Mishpatim and a Not So Benign Subject
Part of my professional responsibility is to inspire thought; and not to necessarily seek agreement. If a topic (especially a controversial one) leads to candid and open discussion or scrutiny; there is generally room for open mindedness and flexibility among the participants. Sadly, too much of our local and national discourse these days reflects a level of rigidity, which precludes any possibility of honest and sincere dialogue. Moreover, when spokespeople for a cause draw their conclusions from faulty or inaccurate information; or when they express their opinion as gospel, we create a climate of suspicion, intolerance and fear.
As an aside, I still recall the school board meeting I attended as a new rabbi. Believe it or not, the topic of concern was the teaching of Evolution versus Creationism. In the meeting room were many religious fundamentalists; people who spoke with a sincere yet unrestrained religious fervor I had never encountered. Unless Creationism were introduced into the modern schools many claimed, hell and damnation would follow. When the lines between opinion and gospel become blurred, open conversation gives way to intransigence.
One of the subjects which challenges our ability for open conversation is abortion. For decades now, the abortion discourse has polarized our country. Although passions run high on both sides of the debate; pro-lifers often regard their views as reflective of a religious gospel which suggests no legitimate compromise. They cite Scripture; often inaccurately (or at least questionably) to prove that God is on their side.
Enter this week’s portion of Mishpatim and the first legal discussion about Jewish views of abortion:
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. But if other damage ensues, the penalty shall be life for life…
In another forum, we can discuss the status of women in antiquity (Torah included); women who were often totally dependent on their husbands. My purpose in this column is to focus on the loss of a fetus. In Mishpatim, the Torah does not define the fetus as a full- fledged human being. Its loss does not constitute murder and therefore one who causes a woman to miscarriage is only assessed a financial penalty. Accordingly, if a fetus does not attain the status of a full human being, then it is reasonable to argue that abortion does not constitute murder. I admit that there is no consensus among Jewish authorities; and that the concept of abortion upon demand is not a definitive principle of Jewish law. However, based on the source from above (and sources elsewhere), the Conservative Movement’s Committee on Jewish Law and Standards, permits abortion where emotional/mental anguish is a factor. An example of mental anguish might be the despair of a mother who was informed that her child will be born with severe defects. Another example might be the mother’s severe agony of raising a child in impoverished circumstances. Even if abortion on demand is not a principle of Jewish law, it is clear that abortion is permitted in many circumstances. Issuing (and carrying out) threats against physicians and clinics and condemning pro-choice proponents as supporting Satan’s work do not reflect Jewish law. Anti-choice advocates have often turned their opinions into a gospel-like crusades; crusades which are certainly not supported by the Torah teachings in this week’s portion.
My goal here is to demonstrate how the Torah offers little support for such gospel-like thinking. Rather, the Torah has led authorities, such as the rabbis of Conservative Judaism to advocate for abortion when the mother’s physical or emotional health is at stake (see our synagogue commentary Etz Hayyim for more details). People who are intolerant of such a view; and wish to invoke Scripture as a proof-text, tend to invoke Scripture erroneously or at least inconclusively. They are entitled to their views; as long as they do so in the form of opinion and not in the form of an intolerant personal or communal crusade. Serious people have a right to express their opinions about abortion. They do not have the right nor the mandate to impose their will with the intent to breed an atmosphere of hostility.
As always, I welcome open discussion; with the hope that something in this column will inspire ongoing and meaningful dialogue.