I was listening to a Podcast recently wherein the show’s host and one of the show’s employees were having a discussion over whether or not the word “Jew” was offensive. The employee, a non-Jew, told the host that he could not say the word “Jews” anymore and that “the Jewish people,” should be used instead. The host, an older Jewish man, said that he did not find the word “Jews” offensive in least. The podcast continued with an explanation of how we are living in an age when it is possible that a word, one word, can be so supercharged, so full of negativity or baggage, that the context surrounding the word becomes irrelevant.
Imagine that. The context doesn’t matter. If you say a word, a particular word, the world goes up in arms in polarized positive or negative response. It’s both fascinating and scary to me, and why I wanted to focus on a specific portion of the parsha this week. The parsha, Mishpatim, contains what is known as Sefer Ha–Berit, the “Book of the Covenant,” which is the first major body of Torah legislation. Moses writes down what God whispers and a set of divine laws are created through the lens of social, moral, ethical, civil, criminal, and cultic genres.
This is where what I like to call the “ick factor” comes in to play in regards to Jewish law. Some of these words are difficult to read. The section begins with how to properly handle a slave; what is the morally and ethically best way to own another human being. Ick. Capital punishment, the times when it is appropriate to kill another person, whether it be for murder, kidnapping, or simply insulting your mother or father. Ick.
Still, despite the inherent ickiness of some of these words, they merit our attention. They merit our attention because right or wrong, good or bad, the words in our Torah continue to prescribe the moral and ethical code that many of us choose to live by.
So what moral issue are we focusing on today? Interestingly, it is one that was clearly as debated 2500 years ago as it is today. It was enough of an issue that God felt Moses and the Israelite people needed specific direction. It was, if you can believe it, the question of the unborn fetus. Now, before I get into the text, and what the text means for us, let me be very clear that I am not up here telling you what you should or should not believe on this issue. While I will be sharing the Reform movement’s view, based explicitly on the today’s Torah portion, I hope that you always know that at Temple Israel we value a diversity of opinions and hope that we can always respectfully discuss matters as important as this.
But, because words matter, I do hope that regardless of your specific beliefs, that you will hear me out. Hear our Torah out. While “abortion” and “fetus” can be loaded terms that throw people up in arms, as our portion today suggests, they are words that merit our attention and discussion. To that end, Exodus 21, verses 22-25 reads:
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, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.
Yes, this is that famous passage which created the proverb “an eye for an eye” in ways of vengeance and retaliation. The latter half of the paragraph, which deals with the equal punishment fitting the crime, actually originates from a much older text, The Code of Hammurabi, which merits much more discussion. Perhaps next week.
So instead, let’s focus on the first half of the quote, which states that when two people are fighting and one of them inadvertently strikes a pregnant woman, there are consequences. Imagine a bar fight, and two guys are struggling, and one throws the other into a pregnant woman, or one misses his opponent and hits the pregnant woman. The text is specific here, saying that the strike, this inadvertent push, would cause (in the Hebrew) V’yatz’oo Y’ladeha, literally causing the baby to come out. Rabbis and scholars argue over this, but the basic idea is that the baby would be miscarried, or would be still-born, or born premature and would subsequently pass away. It is not talking about pushing a pregnant woman who is full-term and subsequently goes into labor. What struck me was the way this situation was phrased: “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.”
We’ll talk about what they mean by “no other damage ensues,” in a moment; but the result of the loss of a baby, a miscarriage, is a fine, monetary compensation. This is important because of the verses that follow: “But if other damage ensues, the penalty shall be life for life,” meaning that if the mother dies, the penalty is not monetary, it is physical, in the Hebrew literally, “nefesh tachat nefesh,” a soul for a soul. The soul, in other words, the life, does not apply to the unborn fetus. The punishment for the death of an unborn fetus is monetary, because it is in a different class than those with a “nefesh,” a soul
Before we continue along that path, let me give you another example of this. A few verses earlier, the text is discussing what to do when an ox gores a human being. The result, according to Exodus 21:29, is that the ox will be stoned, and its owner shall be put to death. But, if the ox gores a slave, the result is a payment of “thirty shekels of silver to the master.” In other words, if an ox kills a human, a human life is paid in return; if an ox kills a slave, money is the compensation. Why? Because slaves are in a different class. They are property. They have market value. What does this have to do with the death of an unborn fetus?
