(Reproductive) Justice and the dream of sky: Mishpatim 5783 / 2023
February 17, 2023
This week's Torah portion, Mishpatim, is full of justice-related mitzvot. Like: if you dig a pit and you don't cover it, and somebody's animal falls in and dies, you’re responsible because your negligence caused its death. And: do not wrong or oppress the stranger. And:
"When parties 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, the payment to be based on reckoning." (Ex. 21:22)
Let’s unpack this. If someone causes a miscarriage, they owe damages. Damages, not "they get sent to a city of refuge." Elsewhere Torah teaches that in order to stop the cycle of retaliatory violence, we are to establish cities of refuge, where someone who has unintentionally committed murder can go and not be subject to blood revenge. But that’s not mentioned here, only the payment of a fine. Ergo, in Torah’s view, causing a pregnancy to end is neither manslaughter nor murder.
Torah is the beginning of the conversation, not the end. So where does our tradition take this? Mishna (c. 200) teaches that in the case of a difficult labor where the pregnant person's life is at risk, do what we would now call a D&C. In the Talmud (c. 600), R. Yehuda HaNasi holds that a fetus is considered as a limb or an organ in the pregnant person's body until it draws first breath.
Mainstream Judaism has long taught that if there is danger to the pregnant person's life, abortion is not only permitted but required. This is often rooted in teachings about a rodef, a pursuer who would cause harm. If the fetus would cause harm, we privilege the life of the pregnant person, again until first breath. R. Eliezer Waldenberg (d. 2006) argues that abortion is permitted even if the danger is "only" emotional distress or harm.
Our religious worldview is entirely different from the one that has criminalized not only abortion, in half of this country, but now even miscarriage. According to their understanding of their religion, a zygote has the same rights as the person in whose womb it is carried. It's not my job as a rabbi to have opinions about when some Christians think "life begins." But it is my job to be clear about three things.
- Judaism teaches otherwise. (See this week's Torah portion.)
- Torah also teaches not to wrong or oppress the stranger. (Again, see this week's Torah portion.) Forcing someone to carry a pregnancy is a profound wrong.
- No one should be able to impose their theology on anyone else's body.
Granted, NPR reports that more than half of Republicans nationwide believe that this should be a Christian nation. I’m not thrilled that a majority of one of our major political parties would prefer that our nation be a theocracy. But this is where we are.
Massachusetts feels fairly safe. Our rights are protected by our state laws... unless the federal government enacts a nationwide ban on reproductive healthcare. (Which the religious right hopes to do.) But even if we feel safe here and now, Torah instructs us to concern ourselves with the needs of the widow and the orphan and the stranger -- in Torah's paradigm, the people with the least cultural capital and the least power.
In our day, that could mean asylum-seekers, refugees, people who are trans or gender-non-conforming. Black and indigenous people of color. People living in poverty. People living in prison. People living in forced-birth states, who don't have the means to take time off to travel to another state where their right to their own body is still intact. (Also the Christian right may be trying to make that illegal too.)
Right after SCOTUS gutted Roe, I saw a lot of people posting on Facebook that if anyone needed to "vacation" in Massachusetts, they would open their homes. “Come on up, stay with me, I'll drive you to... wherever you need to go ...and offer you a hot water bottle and some tea afterwards.” Come "vacation" in a free state! Wink, wink.
It was a clear expression of care. And, I think, of rage at the Supreme Court and at our own impotence. It was also basically useless. What are the odds that someone in a forced-birth state would ever see (or trust) a FB post from someone they didn't know?
You’ve all heard me quote Mariame Kaba’s wisdom that “hope is a discipline.” She also reminds us not to reinvent the wheel when it comes to working toward justice. Better to channel our energy and resources toward people who are already doing the work.
So maybe instead of offering a guest room on Facebook, we can donate to the National Council of Jewish Women, who maintain a Jewish Fund for Abortion Access. Or: support the American Civil Liberties Union, which is challenging abortion restrictions in courthouses and state legislatures across the country.
