January 28th: Mishpatim
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
When we are faced with a challenging ethical situation, many of us turn to our religious traditions for guidance. Usually based on ancient religious texts, religions offer a range of principle and precedents. Of course, sometimes the ancient texts do not address later questions directly, and we are left speculating as to how our spiritual forebears would have responded.
In Judaism, we have had to consider such things as driving automobiles or using microphones—or Zoom—on the Sabbath. There have also been questions about blood transfusions, medicines made from unkosher ingredients, organ transplants, and other possibilities that the ancients could never imagine. Among these difficult modern questions is what the Halakha (Jewish Law) says about contraception and abortion. Interestingly enough, contraception is not a new concern. One can find the Talmudic Rabbis discussing it in regard to both humans and livestock. Sometimes, they understood, reproduction is not safe for females, and contraception is not only allowed but required.
Abortion is another matter. There is no mention of abortion in the Bible or the Talmud. The first Halakhic reference to it (in my knowledge) is a comment made by Rashi (Rabbi Shlomo Itzchaki, 1040-1105). Considering a situation in which continuing a pregnancy endangers the life of a pregnant woman, Rashi compares the fetus to a rodef / a pursuer, and the Halakha allows killing a pursuer to save one’s life.
Of course, Rashi was speaking about life-threatening pregnancies, not unwanted pregnancies. An unintended pregnancy or discontinuing a pregnancy when the woman is not able to care for an eventual child is not a scenario the ancients considered in the legal literature. So, in this modern and very difficult situation, we are left searching for principles and precedents—and there are very few.
Though some claim that a number of Biblical verses relate to abortion, the fact is that the Bible does not address this issue. The only possibly relevant passage is one in which the subject is only sort of approached—and it happens to occur in this week’s Torah portion. In Exodus 21.22-25, we read: “When men 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 as the woman’s husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” The loss of the pregnancy is considered an injury to the woman and not the loss of a life. That is it. There is no other place in the entire Bible—both the Jewish Bible (“Old Testament”) and the Christian Bible (“New Testament”)—that is directly and specifically relevant to elective or therapeutic abortion. Anyone who brings another passage to the debate is simply stretching the chosen passage beyond reasonable interpretation.
This is not to say that religious people have no right to be opposed to abortion. Nor should we say that religious people have no right to support abortion rights. What we have here is a situation in which the ancient religious texts do not address a modern situation, and modern people of faith have been forced to come up with opinions on their own—based on factors and opinions outside of the traditional Scriptural proof-texts.
For many, the big question regards ensoulment—that moment when a soul is put into a developing fetus. Medical science has been unable to answer this question, and Halakha (Jewish Law) has respected the uncertainty and not ventured its own speculation. Indeed religions in general have not addressed this question until very recently.
While some believe that “life begins at conception,” their opinion has not been reflected in religious practice. Scientists estimate that 50% of fertilized eggs (conceptions) do not implant in the uterus or are spontaneously expelled. The woman never even knows she has conceived. In such cases, there is no religious observance marking the existence or loss of a human life. Even in the case of an early-term miscarriage, traditional religions respond with sympathy and comfort but not with a naming ceremony, baptism, blessing, or funeral. In other words, the “life begins at conception” idea is not a “traditional” religious belief; it is a modern religious opinion.
There is nothing wrong with modern religious opinions; we all have them. However, honesty requires identifying them as such and not falsely claiming Biblical authorization.
Unfortunately, I do not have an answer to the debate on this divisive issue. And, whatever the Supreme Court rules in the Spring will not settle the matter either. The best we can do is to honestly appraise the reasons for each opinion and to respect how deeply this issue affects individuals.
In the Reform Movement’s thinking—and in the thinking of the many denominations in the Religious Coalition for Reproductive Choice, this profound individuality is a major factor. Realizing that pregnancy is a blessing for some and a crisis for others, the Union for Reform Judaism and its affiliates and colleagues have focused on the individual choice that each pregnant woman faces. As much as choice is seen as a right—a matter of legal and moral autonomy, the Reform Movement also regards the choices women make about their bodies and fertility as rites—moral and religious practices as individual women weigh the many and complex factors and make personal decisions.
One of the most hopeful stories in this conflict was a program in Missouri a few decades ago in which anti-abortion and pro-choice groups combined to create a “Venn Diagram” solution that served both sides’ interests. While the anti-abortion forces want less abortions, the pro-choice advocates do not want more abortions. They want fewer unwanted pregnancies. So, the two groups teamed up in promoting sex-education and contraception information in the community—and their efforts worked: there was a marked decrease in the crises that lead some women and girls to see abortion as their only choice. Even in this difficult conflict, progress and cooperation is possible.