Refugee and Reproductive Rights Shabbat

Parshat Mishpatim contains many laws that are necessary for society to function. Two of them deal with special Shabbatot that are this month. One is the HIAS Refugee Shabbat. As it teaches in Mishpatim, “You should love the stranger: for you were strangers in the land of Egypt.”[1] The term “ger” means one who arrives from another land who seeks to live with of another people. Today we see many people who are refugees leaving carnage in hopes of a better life. One of them is the Shpilman family, who came from the destroyed Ukranian city of Mariopul to Sacramento thanks to our Welcome Caravan. Mishaptim reminds us that we never fit in Egypt and that we need to remember those who are at the margins of societies.

Parshat Mishpatim also relates to the NCJW Repro Shabbat. As we look at a series of laws relating to damages, we come across this statement: “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.”[2]

It is telling that in causing a miscarriage a person is fined whereas in harming one who is born the punishments are far more severe. In order to understand why this is the case we need to look at the Mishnah where we have the following statement: “If a woman is having trouble giving birth, they cut up the fetus in her womb and bring it forth limb by limb, because her life comes before the life of [the fetus]. But if the greater part [of the fetus/baby] has come out [of the person giving birth], one may not touch it, for one may not set aside one person’s life for that of another.”[3] As soon as the head crowns, one is considered a human being-until that point, lesser than a human. Another section of the Talmud illustrates this further: “If she is found pregnant, until the fortieth day it is mere fluid.”[4]

These are well-known texts, which I taught at my class on abortion in August and in the first Jewish Take video produced. It is important to acknowledge that Judaism does not permit abortion on demand. Furthermore when a baby is born all efforts must be made in pikuah nefesh, saving the life. Concurrent we must acknowledge that Judaism does allow abortion not only to save the mother’s life but when the birth of a child threatens emotional well-being. Rabbi Aharon Lichtenstein of Yeshivat Har Etzion in Alon Shvut, who not only received rabbinic ordination from Rabbi Soloveitchik but also a PhD in English Literature from Harvard, wrote “saving a life is not the only sanction for permitting an abortion. It would seem to me that issues such as kavod ha’briyot (human dignity), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant [Jewish legal] weight in other contexts, should be considered in making these decisions.”[5] This is a broad definition of emotional harm, including the need for peace in the house as a reason why an abortion may be permitted.

Returning to our Torah portion, it is important to acknowledge that at a very different time period than ours, one where slavery wasn’t allowed and where women’s rights was certainly not primary, a distinction is made between a miscarriage and a baby who is born. At the same time I would be remiss to not touch on a related topic also of emotional harm: the couple who strives to have a child only to not be able to become pregnant, who becomes pregnant only to miscarry or who has a pregnancy where they find out that the baby will not have a quality of life and that termination of the pregnancy is recommended. In each of these cases, there is so much emotional harm-just as we see in the stories of our matriarchs who wanted children yet struggled to become pregnant. We need to acknowledge that we are dealing with real people and that everyone’s situation is unique from others. Whenever we take an ideological position, be it “Life begins with conception” or “Abortion should always be allowed” we deny the voices of people who are going through very personal struggles. We need to spend more time helping people realize, in the words of Dear Evan Hansen, that “You are not alone.” Our feelings, our emotions and our stories matter. Similarly, often in life we feel one way until we meet someone from a different lived experience that changes our perspectives. As we gather together in a month that has become known for both Refugee Shabbat and Reproductive Rights Shabbat, let us not lose sight of this-that when we truly make an effort to get to know the other, we have the potential to go through transformative experiences.

[1] Exodus 22:21

[2] Exodus 21:22-25

[3] Mishnah Oholot 7:6

[4] Babylonian Talmud Yevamot 69b

[5] Aharon Lichtenstein, “Abortion: a Halachic Perspective,” in Tradition: a Journal of Orthodox Jewish Thought, Summer 1991, Page 10.


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