Or donate to Sistersong, the Black organization that coined the term “reproductive justice:” the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” Sistersong is the largest national multi-ethnic Reproductive Justice collective.
Reproductive justice is a much broader framework than simply “the right to choose,” or even the right to choose plus access to safe reliable healthcare. It’s about everything: access to food, affordable shelter, education, ending carceral foster care, ending gun violence, and more. All of these are part of what it would really look like to rear children in a just world.
And we can take heart that the majority of Americans do agree that bodily autonomy is a core human right. In 2022, voters in Kansas overwhelmingly opposed a constitutional amendment that would have removed that state's protection of a pregnant person's fundamental right to autonomy. That took a lot of on-the-ground effort: knocking on doors, fighting misinformation, and one-on-one conversations. But that’s what works.
In our ancestral story, after leaving Egypt we spent forty years wandering in the wilderness. There were plenty of setbacks, and some people wanted to turn back. But we made it to Sinai, to covenant and revelation. These post-Roe years may feel like wilderness, but we can't give up. We have to keep trying to build a world of greater justice. We owe that to future generations, and to those who have it worse than we do.
Also in this week's Torah portion, there’s the verse we've been singing this evening. This is the scene where Moses and Aaron and seventy elders ascend to heaven and behold "the God of Israel -- under whose feet was the likeness of sapphire brickwork, like the very sky for purity." (Ex. 24:10) And they eat and drink at a banquet with God.
From the mundane to the sublime. Here's what to do if your ox gores somebody, and here's a vision of the Holy One of Blessing across a floor of sapphire sky. This juxtaposition teaches that the loftiest moments of our spiritual lives are not separate from the earthly details of ethical living. They can't be. "Spiritual life" that doesn't ask our ethical behavior is meaningless.
In that vision our ancestors saw something like "sapphire brickwork" -- perhaps a reminder of the bricks we slaved to build under Pharaoh's oppressive regime. But now the "bricks" are the blue of the sky itself: infinite, open, free. We’ve gone from the compression of mud to brick, to the sky's wide-open expanse. What a beautiful metaphor for the journey from oppression to liberation, from rights stripped away to human dignity wholly honored. May we build that world speedily and soon.
I’ll close with words from poet Aurora Levin Morales:
when you go out and when you return. In times of mourning
and in times of joy. Inscribe them on your doorposts,
embroider them on your garments, tattoo them on your shoulders,
teach them to your children, your neighbors, your enemies,
recite them in your sleep, here in the cruel shadow of empire:
Another world is possible...
[I]magine winning. This is your sacred task.
This is your power. Imagine
every detail of winning, the exact smell of the summer streets
in which no one has been shot, the muscles you have never
unclenched from worry, gone soft as newborn skin,
the sparkling taste of food when we know
that no one on earth is hungry, that the beggars are fed,
that the old man under the bridge and the woman
wrapping herself in thin sheets in the back seat of a car,
and the children who suck on stones,
nest under a flock of roofs that keep multiplying their shelter.
Lean with all your being towards that day
when the poor of the world shake down a rain of good fortune
out of the heavy clouds, and justice rolls down like waters...
Imagine rape is unimaginable. Imagine war is a scarcely credible rumor.
That the crimes of our age, the grotesque inhumanities of greed,
the sheer and astounding shamelessness of it, the vast fortunes
made by stealing lives, the horrible normalcy it came to have,
is unimaginable to our heirs, the generations of the free.
Don’t waver. Don’t let despair sink its sharp teeth
Into the throat with which you sing. Escalate your dreams.
Make them burn so fiercely that you can follow them down
any dark alleyway of history and not lose your way...
Hold hands. Share water. Keep imagining.
So that we, and the children of our children’s children
Aurora Levins Morales
This is the d'var I offered at Kabbalat Shabbat services at Congregation Beth Israel of the Berkshires (cross-posted to my From the Rabbi blog.)
Shared with gratitude to the NCJW for their collection of reproductive justice resources, and also to my advance readers for sermon suggestions.