Anti-abortion in Texas, the Bible, and the Middle Assyrian Laws

The new Texas abortion law took effect last week, prohibiting abortions after the presence of a fetal heartbeat is detected, which can occur as early as six weeks into a woman’s pregnancy (exceptions for medical emergencies only). About 85 to 90 percent of women who get an abortion in Texas are at least six weeks into their pregnancy, so this law will have serious impact. It violates Roe v. Wade, which prohibits states from banning abortion before a fetus is viable, typically around six months (not weeks) of pregnancy. The law also has a draconian provision that allows private citizens to sue those who perform or aid the abortion in violation of the law, providing for at least $10,000 for each successful suit. That the Supreme Court has declined to get involved isn’t encouraging, and when you add to this the Mississippi abortion case to be heard by the Court, I seriously wonder if Roe v. Wade will be overturned next year.

American anti-abortionists tend to be Christian, and it’s worth revisiting what the bible says on the subject. Chris Heard, an anti-abortionist himself, summed it up many years ago:

“Let me be completely clear and honest: I despise abortion. I think that a biblically-informed valuation of human life leads one in that direction. But I also object to bad exegesis. There is no biblical proof-text against abortion. Deuteronomy 30:19 (“choose life”) has nothing to do with abortion; it has to do with being party to God’s covenant with Israel. Psalm 139:13-18 is less relevant to the issue than most people think; a careful reading of that psalm reveals that the “mother” in whose “womb” the psalmist was known by God is Mother Earth (notice the parallelism between “my mother’s womb” and “the depths of the earth” in the inclusio of vv. 13-15). Exodus 21:22-25 is very difficult, but it certainly does not speak directly to abortion; at most, it relates to an accidentally induced miscarriage, though it may refer to a premature birth. That interpretive decision is crucial, and I’m not sure how to resolve it. As far as I can tell, the only biblical passage that I know of that directly mentions a practice like we would think of as abortion curses a man who did not practice it on the fetal Jeremiah (Jeremiah 20:14-18).”

Indeed, in the Jeremiah passage the prophet curses the day he was born and laments the fact that he was not aborted, which is hardly of help to the anti-abortionist cause.

The Exodus passage, however, may be resolvable, in a way that both helps and undermines the anti-abortionist cause. It’s an assault-and-miscarriage law, which on the face of it does seem to support the idea that late-term abortions are murder, while implying that early-term abortions are mere property crimes against the father. In the former case, the proper redress is execution or mutilation (eye for an eye, etc.). In the latter case, the proper redress is financial compensation. The key lies in what the text means by “harm following” the premature birth, and by “harm not following” the premature birth. Richard Carrier writes:

“If a fully-formed fetus comes out, meaning a viable baby who dies from the premature birth, that’s ‘harm follows,’ and anything else is equivalent to a mere miscarriage, in which case ‘harm does not follow.’ No viable baby was lost. This makes clear that only what we would call a late term abortion is murder; and indeed, the Bible doesn’t really even say that as such, since this is an involuntary abortion (an assault), but it’s reasonable to assume Jewish courts would deem a woman who sought an abortion as then the one committing the crime—either a property crime against her husband if she aborts before the third trimester, or murder if afterward. So this passage does support declaring late-term abortions murder; but it actually is declaring all other abortions permissible — all you need do is compensate the father for the resulting financial loss and (maybe) pay a tax. Essentially, as worded, women could legally pay their husbands and the state to let them have an abortion. That’s God’s law.”

That’s a reasonable inference, though hard to be too confident about, since the bible never generally speaks about abortion. Brian Rainey in fact notes the revealing contrast between the vague biblical view and the clear-cut Assyrian one:

“There is an abortion ban in the Middle Assyrian Laws, Tablet A (MAL A), a law code from ~1076 BCE that predates the Bible. It’s the earliest known abortion ban in the world, I believe. Like the Bible, MAL A contains laws about what should happen when a physical assault results in accidental miscarriage (§21, 50-52). These laws are similar to Exodus 21:22-25. MAL A’s harsh anti-abortion law immediately follows its accidental miscarriage laws:

If a woman aborts her fetus by her own action…they shall impale her, they shall not bury her. If she dies as a result of aborting her own fetus, they shall impale her, they shall not bury her. If any persons should hide that woman because she aborted her fetus…[And the text breaks off]” (§53, Roth’s translation).

It seems that MAL A, like Texas’s recently passed anti-abortion law, encourages snitching on people who have abortions, though sadly the text is broken so we don’t get details.

The Bible has an assault-and-accidental-miscarriage law in Exodus 21:22-25. But unlike MAL A, an anti-abortion law does not follow it. Clearly, such a law would have been conceivable. The Bible could’ve done what MAL A did and included an explicit anti-abortion law, but didn’t.”

Which is revealing. Relative to their neighbors, the ancient Israelites weren’t so aggressively anti-abortionist.

I’m strongly pro-choice and don’t look to the bible for guidance on the subject. But I recognize that many Christians do seek biblical justification for their point of view — both pro-choice and anti-abortion believers — and I’m sympathetic to those on either side who operate out of a code of empathy. With Chris Heard, I believe that any biblical case for anti-abortion would have to be a “cumulative theological case”, rather than a direct case based on proof texts, since the specific texts of the bible are virtually useless except perhaps for Exodus 21 (which both supports and undermines an anti-abortionist argument). More revealing is the reputation of early Jews and Christians, who were known in antiquity for despising infanticide. Constantine may have even adopted Christianity, at least in part, to halt the population decline in the Roman empire. As early as the end of the first century, people like Tacitus and Pliny the Younger complained about the problem of childlessness and the common view of children as a burden; baby girls were especially unwanted and discarded. The only groups in the empire that were increasing by normal demographic process were the Christians and the Jews (in no small part because they extended the sanctity of life to children, infants, and probably the unborn), and Constantine may have been trying to capitalize on this.

Anti-abortion, in other words, is not biblical in the way that homophobia, post-tribulation eschatology, and New Testament pacifism are. It’s more biblical in the way that anti-racism is. A convincing case can be made for it by building on many cumulative biblical ideas. A pro-choice position, on the other hand, has a more uphill battle, but certainly not an impossible one. It could rely on the general silence of abortion in the bible, argue that Exodus 21 implies that only late-term abortions amount to murder, and perhaps extend arguments based on the Torah’s wider concern for widows and orphans, the poor, etc. — women and children, in other words, who end up suffering the most when abortion is not a legal right.

With regards to the particular lawsuit provision of the Texas law, I find it appalling that anyone in Texas can sue anyone else who performs or aids an abortion after 6 weeks. It also puts the conservative justices (except for Clarence Thomas) in an awkward position, since they recently ruled that a lawsuit doesn’t have standing unless direct concrete harm to the plaintiff can be proven. Thomas rightly dissented with the liberals, blasting his fellow conservatives for overturning a precedent that goes back to America’s founding: federal courts had never required plaintiffs to demonstrate direct concrete injury. But now that this is the judicial precedent, the conservative justices (aside from Thomas) should be condemning the Texas law on their own logic. In any case, I can’t see a biblical base for this draconian lawsuit provision, let alone a constitutional one.

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