CW: Abortion
*
*
*
*
*
*
*
*
Shabbat Shalom.
This week’s Torah portion, Parashat Mishpatim, opens, as I read, with some
outdated and seemingly obscure laws regarding the care of slaves. These laws
were actually hugely important and progressive in their time, and really,
continued to be ahead of their time for millenia if you compare how the Torah
describes slavery versus the realities of American chattel slavery in the 17th
through 19th centuries. It is through these laws that the Haftarah
connects, as the Prophet Jeremiah passes on the judgment of God that because
the elite of Jerusalem and the Kingdom of Judah recaptured their slaves after
the obligatory freedom granted to them at 6 years, these transgressors shall be
delivered into the captivity of the Babylonians.
Parashat Mishpatim, you see, is
entirely concerned with how Jewish people deal with one another, particularly
concerning the sanctity of life, and how society must hold accountable those
who cause harm. It is in this context that we hear one of the most famous
quotes of the Torah, though the quote is probably most famous in its turnaround
phrase commonly attributed to Gandhi. “If there is a fatality, you shall give a
life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a
foot for a foot, a burn for a burn, a wound for a wound, and a bruise for a
bruise” (Exodus 21:23-25). Of course, Gandhi’s famous response is “An eye for
an eye will cause the whole world to go blind.” Most rabbis even in ancient
times agreed that the Torah isn’t literally talking about plucking out eyes or
exacting brutal physical punishment; it’s talking about creating proper laws
and ordinances that people should live by, including the proper payments and
punishments for breaking them.
But what counts as
a fatality that should be repaid in kind? What is a life that deserves “life
for life”? Essentially, when does life begin, and when does death really count?
The verse immediately prior to the famous “A life for a life” quote states that
if men are quarrelling and one happens to hit a pregnant woman, causing her to
miscarry, he shall surely be punished. The woman’s husband may make demands of
the man who struck her and a judge may enforce some sort of restitution.
However, continues verse 23, “if there is a fatality, you shall give a life for
a life,” clearly distinguishing the termination of a pregnancy with the death
of a living person. The fetus is not yet considered a life. The harm to the
woman, the couple, and the potential family they are deprived of by the
termination of the pregnancy is clearly considered a tragedy and the one
responsible must may restitution, but he is not liable for murder or even
manslaughter.
Based on this
Torah verse, the rabbis of the Talmud asked themselves similar questions regarding
the concepts of “life” and “death” and determined that within forty days of
conception the zygote is “simply water.” The
rabbis had a pretty sophisticated understanding of the development of the fetus
considering their general access to medical science in the 5th
century, and further established a difference between the first trimester from
the rest of gestation. These distinctions were not meant to allow abortions
without consequence for those first few months. As in the case with the man
that pushes a pregnant woman and must be fined for causing her to miscarry,
intentional termination of the pregnancy is also considered forbidden. However,
unlike in the Christian-informed arguments we often hear in the secular world,
this injunction is not on the basis that the fetus is a life. Rather, it comes
from the prohibition on self-harm. The fetus is considered by the Talmud as
“like the thigh of its mother,” and since our bodies are considered to be the
property of God, in the image of God, we are discouraged from causing harm to
them unless it will save our lives.
Going further, Tractate Ohalot in
Seder Tohorot of the Mishnah establishes that even up to the moment of
childbirth, a pregnancy might be terminated for the sake of the life of the
mother. If the childbirth is proving very difficult and there is concern the
mother will live through it, the Mishnah says that the “the embryo within her
should be dismembered limb by limb,” which seems an unnecessarily grotesque way
to phrase that, because her life takes precedence. However, once the head
emerges (or more than half the body, in the case of a breach), then the birth
must be allowed to continue, even at the peril of the mother because once it is
partially born, it is a life. Although saving a life is a priority mitzvah, we
should not end one for another. And yet, as the Gemara comments on this
Mishnah, we are sometimes compelled to end one life for the sake of another, as
in the case of one who pursues murder. Tradition tells us that we should kill a
potential murderer in order to save him from the grave sin of murdering, as
well as to save the life of his intended victim. So, the Talmud asks itself if
this is the case with the baby killing its mother in the process of being born.
Although emotionally a big jump, the logic follows. If one life force is
killing another, are we not obligated to stop that killing? Sanhedrin 72b
concludes that because the baby cannot be intending to kill, it is considered
that “the mother is pursued by heaven.” It is a complicated answer to a
complicated series of questions.
