The Torah of reproductive justice

By Rabbi Shira Wallach
Parashat Mishpatim

Many would argue that there is no greater mitzvah than peru urevu, the very first law given to us in our Torah, to be fruitful and multiply. Indeed, bringing new life into the world is a foundational happiness that gives the entire Jewish community faith in the future. We gaze upon the cooing, sweet bundles of joy and see in them the possibility of our most important values and memories surviving beyond our own lives. In fact, Shearith Israel gathers together every year for Tiny Treasures, a ceremony to welcome and bless all the new babies born to or adopted by parents or grandparents in our community, and this year is no different. Though the pandemic prevents us from celebrating in person, we will come together this Shabbat, over Zoom, to bask in the radiance of new life and support new parents as they navigate spit-up and sleepless nights.

This year, as we study Parashat Mishpatim, we include another story in the narrative of our people. We join together in observing Repro Shabbat, an initiative organized by the National Council of Jewish Women, to educate Jewish communities about the importance of reproductive freedom. Why on this Shabbat?

Our weekly Torah portion contains this teaching: “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” (Exodus 21:22-25). This law becomes central to the Jewish conversation around abortion.

The Talmud (Sanhedrin 87b) points out the distinction that the Torah makes regarding restitution for damages: The fetus is worth only money, while bodily harm requires an equal injury in the responsible party. The Rambam (Mishneh Torah, Laws of Injury, 4:1) writes this idea into law, codifying the difference between a fetus and a life.

Similarly, the rabbis of the Mishnah (Oholot 7:6) declare that life begins at birth, demanding that if a woman is experiencing peril in childbirth, any medical intervention may be taken to save her, even if it kills the fetus. But if most of the baby has been delivered, “one may not set aside one person’s life for that of another.”

In the last few centuries, our conversations around abortion have continued to develop. Halakhic authorities like Rabbi Jacob Emden (1697-1776) permitted abortion even if the mother’s life was not in direct jeopardy, but to save her from great pain. Rabbi Mordechai Winkler (1845-1932) taught us to consider mental health as seriously as physical health. Rabbi Ben Zion Chai Uziel (1880-1953) permitted abortion to prevent disgrace, and Rabbi Eliezer Waldenberg (1915-2006) considered both the pain of the mother and the future suffering of the child. Ultimately, Rabbi Aharon Lichtenstein wrote in 1991: “It is clear that saving a life is not the only sanction for permitting an abortion…It would seem to me that issues such as kevod habriyot, dignity, shalom bayit, domestic peace and tza’ar, pain, which all carry significant halachic weight in other contexts, should be considered in making these decisions.”

Abortion is as much of a Jewish story as having kids. As the NCJW literature points out: “It’s part of our lives; one in four people who can get pregnant will terminate a pregnancy by the age of 45. In the wise words of reproductive justice and We Testify founder Renee Bracey Sherman, ‘everyone loves someone who has had an abortion, whether they know it or not.’”

This Shabbat, we call on our communities to normalize conversations around reproductive health, resources and dignity. We must build and cultivate loving spaces that celebrate all parts of the lifecycle, all journeys of struggle and joy.

Further reading, Jewish sources and advocacy opportunities:

Rabbi Shira Wallach serves Congregation Shearith Israel. She is a member of the
Rabbinic Association of Greater Dallas.

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