Pain and Punishment: Shabbat Tazria, Friday, April 8th 2016

Imagine, if you will, that you are a woman in childbirth in ancient Israel. What a joyous day it is to give birth to a child – a child who will carry on the traditions of your ancestors, and who will work to sustain the family and enrich the community. As a woman, you, too, should be celebrated – for the power you have to give birth. For the lifeblood within you that makes human life possible.

But according to the Levitical laws in this week’s Torah portion, you are a contagion. The power you have to give life makes you dangerous, even evil. After you give birth, you are isolated, shut away from your family and your community, for 40 days if you give birth to a son, or 80 days if you give birth to a daughter, who also has that power of life within her. And when your days of isolation are over, you must bring a chatat, a sin offering, to the priest – the man who will perform expiation on your behalf.

This seems like no way to treat a new mother. But those are the laws in this ancient, patriarchal society, in which the fear of the life-blood translated into isolation, and even punishment, for a woman’s pain.

But lest you think that this notion only belongs in the ancient world, think again. Because isolation, shame, fear, and sin are the guiding forces behind the battle over reproductive rights in 21st-century America. A battle brought into the news headlines when presidential candidate Donald Trump stumbled most inelegantly into the middle of it.

In case you missed it, MSNBC’s Chris Matthews was asking Trump about his views on abortion law – something you’d think he would have thought of at this point in the campaign. But Trump only recently declared himself “Pro-life” – the misleading name that anti-choice groups give to their cause – and apparently he didn’t get the memo.
To Matthews’s surprise, Trump said that, if abortion were to become illegal, and he hoped it would, that women who obtain abortions should be punished.

That caused a collective gasp, not only from those of us who believe in a woman’s right to choose, but also among those who do not. You see, the anti-choice folks have strict talking points when it comes to such things, and you’re supposed to say that the doctors should be punished but not the women, because the women are victims. Within hours, Trump changed his tune, to adhere to the anti-choice orthodoxy – but not before exposing the hypocrisy of their movement.

Women who seek abortions are being victimized in this country, but not by the health-care providers who have the courage to care for them, under sometimes dangerous conditions. They are victims of a system that has isolated reproductive care in stand-alone clinics, as though it is abnormal, dangerous or even downright evil. They are victims of a proliferating range of state laws that limit the time, place, and conditions under which they can access what are supposed to be constitutional rights; that deliberately make it more difficult and more expensive for both women and their doctors; and that increasingly criminalize intention – why a woman is seeking an abortion in the first place.

The result is isolation, shame, and punishment, perpetrated mostly by male politicians, who seem to have put themselves in the place of the high priest of old, who had the power over women at a time when they were most vulnerable.

Just this week, members of the Pennsylvania House of Representatives fast-tracked legislation limiting abortion to 20 weeks of gestation when federal law established in Roe vs. Wade gives a woman to 26 weeks, and outlawing the most typical type of surgical abortion used in 2nd-trimester cases. The bill didn’t even get a hearing before being approved in committee and sent to the House floor for a pending vote.

Governor Wolf’s office already has said he’ll veto it. And we’re fortunate that we have a governor who supports reproductive justice, unlike in Ohio, Texas, Indiana, Florida, and elsewhere. But the fact that many lawmakers think they can score points in an election year by limiting reproductive rights should make us all worry about the over-reach of politicians into the most intimate and difficult choices we make. And about the way these laws victimize women, isolate them, label them, and punish them.

There are, of course, many people who oppose abortion for any number of reasons, some of them rooted in their own religion’s teachings. But the thing is – religious teachings vary from one religion to another, from one sector of one religion to another. It should be up to an individual to follow his or her beliefs. It should not be the role of government, at any level, to rule that one set of religious beliefs trumps another. Some religious traditions teach that life begins at conception, that a fetus at any gestational stage is a human being entitled to legal protection. Judaism teaches something different.

And that’s really important for me, as a woman, as a Jewish woman, as a Reform Jewish woman, and as a rabbi who counsels people who sometimes have to make these powerful, and difficult, and life-changing decisions.

Our Jewish tradition places the life and well-being of the mother above all other considerations when it comes to abortion – a principle that comes from the Torah itself. Exodus chapter 21 describes a situation in which two men are fighting and a pregnant woman is accidentally injured. If the woman dies, the man who strikes her is considered a murderer. If she lives but the fetus is lost, the man must pay monetary damages to the woman for the injury to her. In other words, the fetus is not a nefesh, not a human being, and so the death of a fetus is not considered to be a capital crime.

