Halakhah of Reproductive Justice
What are we learning when we learn Torah? When we are reading about the mitzvot - the various rules, laws, commandments, guidelines, and instructions that establish the practice of Judaism - it is tempting to think we are encountering God’s wishes for how we are to live. If the Torah says “do X”, then that seems pretty straightforward! We are learning what to do.
However, Jews don’t learn how “to do” from Torah. At least not directly. Our “doing” is contained within the ongoing project of halakhah, often translated as “Jewish law” but literally related to the word for “walking or going.” If life is a journey, halakhah helps us see and stay on worthy paths. Or to use another metaphor, halakhah is the ongoing, vital interpretative stream flowing from the source waters of Torah all the way to our Jewish practices today. Along the way, that stream of interpretation flows over the ground of our collective lived experiences. Both the waters of Torah and the silt-memories of our past experiences inform halakhah. They are both ways of knowing, and offer values and lessons and practices for discerning wisdom for the present moment.
[Content warning: violence, abortion]
The Torah portion this week contains the biblical source for Jewish conversation around abortion, and in recent years the National Council of Jewish Women has established the Shabbat of Parashat Mishpatim as Repro Shabbat, to focus our attention on matters of reproductive freedom and reproductive justice. We are just a few weeks past marking what would have been 50 years of Roe v. Wade, and almost a year into mourning the overturning of that decision and an aggressive and scary wave of abortion restrictions in many states, including the potential for abortion pills to be banned nationwide by a Texas district court judge. I know many of us are both worried and furious.
What does our halakhah teach us?
When we turn to Torah, we have this one lone ruling related to abortion: “When [two or more] parties 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, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life…” (Exodus 21:22-23).
From this case study, we learn that there is a categorical difference between life in actuality - the woman’s life - and the potential life of a fetus. The rest of Jewish law derived from this verse takes up the idea that while life is sacred, there are times when a pregnant person’s physical and mental well-being must be prioritized over the potential life of a fetus, and allows (or even mandates) abortion on these grounds.
As Rabbi Danya Ruttenberg says, “There is not a single person to be compelled to continue a pregnancy against their will who does not experience mental pain, emotional suffering or violations of dignity in some way. If we want to say you have to have a good justification for an abortion, every person who is forced to carry a pregnancy against their will has a good justification for an abortion, according to our own texts.” In an article from last summer, Rabbi Ruttenberg points out how abortion restrictions are also violations of religious freedom.
In 1965, a Jewish nineteen-year-old student at the University of Chicago named Heather Booth received a call from a friend, asking if Booth could help the friend’s sister get an abortion. “Upon learning that her friend’s sister was on the verge of being suicidal, Booth decided that even though what she was doing was considered illegal in the United States, she was doing the right thing. As she put it later, she knew her actions would save the woman’s life. Soon, more people began reaching out to Booth for help, prompting her to form an underground abortion network.” The network, the Jane Collective, operated until Roe v. Wade became law of the land. (Full story here.)
This too is part of our Jewish silt-memory. When lives are in danger, we organize, we educate ourselves, we foster acts of love. Some of us may even break laws so that we don’t become morally broken.
I was startled to learn that Heather Booth had wanted to be a rabbi. But she was told that only men could become rabbis. Returning to the Torah portion, it seems awfully clear to me that although this text generates nuanced and care-oriented halakhah around abortion, it also reflects back an ugly diminishment of the world. Two men are fighting, and a woman gets hurt. Her husband is the one who gets paid compensation. The center of the Torah’s universe appears to be male. But the ground of Jewish experience holds male, female, transgender, non-binary, and every possible expression of human identity.
If you want to support reproductive justice and abortion rights, you can donate to organizations, learn more about Washington state abortion law, show up for demonstrations, and lobby for policies. And we can also learn from and lift up women’s and trans and gender non-binary voices. We need our progressive version of halakhah, a fully inclusive source of wisdom that reflects back each of our lived truths and points us towards a world of dignity, choice, care, and love.
Shabbat shalom,
Rabbi Jay LeVine
