstone, Coke, and Bracton may be added Hawkins, Hale, and Fleta - all who reported that abortion was an offense at common law - in addition to a goodly number of cases stating as much in dicta. Means, on the other hand, cites only two obscure authors and cases - neither of which so much as actually state abortion was not a criminal offense. That the court in Roe v. Wade would thus place any stock at all in Mean's article only serves to demonstrate how far it was willing to reach to justify a desired result.
But there is another aspect of the court's justification of its decision in Roe v Wade that belies its duplicity. Even if it could be shown that abortion was never firmly established as a common law offense, this would not justify the conclusion that medieval society deemed it an indifferent act, escaping all punishment. As already noted, Christianity was part of the laws of England. Hence, for the better part of the history of the English people, Britain's national institutions included both secular and ecclesiastical courts and laws, as did most of Europe. Many offenses punishable today were not cognizable at common law. For example, incest, adultery, fornication, prostitution, and sodomy were left to ecclesiastical authorities to punish and deal with. Abortion was also at least nominally among this number. For enforcement of the judgement and sentence of the ecclesiastical courts the king's law afforded final assistance and sanction: an individual excommunicated by the court Christian, and refusing for forty days to submit to the fine, humiliation, whipping, or other penance imposed, could be arrested and imprisoned at the instance of the bishop upon supplication to the king's court. It has even been suggested that this is the significance of Paul's statement to the Corinthians (I Cor.5:5) that they should "deliver such a one unto Satan" i.e., where a man refused to repent, he was to be excommunicated and accused to secular authorities. In any event, that punishment of abortion among the number of secular, common law crimes may never have been firmly established therefore should neither surprise nor alarm us. As we have seen, the law of Moses nowhere included abortion among the number of crimes falling within the ambit of the lex talionis, but left it to ecclesiastical authorities to deal with. That medieval society should have grown up along similar lines seems natural given Christianity's place in the development and civilization of our forebears. Hence, given that the ecclesiastical arm of medieval governments punished illicit abortion, and this without regard to quickening, what need was there for secular authorities to punish it also? Indeed, it is not until the influence of England's established church began to wane that the secular arm of the government found it necessary to address the offense. The preamble to the 1803 legislation, 43 Geo 3, c 58, England's first abortion statute, thus recites "no adequate means have hitherto been provided for the prevention and punishment of such offenses." Hence, abortion had always been an offense, it simply happens that it typically fell in the first instance to the jurisdiction of the canon, rather than the common law courts. For the Court in Roe v. Wade to have thus focused exclusively upon how the common law courts dealt with abortion was selective at best, dishonest at worst. The excesses of a former age that reduced the Christian church to a mere courtesan and consort of kings may well recommend the wisdom of our forebears to withhold official endorsement to a particular denomination among those professing Christ, but should offer no impediment or objection to insisting that God's word and judgments be given their proper place among our national institutions. The court in another place has ruled that there is no constitutional right to commit homosexual sodomy, yet this too was originally an offense left to the courts Christian to punish. That in case of abortion it should thus find a right to commit such acts with impunity only serves to show that its decisions are couched more in terms of being politically correct than historically consistent and forthright. In fine, the court was merely looking for a pretext to justify its legalization of that which had been a crime in Anglo-American jurisprudence from time out of mind.
But whether the common law or, for that matter, ecclesiastical law in Europe and England punished abortion and, if so, how, perhaps begs the issue. The question for Christians must be how God viewed the offense. If the severity of the punishment is any indication, abortion was a crime of grave proportions under the laws revealed to Moses. As neither God nor the substantive nature of the offense have changed, it cannot be but that illicit abortion still stands squarely condemned. Hence, to restore society's collective abhorrence for the act and assess its punishment appropriately must be the immediate task of all that fear God and would seek his blessing upon their native land. As with Blackstone, may it one day be said again that "Christianity is part of the laws of America."
[1]Apparently, Jerome was of a similar opinion and rendered the Hebrew accordingly:
"si rixati fuerint viri et percusserit quis mulierem praegnantem et abortivum quidem fecerit sed ipsa vixerit subiacebit damno quantum expetierit maritus mulieris et arbitri iudicarint sin autem mors eius fuerit subsecuta reddet animam pro anima oculum pro oculo dentem pro dente manum pro manu pedem pro pede"
[2]/ That Philo, an Alexandrian Jew schooled in the learning and philosophy of the Greeks, should refer to an infant in ventre sa mere as a "plant," suggests Aristotle's formula of "vegetable, animal, rational" may well have influenced his thinking on this score. (cf., De Congressu Quaerenae Eruditionis Studies, sec.138.)
[3]Jewish tradition has it that Isaac was born in the seventh month. Hence, according to the legand, children born in the seventh month survive out of deference to Isaac whereas those born in the eighth month succomb. (See generally, Pseudo Philo 23:8.)
[4]According to Pseudo Philo Deut. 22:6 was taken in reference to woman and child, not a dam and her young. (Ps. Philo 53:10.)

The Simmons Family

The Simmons Family