The mitzvah of
pikuach nefesh, or saving a life, is of utmost importance in Judaism.
Therefore, we are permitted to break almost any other rule if it will mean
protecting a life. In the case of abortion, the question remains what counts as
“saving a life” – and whose life? In the traditional sense, it has meant that
the pregnancy has put the woman’s life in imminent mortal danger. In this case,
as the Talmud makes very clear, abortion is not only allowed, but required. Jewish
law is equivocating in saying that a woman should never be forced to carry to
term or give birth if her body is not physically able to do so safely.
Traditional sources also permit, but do not require, abortion in a situation
where it seems that the pregnancy causes a greater risk than most but is not putting
the mother’s life in clear and present danger. Arakhin 7a even
includes in this category the possibility that the pregnancy causes such
psychological anguish that the mother becomes at risk for other
self-destructive behaviors, the Talmud specifying in this case a pregnancy with
a “deformed child”, though in modern circumstances, we might think more to
cases involving pregnancy from non-consensual sexual acts rather than assuming
a child born with a physical abnormality is psychologically harmful to the
parents.
This last
exception by the ancient rabbis opens the door for many possible claims of
mental anguish that would allow for a halakhic abortion in more progressive
modern responsa. It seems to me that rabbis throughout history generally found
the practice unpleasant and wanted to dissuade women or couples as much as
possible, but found ways to allow it when it was clear that some women would
feel they truly need it. Later rabbis also permitted abortion in cases of a
fetus’s presumed deafness (Ben Zion Uziel, 20th century pre-state
Palestine), in cases when rubella occurs in early pregnancy (Uziel Weinberg, 20th
century Europe), and in cases of Tay-Sachs disease and other serious
abnormalities that might cause early death in the child anyway (Eliezer
Waldenberg, later 20th century Jerusalem).
A few years ago,
the New York Times published a story about a woman who was pregnant with twins
and decided to abort one of them. The
twins were a result of egg donation and in vitro fertilization, in which it is
common practice to fertilize many eggs at once because of the likelihood that
many will not effectively conceive. If there had been more zygotes that took,
reducing the pregnancy would have been considered more halakhically acceptable
and is, in fact, done by Jewish doctors if the number of fetuses is unusually
high and pose a danger to each other and the mother. However, in this case, the
twins did not pose great danger to the mother’s life, and was viewed by the
article as just another choice in a series of choices in her family planning. I
am not in the business of passing judgement on others’ life choices, but I
bring this case up simply for the sake of distinguishing where Jewish law falls
on this issue. Even Reform Judaism, the most liberal stance on Halakha, would
discourage this choice, especially since the woman was already fourteen weeks
pregnant. As I said earlier, the law is most lenient in the first forty days
after conception and in cases where there is an abnormality for the baby or mother.
Being a twin is unusual but doesn’t really count as a dangerous medical
abnormality.
There are no easy
answers in any of this. If there were, there wouldn’t need to be over a
thousand years’ worth of rabbis re-examining the topic and issuing new responses,
fresh perspectives, and considering new details. Every case is different and
should be looked at by its own merits. In the part of this parasha that does
discuss the treatment of slaves, the repercussion for a slave who refuses to
accept their freedom after their 6 years of servitude is to have an awl driven
through their ear and into the doorpost of their master’s house. The ear is
mutilated because in choosing to become a lifelong slave, they give up their
autonomy, their ability to hear God and hear reason and hear different points
of view for themselves. It is of utmost important that each Jewish person tries
to learn and understand our Scripture and Law for themselves, understand our
traditional stances on things, and come to an informed opinion that they may be
able to articulate their own ideas from a Jewish perspective. Influence from
our teachers, parents, leaders, and others we respect is normal, but ultimately
it is up to each person to maintain their right to discern God’s Law for themselves,
and govern themselves accordingly. Especially when it comes to the particularly
sensitive and controversial topics, where it can be emotional and difficult to
maintain healthy and nuanced conversations, we have a responsibility as Jews to
understand the complexities and the legitimacy of a range of perspectives, and
to do our best to uphold the sanctity of all life in these discussions. May we always consider every living soul as
sacred, and treat it with the proper care it deserves, as our tradition has
taught us.
