The following dvar torah was written and delivered by Denise Sterchi upon becoming Bat Mitzvah for Parashat Mishpatim 5784 // February 10, 2024.
You may have noticed in your program that today is the Repro Shabbat. In 2021 the National Council of Jewish Women wanted to expand the public conversation about abortion to include not-widely-known Jewish views. As a lifelong advocate for abortion rights and reproductive justice, I couldn’t resist looking at these texts.
A quick word about language: the ancient texts use the word “woman,” rather than women and all people who can get pregnant or other more inclusive terms; this reflects their times.
The National Council of Jewish Women chose the week of the reading of Mishpatim as the Repro Shabbat because this week’s parsha contains the verse in the Torah on which much Jewish law regarding abortion is based. In Exodus 21:22, the Torah says, “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.” That reckoning was probably based on rulings of the judges that Abra was describing earlier.
What is this verse saying? The penalty for the death of a fetus is a monetary fine. The verse occurs in the context of many verses declaring the consequences for manslaughter or murder. In calling for a monetary fine, this Torah verse has been read throughout the centuries to say that the fetus is not yet a “nefesh,” a life. Instead, it is the property of the father—not yet a human being. In Mishnaic discussions of the issue of when life begins, Rabbi Yuhudah ha Nasi said that the fetus is considered “as of its mother’s thigh” until birth. Another early commentary states that a pregnancy is “mere fluid” until the 40th day after conception.
And yet, in 2021 six states required that providers tell the patient that personhood begins at conception during pre-abortion counseling.
A second question that often comes up in discussions about abortion is what to do when a pregnancy is endangering the life or health of the pregnant person. The Mishnah states that if a woman or other pregnant person is having trouble giving birth, the fetus shall be removed. Rashi, among others, agreed. In some translations, Maimonides went as far as saying that abortion is REQUIRED to save the life of the pregnant individual.
But what about abortion undertaken due to social conditions or the mental well-being of the pregnant person? Through the centuries, from Northern France to Egypt to Algiers, Jewish scholars held that abortion is permitted in a number of different circumstances. One rabbi wrote that abortion is permitted to save the childbearing person from the “great pain” associated with the social stigma of giving birth to a child not their husband’s. With the advent of prenatal diagnostic testing in the 20th century, many rabbis support abortion in instances of a fetal anomaly. One wrote: “And suffering and emotional pain in great measure are greater and more painful than physical pain.” A teaching from the Trans Halakha Project also speaks to the issue of who should make the decision about an abortion. They quote the Book of Proverbs in saying, Lev yodea marat yafsho. “The heart knows the bitterness of its soul.”
I have been struck by how profoundly liberatory and affirming of each person’s judgment and integrity this last teaching is, and in how many situations it may be applied–including decisions about whether or not to bear or raise children, and about what kinds of families we create. I would add that we make those decisions based not only on the suffering in our hearts, but also on what brings us joy.
The Repro Shabbat calls on all of us to put Torah into practice by fighting for reproductive justice based on our Jewish teachings.
You may have noticed in your program that today is the Repro Shabbat. In 2021 the National Council of Jewish Women wanted to expand the public conversation about abortion to include not-widely-known Jewish views. As a lifelong advocate for abortion rights and reproductive justice, I couldn’t resist looking at these texts.
A quick word about language: the ancient texts use the word “woman,” rather than women and all people who can get pregnant or other more inclusive terms; this reflects their times.
The National Council of Jewish Women chose the week of the reading of Mishpatim as the Repro Shabbat because this week’s parsha contains the verse in the Torah on which much Jewish law regarding abortion is based. In Exodus 21:22, the Torah says, “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.” That reckoning was probably based on rulings of the judges that Abra was describing earlier.
What is this verse saying? The penalty for the death of a fetus is a monetary fine. The verse occurs in the context of many verses declaring the consequences for manslaughter or murder. In calling for a monetary fine, this Torah verse has been read throughout the centuries to say that the fetus is not yet a “nefesh,” a life. Instead, it is the property of the father—not yet a human being. In Mishnaic discussions of the issue of when life begins, Rabbi Yuhudah ha Nasi said that the fetus is considered “as of its mother’s thigh” until birth. Another early commentary states that a pregnancy is “mere fluid” until the 40th day after conception.
And yet, in 2021 six states required that providers tell the patient that personhood begins at conception during pre-abortion counseling.
A second question that often comes up in discussions about abortion is what to do when a pregnancy is endangering the life or health of the pregnant person. The Mishnah states that if a woman or other pregnant person is having trouble giving birth, the fetus shall be removed. Rashi, among others, agreed. In some translations, Maimonides went as far as saying that abortion is REQUIRED to save the life of the pregnant individual.
But what about abortion undertaken due to social conditions or the mental well-being of the pregnant person? Through the centuries, from Northern France to Egypt to Algiers, Jewish scholars held that abortion is permitted in a number of different circumstances. One rabbi wrote that abortion is permitted to save the childbearing person from the “great pain” associated with the social stigma of giving birth to a child not their husband’s. With the advent of prenatal diagnostic testing in the 20th century, many rabbis support abortion in instances of a fetal anomaly. One wrote: “And suffering and emotional pain in great measure are greater and more painful than physical pain.” A teaching from the Trans Halakha Project also speaks to the issue of who should make the decision about an abortion. They quote the Book of Proverbs in saying, Lev yodea marat yafsho. “The heart knows the bitterness of its soul.”
I have been struck by how profoundly liberatory and affirming of each person’s judgment and integrity this last teaching is, and in how many situations it may be applied–including decisions about whether or not to bear or raise children, and about what kinds of families we create. I would add that we make those decisions based not only on the suffering in our hearts, but also on what brings us joy.
The Repro Shabbat calls on all of us to put Torah into practice by fighting for reproductive justice based on our Jewish teachings.
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