Dvar Torah for Parashat Mishpatim (Exodus 21:1 - 24:18) given at Temple Israel, Duluth on Friday evening 1/24/14
Earlier this week our country marked the forty-first anniversary of the historic United States Supreme Court decision in Roe v. Wade. As I’m sure you are all well aware, this decision struck down then existing laws that had sought to deny women the right to abort a pregnancy. Since then, the holding in Roe v. Wade has been progressively whittled away by statutes and court decisions narrowing its scope. Opponents of abortion rights, mostly though not entirely on the political right, have remained determined all these years to whittle away abortion rights further. Indeed, the possibility exists that a current or future U.S. Supreme Court might seek to overturn Roe v. Wade in its entirety.
What does this have to do with this week’s Torah portion? From a certain perspective, nothing at all. Our nation, thankfully, is a nation without an established religion. The particular tenets of any particular organized religion, including our own, do not determine the holdings of our secular courts. Rather, the courts are supposed to base their interpretations of law on the provisions of the United States Constitution and judicial precedent. Our religious beliefs and practices teach us how to live a good and moral life, but, as citizens of a secular republic, we try to live in harmony with fellow citizens who may have a variety of views on a variety of moral matters.
All that being said, Judaism does have something to say on the question of abortion. In this week’s Torah portion, Parshat Mishpatim, we are presented with a hypothetical case of two men who are fighting with one another, who accidentally injure a pregnant woman bystander. The Torah states that if the woman as a result has a miscarriage, then the person who caused the miscarriage is liable to a monetary fine (Ex. 21:22). However, if the mother herself dies, then the person who caused the damage is liable to the death penalty.
Jewish tradition derived from this the general principal that a fetus is not considered a person in the same way as one who has been born. For if the fetus were a person, then the person who caused the miscarriage would have been liable to the death penalty.
Of course this case doesn’t deal directly with intentional abortion. For that scenario, we look to the Mishnah, the codification of Jewish law that was put in its final form in approximately 200 C.E. In Tractate Ohalot of the Mishnah, Jewish law provides that “If a woman suffers hard labor in travail, the child must be cut up in her womb and brought out piecemeal, for her life takes precedence over its life; [but] if the greater part has already come forth, it must not be touched, for the claim of one life can not supercede that of another life.” (Ohalot 7:6)
Later rabbinic jurisprudence provides that abortion is permissible not only when a mother’s life is endangered, but also when the mother’s health would be seriously endangered by bringing the fetus to term. Some halachic authorities include severe mental anguish in this category. All the rabbinic authorities, it seems, agree with the Talmudic teaching, found in Tractate Yevamot 69b, that says that during the first forty days after conception the fetus is to be considered as מיא בעלמא / “mey be’alma” (“mere fluid”) as if a woman were not really pregnant.
In addition, the traditional Jewish authorities tend to be in agreement that the fetus is not considered to be a “nefesh” or “soul” until it is born, and that, prior to delivery, it is considered part of the mother’s body.
The Central Conference of American Rabbis had this to say in a responsum issued in 1985: “The Reform Movement has had a long history of liberalism on many social and family matters. We feel that the pattern of tradition, until the most recent generation, has demonstrated a liberal approach to abortion and has definitely permitted it in case of any danger to the life of the mother. That danger may be physical or psychological. When this occurs at any time during the pregnancy, we would not hesitate to permit an abortion. This would also include cases of incest and rape if the mother wishes to have an abortion.”
However, the responsum was careful to conclude with the observation: “We do not encourage abortion, nor favor it for trivial reasons, or sanction it ‘on demand.’” This view is quoted with favor in a more recent CCAR responsum dated 1995.
Clearly, the extreme positions advocated by some “pro-life” groups are inconsistent with Jewish tradition. Jewish law, both Reform and Orthodox sources would agree, permits abortion sometimes, and even requires abortion sometimes. The bottom line is always the life and health of the pregnant woman. For her life already exists, while the fetus is only a potential life until it is born.
A clergy colleague of mine years ago addressed the subject in a way that resonated for me when that colleague wrote in an op-ed piece that abortion “while sometimes acceptable, is always tragic.” And many of you may remember Bill Clinton’s formulation when he was president that he hoped for abortion to be “safe, legal and rare” – again nodding to the moral complexities of the topic.
When the so-called “pro-choice” side of the issue is taken to its logical conclusion, we sometimes hear the argument being made that it’s a woman’s own body and so she should have the absolute right to treat it as she sees fit, including aborting a pregnancy for any reason. When the so-called “pro-life” side of the issue is taken to its logical conclusion, we sometimes hear it claimed that life begins at conception, so that any interference with a pregnancy is tantamount to murder and should be outlawed.