Here’s where it gets really interesting. Rashi, a 11th century French commentator, read this verse and explained that the Talmud rabbis understood it this way: that if the unborn fetus dies as a result of an inadvertent strike during a quarrel, money must be paid to the husband of the pregnant woman for the value of the fetus, because “the court figures how much she would be worth if sold as a pregnant slave when customers would take into account the prospect of the slaves she would bear, and her value as a slave without the pregnancy.”
Did you catch that? The courts figure out the value of a man’s wife, as if she would have been sold into slavery, and considering if she was sold as a pregnant slave, how many more slaves she could have born. All of this is hypothetical, considering the pregnant woman is not a slave, and the fetus will not be born into slavery, but a baby born into slavery is worth the same as an unborn fetus which will not be born into slavery. It is not a life; it is not considered a nefesh. It is simply a potential source of income.
The Talmudic rabbis, and the commentators for many generations since, understood that if it had been considered murder, the penalties for the murder of a life would have come into play, and thus in Judaism, an unborn fetus is not considered a living person and feticide is not murder.
Words are important, friends. From this Biblical verse arose commentaries throughout the generations discussing when abortion is acceptable in Jewish law. The Mishnah states that it is permissible if the woman’s life is in danger, and that only when the fetus emerges has it possessed the status of a human life. In fact, the Mishnah discusses the problem of executing a woman criminal who is pregnant, and the law states that they must execute her before she gives birth, so as to not take another life. The Tosefot, a set of medieval commentaries, states plainly, based upon the discussion of the rabbis that it is “permissible to kill an unborn fetus.”
These, in fact, all, opinions agree that Jewish law permits or requires an abortion to be performed when it is necessary to save a woman’s life. In fact, there are those that argue that when the fetus endangers the life of its mother, the fetus becomes “an aggressor,” which according to Jewish law, may be killed if necessary to protect a victim.
We know, of course, that that is not the end of the conversation. The Mishnah also teaches that because the fetus is not granted the status of nefesh in Jewish law, that the permission for performing an abortion “may extend…to circumstances of less than mortal danger to the mother. They will sanction abortion for purposes of the mother’s ‘healing’ (r’fu’ah), even when her life is not in jeopardy because the vital interests of the mother, as a full legal person, ‘take precedence’ over the life of the fetus.”
Now this is where Orthodoxy and Reform Judaism split on the issue. The Orthodox, who view the fetus as an “aggressor,” argue that the law dictates only mortal danger to the mother is acceptable. Reform Judaism, on the other hand, rejects this idea, and understands the Mishnah’s view of the fetus not yet being a nefesh and thus physical and psychological consequences are enough to consider abortion rather than the continuation of the pregnancy.
Words matter, friends. And yet, even if we took the Torah as divine, even if we took the words in Exodus as those of God whispered to Moses, we have questions about words. What is a nefesh? Is the fetus, though not a nefesh, a potential human life? Would this not mean also that we should consider its destruction? What does it mean when we mention the mother’s “healing”? Is it possible to define “pain,” or “great pain”? More words. So much of these cases, of these words, are individualized, and are matters of judgement. And yet, how quick can people be to rush to judgement, good or bad, for or against, during what is a deeply personal and, in some cases, deeply painful experience.
In the podcast about whether or not the word “Jew” was allowable, there was questioning, there was discussion, there was research. And even two highly educated, highly intellectual people were left with two different, informed choices. But those choices were the result of introspection, understanding, and empathy.
Each year, when I get to this Torah portion, I always think about where we are now in relation to when this was written. I think about how conversations around “abortion” and “fetus” have changed even within my own lifetime. And I think about how, more recently, social media and 24-hr news access has supercharged words like “abortion” and “fetus.” Those words. Maybe I even lost you when I mentioned those words, and you’ve spent the last 10 minutes not even listening! Words can do that. And just think, these are only a few verses in the entire parsha of Mishpatim. But so often that is all it takes. A few words.
When words become supercharged, it is a societal indicator that we must all take a deep breath and a step back. We must all do as our podcast host and employee did. Study how the word became supercharged in the first place. It is easy to dismiss those who disagree with us, especially when we claim to disagree on moral grounds. It is harder, on the other hand, to make an attempt at understanding, no matter how radically different we might think. Note that understanding does not mean agreement. Rather, understanding means listening, truly listening. When we supercharge words, we give them so much power than they become powerless. And when words become powerless, we are left with nothing but ignorance. “Abortion” and “fetus” are only two of hundreds of words today that are supercharged. I urge each of you, in this next week, to examine those words you turn a deaf ear to, or those words that get your blood boiling, and try to understand–truly understand–the root of the disconnect.