Rabbi Daniel Brenner: Reproduction Shabbat

Some of you may have seen that I was asked by the Santa Barbara News Press to comment on the Supreme Court decision to allow CA houses of worship to hold indoor services.  I told the author of the article that we would not be coming back to in-person services as a result of the ruling.  She seems a bit surprised.  I told her the same words I wrote back in May as restrictions on public worship first lifted: Just because we can be together, doesn’t mean we should.  I believe that the decision our synagogue has made, and houses of worship all across CA have made as well, is out of an effort to put Moral leadership before popular leadership.  

This is, in a way, the beauty and challenge of the American judicial system.  The rulings of the courts do not dictate any sort of moral code.  There are plenty of things that are legal but still immoral.  But we are given the flexibility to make a moral choice within a legal system.  This is what separates a secular law code from a religious one.  Torah law attempts to combine law and morality based on the desire of a God for creation.  The Torah portion this week is a perfect example.  Mishpatim, literally meaning Laws, or statutes, contains legal ramifications for breaking the law such as paying restitution when accidentally damaging another’s property, and moral acts of returning a lost animal to its owner.   

Torah law, at its inception, was a departure from other ancient codes.  In the Mesopotamian legal system, people were often assigned a monetary value, and in the case of murder, the victim’s family would extract a payment from the murderer as recompense.  In the Torah on the other hand, where human life could not automatically be converted to dollar, punishment for murder was death.  Murder was not just a crime against a person, it was a crime against God.  

It is good in my opinion that the judicial system is not meant to impose what is or is not moral, only what is or is not legal according to our Constitution.  However, that openness allows our legislatures to make those choices for us.  What is our recourse when legislators take that freedom of morality and create laws that they are within their purview to make, but are immoral according to our values? 

This conflict is particularly present in our country’s ongoing struggle around abortion and reproductive rights.  There is an ongoing tug of war between the judicial and legislative branch around issues of contraceptive access, pregnancy planning, and funding for clinics like Planned Parenthood.  In the landmark Roe v. Wade decision of 1973, the supreme court ruled that a state could not make abortions illegal, that the medical procedure chosen in one out of every six pregnancies was a woman’s right.  There has never been a time where this right has been in such danger as now. Since 2011, more than 400 state laws have been passed attempting to restrict access to this right, and right now, there are 17 cases only 1 step away from the Supreme Court.  It is highly likely that we will see this court take on the issue once again, and its decision could have dire consequences.   

This Shabbat nationally is Reproduction Shabbata program of the National Council of Jewish Women, and co-sponsored by dozens of national Jewish organizations from the Reform, Conservative, Reconstructionist, and Humanistic movements.  In dozens of synagogues across the country tonight, rabbis are reaffirming the Jewish commitment to contraceptive access, and the right to choose.  I am joining with my colleagues in this call at a time when that right has never been in more danger.  

This Shabbat was chosen based on a passage, a painful and problematic passage, from this week’s Torah portion.  It reads, “When two people 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 [in other words if the woman also dies], the penalty shall be life for life.”  As gruesome and painful as this passage is to hear, it also serves as the basis for numerous talmudic rulings on the legality of abortion.  The passage suggests that a fetus, while precious and valuable, does not equate to human life.  If the fetus is lost, a monetary fee is paid, but if the mother’s life is lost, the penalty is death.  According to the Talmud, life starts at birth, not at conception.  Perhaps not surprisingly, there is no concept of viability in Talmud. Medical research had not progressed that far at that time.  

 Jewish law is clear that in the case of threat of health of the pregnant individual, abortion is not only an option, it is a commandment, an obligation.  Judaism commands that we save a life no matter what.  But noted Orthodox legal scholar from this century, Rabbi Aharon Lichtensteinzichono livracha, wrote that Pikuach nefesh [where a life is at stake] is not the only reason one might terminate a pregnancy.  Other factors are allowed to be taken into account as well, including sh’lom bayitpeace in the hometza’ar, pain and suffering both physically and mentally, and kavod ha’briyot, the dignity of an individual.   

It should be made clear that Judaism does not advocate for abortions as a positive thing.  Our most basic commandment as Jews is to be fruitful and multiply.  Bringing children into the world, and caring for those who are already here, is of utmost significance.  But it is also clear that Judaism, even in Orthodox circles, accepts the necessity of such a procedure.  

We live in California, a progressive state, for better or worse, but a state that has committed to providing access to contraceptive health care and abortion facilities, at least on paper.  But according to a 2020 report from Powertodecide, two and a half million Californians live in a county with limited to no access to appropriate health options.  Those two and a half million Californians join an additional 17 million across the US with little to no access.  A Supreme Court Decision to overturn, or change the ruling of Roe v. Wade will cause that number to significantly increase, and we Jews have a moral responsibility to ensure that access for others, even if it is a choice we would not make for ourselves.   

This Torah portion also calls on us to not oppress the stranger, and to protect the vulnerable in our community. If the Supreme Court makes the legal decision to remove state restrictions on abortions, responsibility will fall to individuals to advocate for moral leadership to be upheld at the legislative level.  Laws restricting access to abortion do not stop abortion, they just prevents safe, legal abortion.

On Yom Kippur I spoke of the miscarriage my wife and I suffered in our first pregnancy, and the taboo nature of speaking about such personal life moments.  Abortion, even more than miscarriage, is a topic not often spoken about in Jewish circles.  Those who have made this choice for themselves often feel they must make it without any friend support or knowledge to avoid embarrassment.  And as one in four people who can become pregnant will chose at some point in their lives to have this procedure (including within the Jewish community), WE Testify founder Renee Bracey Sherman is correct when she says, “all of us love someone who has had an abortion, whether we know it or not.”  I have spoken with some who have made this choice, and spoken of the physical and mental pain they personally endured.  They expressed fear of how others would react if they found out.  We as a welcoming and warm Jewish community need to be willing to open ourselves up to those who maybe make different personal choices than we might, but are still in need of love and support.  

And we as a Jewish community should look past labels of liberal or conservative, and see the ability for one to forego a pregnancy for what it is, a moral necessity of Jewish law for the protection of life, the honoring of individual choice, and the separation of one’s personal religious views from public law.  

Shabbat Shalom.