But what about abortion? Where do we stand there?

The Halakhah not only permits, but actually requires, abortion, when it’s necessarily to safe a woman’s life – even up to the time when a woman is about to deliver. The Mishnah, which dates from the 3rd century, is actually very graphic in its description: “If a woman is having difficulty in giving birth, we cut up the fetus in her womb and remove it limb by limb, because her life takes precedence over its life. If the greater part already is out, we do not touch it, because Ein dochin nefesh mipnei nefesh, one life does not take precedence over another.”

In other words, the fetus is not a human being until the greater part of its body already has come out of the woman. Even until then, abortion is required on the woman’s behalf.

From this Mishnah, we have two distinct legal traditions that emerge, but both allow or even require abortion in at least some cases. The great Maimonides said the reason we do this is because the fetus comes under the legal category of a rodef, a pursuer, who in Jewish law must be killed to protect its intended victim. If you follow the reasoning of Maimonides, as many Orthodox authorities do, you’d probably conclude that abortion is only permitted when the woman’s life is in danger.

But there’s a second, and equally legitimate and widely accepted, reason given by the pre-eminent Torah and Talmud scholar Rashi, who explained it this way:

“For as long as it did not come out into the world, it is not called a nefesh, a living thing, and it is permissible to take its life in order to save the mother. Once the head has emerged, it may not be harmed, because it is considered born, and one life does not take precedence over another.”

Rashi’s reasoning leads some later halakhic authorities to broaden permission for abortion beyond the threat to a woman’s life to her well-being, be it physical or psychological. And it’s because of Rashi that we as Reform Jews have long argued in favor of reproductive choice on religious and moral grounds.

As early as 1929, the Central Conference of American Rabbis declared urged “the recognition of the importance of the control of parenthood as one of the methods of coping with social problems.” By 1947, the CCAR was calling for Planned Parenthood services in hospitals and other agencies “and urges that the Board of Directors of health and welfare agencies permit their professional staff members to make maximum use of these services as a community health resource.”

Our congregational arm, the Union for Reform Judaism, also publicly supported reproductive rights state by state, as early as 1967, six years before Roe vs. Wade standardized abortion rights on a national level. The appeal was for each state to, quote, “permit abortions under such circumstances as threatened disease or deformity of the embryo or fetus, threats to the physical and mental health of the mother, rape and incest and the social, economic and psychological factors that might warrant therapeutic termination of pregnancy.” Several times since, both the URJ and the CCAR have affirmed this position.

We do not treat abortion lightly. We caution that it should not be treated as a form of birth control. But we also recognize and condemn the inequities in our rapidly multiplying and punitive state laws. Laws that subject a woman to unnecessary and potentially dangerous medical procedures. Laws that discriminate against women of limited means, who have neither the time nor the funds to make multiple trips to far-away clinics. Laws that embrace untested or discredited medical theories. Laws that undermine the ability of clinics to provide timely, safe and effective reproductive care. Laws defunding Planned Parenthood, which not only punish women who seek abortions but also those who simply want to get basic health care.

We support reproductive rights because our Jewish teachings tell us that this is the right thing to do. But as the CCAR declared in 1975: “As we would not impose the historic position of Jewish teaching upon individuals, nor legislate it as normative for society at large, so we would not wish the position of any other group imposed upon the Jewish community or the general population.” In other words, my decision, based on my beliefs, is my business.

As a rabbi, I have the blessing and the responsibility of counseling people at the most difficult and private moments in their lives. I know there are all sorts of reasons for a woman to seek an abortion. Every situation is unique. None is helped by an intrusion of political posturing, or the imposition of somebody else’s stated beliefs, into the intimate lives and decisions of women and their families. Not in Harrisburg. Not in Washington. Not anywhere.

As Jews we believe our tradition gives a woman the freedom to make these choices. As Americans, we believe that the Constitution’s separation of religion and state compels others to recognize that freedom.

Ken yehi ratson. Let us not only pray, but let us work toward this goal of empowerment and justice and freedom. And let us say together: Amen.
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©2016 Audrey R. Korotkin

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