Voices of WRJ: Mishpatim

February 21, 2020Sally Frank

This week’s Torah portion is Mishpatim, “These are the laws.” As a lawyer, I enjoy reading the range of statutes and ordinances covered in the parashah. The portion deals with both criminal and civil law. It does not make a distinction between religious and secular law because to the ancient Israelites, they were the same. The criminal law sets the death penalty for many offenses including for a person who strikes or insults their mother or father. The civil law is more interesting. It makes a distinction between intentional conduct and accidents. It decides who is responsible if an animal hurts a person or an animal is injured while in someone else’s care. In many ways, this can be looked at as the beginnings of modern civil law.

Given the times in which we are living and the urgency of reproductive justice, it is useful to look at verses that serve as a proof text for the position that a fetus is not a human being. It states in Exodus 21:22-24:

“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, …”

In essence, if there is a miscarriage, the penalty is a fine. If the pregnant woman is injured, the penalty is the same as for injuring other people. This means that while the fetus has value, it is not a human being. The Talmud takes a similar stance. It says that if a woman is on the birthing stool and is having problems, the fetus can be destroyed. It is viewed as an issue of self-defense. However, if the head is outside the woman, the Talmud says that one cannot choose between the mother and the baby because neither’s blood is redder. Each is a living human being with equal value. Here the Talmud is giving priority to the life of the pregnant woman until the head of the baby is visible.

In today’s abortion debates, it often seems that those who oppose reproductive health and rights put more value on the life of the fetus than on the life of the woman carrying that fetus.  The so-called Human Life Amendment proposed to be added to the Constitution for years, would ban all abortions, even to save the life of the woman. By defunding Planned Parenthood, the federal government and several states are depriving women, especially poor women, of basic health care performed by Planned Parenthood to try to eliminate abortions.

Today, states all over the United States are trying to devise more and more laws to restrict abortion. They are hoping that when the Supreme Court rules this spring on a case from Louisiana, it will open it up to challenge Roe v. Wade. The second choice for abortion opponents is to regulate abortion rights away. In the Supreme Court opinion known as the Casey case, the Court found that states could restrict abortion so long as those restrictions did not create an “undue burden” to the exercise of abortion rights. Opponents of women’s reproductive rights are hoping that the Louisiana law is upheld which would mean that any restriction short of an outright ban would not constitute an undue burden.

Unfortunately, many people in the United States think that THE religious view on abortion is to believe that human life begins at the moment of conception. Our texts and this week’s Torah portion show that is not the case. The traditional Jewish position is that human life begins at birth. While the fetus is important and valuable, it is not a human being while the pregnant woman is a human being created in the image of God. It is she that needs our protection.

Thankfully, WRJ is leading Reform Jews in organizing and fighting for Reproductive Health and Rights throughout the United States. (It is not under similar attack in Canada). You can join that work.  Every voice is needed.

Shabbat Shalom.


Sally Frank is a WRJ Board Member and a member of Temple B'nai Jeshurun Sisterhood in Des Moines, IA.

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