The following piece is based on a sermon I delivered on 02.22.20
Just two weeks back, in the Torah portion Mishpatim, we read of 53 legal cases and commandments which serve as elaborations on the Aseret HaDibbrot, the Ten Commandments. In this way, Mishpatim can be viewed as the beginning of the rabbinic process — how do we enact the ideals articulated and promulgated in the Ten Commandments?
What is most intriguing about Parashat Mishpatim is the way it makes real and tangible the sometimes abstract notions of justice and divinity that are presented in the Ten Commandments. Whereas the Ten Commandments set forth ideals and standards and serve as a general guiding moral template, Mishpatim presents us with an up-close look at the realia of everyday life and the inherent messiness of social hierarchies.
Mishpatim highlights the plight of those most often marginalised in society by placing front and center the proper treatment of servants, a social category whom our ancestors might be tempted to overlook as they imagine ourselves, a newly-liberated people, settling into a more permanent home. Throughout the portion, we are exhorted to protect those most vulnerable populations among us – the migrant, the orphan, the widow, the servant, as well as women. In other words, Mishpatim, which defines for us precisely what it means to live ethically as a Jew, confronts us with the most challenging cases of social inequity, forcing us to consciously notice that which we always see, namely, marginalised populations and their bodies.
Mishpatim also presents the sole explicit biblical example of the termination of a pregnancy:
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… (JPS translation of Ex. 21:22ff)
As we will see shortly, these verses experienced an unusual afterlife, engendering millennia of controversy.
From a strictly Jewish perspective, the implications of the above scenario are strikingly progressive, even and especially within the context in which this case was originally written. The case described above, of an inflicted injury resulting in a miscarriage, is not a capital offense, but a tort. Only if the pregnant woman (or, perhaps, one of the fighting men) had been killed would the offender in this incident be eligible for the death penalty.
Beyond this differentiation between the women’s life and that of the fetus, this passage also draws our attention to some of the conventional social values pertaining to women in Biblical times. The Torah cannot imagine a world in which women would not want children. The central aspiration of most female biblical characters is child-bearing. Producing progeny defined these women’s social status, secured their material stability, and ensured their legal protection. For example, when our barren matriarch Sarah’s handmaid Hagar, whom Sarah had given to Abraham in order that he may produce an heir, realizes that she – as opposed to her mistress – has been able to conceive a child, we read (Gen. 16:4): “her mistress was lowered in her esteem.” A few generations later, in a stroke of tragic irony, the matriarch Rachel, who the Biblical reader knows will die giving birth to her second son, beseeches her husbands to give her children, and if not “I will die.” Another well-known incident is found at the outset of the book of Samuel, when the then-barren Hannah experiences a similar exchange with her husband Elkanah and feels shame upon seeing his other wife, Peninah, surrounded by her children.
Clearly, in the biblical imagination, childlessness was a cause for shame for these women. Their status very much relied upon their producing progeny. Mishpatim is attuned to this tension and seeks to provide at least some form of compensation for the injured pregnant woman and her family.
At the heart of Mishpatim lies a fundamental concern for the protection of human dignity. As fugitives and recently-liberated slaves, the Israelites were no strangers to the corrosive impact of shame and humiliation. Our laws create embedded, automatic structures to correct and ideally avoid scenarios which would create shame and jeopardize another person’s well-being.
Shame is always a result of the lowering of another person’s status, whether through actions or words.
In the case of the assaulted pregnant woman, her very status is imperiled by this heinous, violent act.
As we well know, the sociological status of women has shifted rather radically, especially within the last century in our society. No longer is a woman necessarily economically dependent on others; no longer do women necessarily feel the need to have children to lead a fulfilled life.
The conditions of our life have changed since biblical times, but the moral template remains – we are all still susceptible to shame and shaming.
While the status of women has evolved from that of chattel to more independent actors, the road to full social and economic equality for women is still a long one. Women are still all too often marginalized and frequently must endure other forms of economic and societal discrimination.
If we are to apply the guiding principle of Parashat Mishpatim to the case of women today, the question we must ask ourselves is “What is it that, if taken away from a woman in our modern society, would deprive her dignity by causing her anguish, shame, frustration, and a sense of grave injustice?
Our conversation today, then, is less likely about people physically brawling on the street and might be more about pay equity, physical safety, or even reproductive rights—and these are only the tip of the iceberg.
You may have been following the legal case around the three remaining abortion clinics in the state of Louisiana, a case which was argued before the Supreme Court this past Wednesday. June Medical Services v. Russo concerns a Louisiana state law which requires physicians to have admitting privileges within 30 miles of the clinics in which they perform abortions. Upholding this law would effectively nearly eliminate abortions in the state of Louisiana.
Coming on the heels of a variety of so-called Personhood Acts and Life at Conception Acts last year in states such as Alabama, South Carolina, Kentucky, Mississippi, and Ohio, the current case seeks to further limit women’s reproductive rights and safe access to an abortion. At the heart of this growing national movement against reproductive rights is a commitment to the belief that life begins before birth.
From where does this conviction that a fetus’ life is equivalent to that of its mother stem? From a mistranslation of one-word that appears twice in Exodus 21:22-23.
The Septuagint – and, therefore subsequent Greek and Christian translations of the Bible (Catholic, but not Protestant, which translates the Hebrew correctly) – understood these verses quite differently, based on a mistaken translation of the word “ason.” By mistranslating the word ason as meaning a “formed fetus” they read the verse as follows: “When men fight, and one of them pushes a pregnant woman ויצאו ילדיה ולא יהיה אסון (lit, according to the Greek translation: ‘and her fetus comes out, but is not formed [mistranslating the Heb, ason]), the one responsible shall be fined… v’im ason y’hyeh — But if [it is] a form [an ‘ason,’ i.e., according to the Greek translation, a “formed fetus”], the penalty shall be life for life, eye for eye, tooth for tooth…”
This translation would define a formed fetus as being a full human being, and, therefore, its destruction would be equivalent to murder. Only in the last several hundred years was the definition of when a fetus is to be considered a human being pushed forward to the moment of conception by certain Christian groups.
As with all such weighty matters, this issue elicits extreme feelings from a wide spectrum of people. Our own tradition is far from monolithic when it comes to Jewish legal responses to abortion. While there are more conservative views which permit abortions only in the case of immediate, grave danger to the mother’s life, there are also prominent Jewish legalists, including the former Sephardi Chief Rabbi of Israel, Rabbi Ben-Zion Meir Hai Uziel and 20th century Israeli legalist Rabbi Eliezer Yehuda Waldenberg, who maintain that even the possibility of great mental anguish is sufficient grounds upon which to terminate a pregnancy.
Ultimately, whether one is informed by religious convictions or not, decisions around family planning are deeply personal choices. The greatest challenge we presently face is that the very principle and beliefs undergirding the current conversation around reproductive rights stem from a very specific religious belief. The case currently before the Supreme Court not only has tremendous ramifications for the future of reproductive rights in the U.S., but it will also set a precedent for the blurring of church and state.
As Jews, we are fierce defenders of an ethical framework and legacy which demands of us continued nuanced reflection on complex issues. As American Jews, we should hold dear the principle of religious freedom, which at its core, also includes freedom from the imposition of a particular faith group’s agenda, values, and practices.