Traditional Jewish halacha clearly accepts that before a baby is delivered, the fetus is indeed considered part of the woman’s own body. (Indeed, if it’s not too irreverent to mention, you may have heard the old joke that in Judaism the fetus is not considered viable until after it graduates from medical school…)
But all kidding aside, what happens when advances in medical science point to greater sensitivity and cognition on the part of a fetus than earlier generations may have assumed? What value should an expectant mother give to the pain felt by the fetus when she faces the momentous choice of whether she wishes to terminate her pregnancy? What happens when medical advances permit a child to live outside the womb under medical care at earlier and earlier stages of gestation? And what value ought we give to the potential life, even if we don’t consider life to fully begin until it exists outside the womb?
These are all deep spiritual questions to be considered.
And yet, whatever any of us might think or believe in the abstract, the ultimate decision rests with the pregnant woman herself. From my own perspective as a rabbi, as a Jew, and as a human being, I believe that sometimes a woman’s choice to have an abortion is morally correct and sometimes it is morally incorrect. From that perspective, I would distance myself from extremists on either side of the abortion rights debate.
But, the bottom line is, regardless of what I (or anyone else who would not actually be carrying the fetus inside their own body) might think, it is only the woman herself who can be the ultimate judge of her own particular situation. Therefore, in the face of continual attempts by anti-abortion rights activists to overturn Roe v. Wade, we must remain diligent to be sure that it remains the law of the land. And we must oppose attempts by legislators or lobbyists to limit the availability of legal and safe abortion services. For the alternative would be a return for many women to a world of unsafe back-alley abortions.
And so, even to those in our society who would consider a fetus a life, I would say better the loss of one life (that of the fetus) than the potential loss of two lives (that of the fetus and that of the mother) were safe, legal abortions services not available.
The availability of safe, legal abortion services is from my perspective, a matter of pikuach nefesh/ saving a life, and that should trump all other considerations.
Just last week Rabbi David Saperstein, Director and Counsel of the Religious Action Center of Reform Judaism, and Rabbi Marla Feldman, Executive Director of the Women of Reform Judaism, submitted a joint statement to the House Judiciary Subcommittee on the Constitution and Civil Justice in opposition to H.R. 7 – “The No Tax Payer Funding for Abortion Act.” (See http://rac.org/Articles/index.cfm?id=23375&pge_prg_id=16317 )
Here’s an excerpt from their statement to the House Subcommittee. Rabbis Saperstein and Feldman wrote:
"The Reform Movement views abortion as a deeply personal issue and, like most Americans, holds the core belief that women are moral decision-makers in their own right entitled to make fundamental medical and reproductive choices. A woman should make a decision about whether to have an abortion according to her own beliefs and in consultation with her clergy, her family, and her doctor; politicians and ideologues should not make the decision for her. We believe that religious matters are best left to religious communities and individual conscience, and decisions about health, including what constitutes a life-saving procedure, are best left to patients in consultation with physicians.
"We come to these beliefs inspired by the sanctity of life. Our faith tradition teaches that women are commanded to care for the health and well-being of their bodies above all else. Banning potentially life-saving medical procedures and interfering with a doctor's medical decision-making are contrary to the Jewish commandment to protect life. Although an unborn fetus is precious and is to be protected as a potential human being, Judaism views the life and health of the mother as paramount, placing a higher value on existing life than on potential life."
By the way, Rabbi David Saperstein will be the keynote speaker on Thursday, March 13th at the Joint Religious Legislative Coalition “Day on the Hill” at the State Capitol in St. Paul. Admittedly, abortion rights will not be among the topics covered that day given the difference of views among the various Christian, Muslim and Jewish organizations affiliated with the JRLC.
This year the JRLC Day on the Hill activities will focus on efforts to regulate Payday Lending and to raise Minnesota’s minimum wage, among other legislative goals currently being finalized. CHUM is sponsoring a bus and I hope you will join me and your neighbors for that day of legislative lobbying.
In the final analysis, our religious values do have a bearing on our goals for the sort of general society we want to live in. But the balance between our own sense of morality and justice on the one hand versus our commitment to pluralism on the other hand gets recalculated issue by issue. We just hope and pray that the ideological battles that divide our society today remain makhlekot lesheym shamayim / “arguments for the sake of Heaven.”
(c) Rabbi David Steinberg (5774/2014)