February 17, 2023 / 26 Shevat 5783 – Mishpatim

“We are all Whole and Holy – B’tzelem Elohim

Repro (Reproductive Freedom) Shabbat

 The National Reform Movement has designated this weekend as Repro Shabbat.  Honestly, when I read the first announcement of this special Shabbat, instead of “repro,” I saw “repo,” a more familiar and catchier abbreviation – to me a repossessed car, that is, a lender, like a bank, takes back possession of a vehicle, when a person falls behind their auto loan payments. On the other hand, and in today’s faith lingo, “repro” is short for Reproductive, as in Reproductive Freedom, and Reproductive Justice.  I can expect that there are Jewish values which govern both “repo” and “repro.” That said, it is verse 22 of chapter 21 in the Book of Exodus, which I just read, that has prompted a brief exploration of Jewish sources relating to reproductive freedoms.  Again, the verse is translated as (quote): “When persons fight, and one of them pushes a pregnant woman, and a miscarriage results, but no other damage ensues, the one responsible shall be fined according to what the woman’s husband may exact from him, the payment to be based on reckoning.  The Torah envisions a scenario, or is familiar enough with this scenario to warrant a legal prescription, where a pregnant woman is physically near enough to a physical altercation (or maybe a boxing match) to be punched in the stomach, or even just knocked over, presumably by accident.  The injured woman miscarries (and we don’t know if it’s instantaneous or prolonged here).  The punishment of the perpetrator is a monetary fine, in accordance to the request of the woman’s husband.  In the context of the time the Torah was written and the previous verses in this chapter devoted to the status of slaves, both Jewish and non-Jewish, commentators generally consider a fine based on the value of an adult male or female slave on the open market, that is the worth of the aborted fetus as a potential slave even if the pregnant woman is not a slave herself.  A second variable would include the age of the fetus, that is, the fetus would have more value closer to its due date.

The Hebrew word f’lalaim is usually translated as “reckoning.”  The Hebrew root is connected both to the word for prayer, tfilah and also has the meaning of “a legal mediation.”  Prayer as mediation between humans and God may or may not come into play here.  More likely, a town judge would establish the fine amount and the husband would attempt to collect whatever he could of the total amount.  This monetary compensation as punishment is differentiated from what we learn in the adjacent verse, verse 23, which states:  “If any other damage ensues, the penalty shall be life for life,”  what we know as lex talionis – measure for measure.  The damage in this verse is thus understood as the loss of life of the pregnant mother, which demands execution, or as later interpolated in the Talmud, monetary compensation, calculated in ancient days by work output potential.  We can conclude from these two juxtaposed verses that the unborn fetus is not considered a living person and that feticide is not murder.  The view from the sky is showing us punishments are required in all assaults, intentional or accidental, and calculated according to the severity of a resulting injury, and most important, there is a limit to vengeance.

Limiting or blocking access to reproductive health care for women, or any persons identifying with a non-binary gender but able to be pregnant, is connected to what we have come to understand as the conservative Christian definition of the beginning of life at conception.  This definition proscribes the termination of pregnancy even in instances where Jewish law not only permits, but even requires it.  In fact, a major factor in some Christian views on abortion may have developed through a mistranslation of verse 23. The Greek translation of the Hebrew Bible, known as the Septuagint, completed in 132 BCE and the basis of the Christian Scriptures, translates the Hebrew ason in this verse, as exeikonismenon, rather than damage.  The Greek word was translated into English as “the image,” resulting in the ambiguity of whether the subject is the fetus or the pregnant woman. If the fetus, then the prescribed death penalty would be for the murder of a fetus. One could say that the ramifications of this poor translation choice continue to this day.

The Talmud concerns itself deeply with the status of a fetus.  Yevamot 69b specifies: If she is found pregnant, until the fortieth day it is mere fluid.  That is to say, the fetus has no status for the first forty days of pregnancy. It is like water and deemed of no legal significance according to the Talmud. Was this because of the prevalence of miscarriages, or some other claim? Without knowing, is this text a clear assertion that life does not begin at conception?

The Mishnah offers that if a woman is having trouble giving birth, her life comes before the life of unborn child. But if the greater part of the child has emerged, one may not touch it, for one may not set aside one person’s life for that of another.  The Mishnah is teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth.

This principle is cited elsewhere in the Talmud in a conversation about self-defense; there, abortion for the purpose of saving the pregnant person’s life should be considered self-defense, and that the fetus in this case is a rodef, a “pursuer” attempting to kill the pregnant person.

Rabbis in the last three centuries have addressed also the emotional burdens associated with some pregnancies.  They ruled on the right to abort if the pregnancy is a result of an adulterous relationship, or from any woe that would cause great pain to the one who is pregnant, even without it being a matter of saving the mother’s life.  The great pain might be the knowledge of a grave fetal diagnosis as Tay-Sachs disease, the financial or mental inability to rear a child, a fear of public or family shame, the fear of being totally alone in the world, and a myriad of other legitimate reasons.

Now let’s shift gears.  Rabbi Ben Zion Chai Uziel in the mid-19th century ruled that abortion is not permitted without reason, for abortion both destroys and frustrates the possibility of life. This is why in Israel where abortion is legal, halacha – Jewish law demands that each one who seeks an abortion must present their case in front of a panel of three medical and ethical professionals before the procedure can be done.

Again, there must be some reason for an abortion, but it can even be a “slim reason.”  Even if the issue is not about the pregnant person’s physical or emotional health, if there are other key factors to consider, they merit inclusion. The social, emotional, and psychological context of the pregnant person matters, and are possible grounds for termination of a pregnancy. Even for a slim reason.

Many Jewish values can and should factor in to our understanding of the importance of abortion access for all. Dignity, caring for ourselves emotionally and physically, valuing relationships, our Jewish mandate to pursue the creation of a more just society—all of the above should be present as we consider individual cases, remembering that not everyone has the same privileges, or the same choices.

Jewish values around Reproductive Health Choices is guaranteed not only by the Fourteenth Amendment ━ the right to equality and privacy ━ but also by the First Amendment’s guarantee that no one religion or religious interpretation will be enshrined in law or regulation.

In the words of Ruth Bader Ginsburg, addressing the essence of human empowerment,  “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated less than a fully adult human responsible for her own choices.”

And the vision of Jewish poet Alden Solovy:

One day,
On the day the world is perfected,
Rape, incest, and all violence
Will vanish from the earth.
On that day,
Medical science will have safe and effective answers
To every risk of pregnancy,
And only those willing and able to raise a child–
Physically, spiritually, financially, emotionally –
Will become pregnant.
On the day the world is perfected,
Every pregnancy will result
From the holy desire to bring forth life
And to raise children,
Without fear of medical or personal consequences.

Until that day,
God of justice,
Defend and protect
Reproductive freedom
In the US and throughout the world.
Grant those who face this profound decision
Wisdom and strength.
Surround them with loving support
And caring professionals.
Guard them, their caregivers, and clinics,
Against verbal violence and physical attack.
Let no court and no politician
Stand in the way
Of the right to choose.

Amen, and Shabbat shalom.