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Healthcare, Hystera, and Halakha

01/28/2022 11:08:34 AM

Jan28

"At 16 weeks [pregnant], I had an abortion. My son was diagnosed with a fetal anomaly that was 100% incompatible with life. I lived in Texas where the laws (Texas House Bill 2) at the time prevented me from getting the abortion care that I needed at the time that I wanted it. There was a 3-4 week waiting list as well as a 3-4 day process. The laws had such a profound impact on my mental and emotional health that I ended up traveling to Florida, where I was able to get the abortion done within 48 hours of the diagnosis and was at the clinic for no more than 6 hours. I share my story so that people can know that there are a myriad of reasons people seek abortion care. I speak to share my truth in hopes that it will inspire others to share, to act, or to rethink their position or understanding of abortion and what abortion care really means. I also speak for those that are afraid to speak out due to the stigma that surrounds abortion, especially those later in pregnancy.

These are the words of DR. VALERIE PETERSON from Dallas, TX, who shared her story with the National Council of Jewish Women as part of their materials offered for this weekend’s ReproShabbat. We are all impacted by access to reproductive health care in different ways. While Dr. Peterson’s story may sound like the obvious example of exceptions to an anti-abortion rule, the truth is that any reason to need an abortion is a valid and personal one, and it is not for others to judge. This ReproShabbat, let us explore our tradition’s wisdom on reproductive health and our work in the political world to advocate for just access. Know that each of our own stories matter. Your story matters. I want to be clear that though I may not have first hand experience with this topic, I understand this is not an abstraction. There are many reasons to have an abortion and a lot of possible emotions tied up in the decision, but the judgemental stimatization of others should not be a factor in how someone makes a personal decision for their own bodies or how they process their emotions about it afterward. Jewish law is clear on its support, and while traditional understandings may not be 100% uncritical or unquestioning as to the reasons and excuses, it is broad enough that I as a Reform Rabbi feel 100% comfortable with saying that my unquestioning and uncritial support is rooted in scripture and halakha. Know that I am here to offer pastoral support any facing such potentially consequential decisions about pregnancy.

I've spoken about reproductive rights before, when abortion access has been threatened and when the Religious Action Center of Reform Judaism and the National Council of Jewish Women has suggested a ReproShabbat in recent years. The Jewish law on abortion hasn’t changed. If anything, as society as a whole becomes more equitable and Reform Judaism becomes more progressive yet rooted in Jewish tradition, the applications for Jewish law in defense of abortion have gotten broader. 

The halakha around reproductive freedom largely stems from this week’s Torah portion. Exodus 21:22-25 states: “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.” In other words, if someone accidentally causes a miscarriage to take place, they are obligated to pay financial reparations only; the case is not treated as manslaughter or murder, which would demand the death penalty. The “other damage” that would demand the death penalty (“life for life”) would be the death of the pregnant person (or some other serious punishment relating to the damage caused--”eye for eye, tooth for tooth...”) Causing a pregnancy to end is not, in the Torah, considered murder.

The rabbis over the centuries have continued to discuss the essence of the fetus and it’s status as it evolves to become a person. Personhood is not conferred upon a baby until it is born, but only in the first 40 days of pregnancy is the zygote considered “mere fluid” - as in a bodily fluid of the gestating person. That leaves a good 7 and a half months in between where the status of the fetus is a little more ambiguous for the Talmud to debate. Still, by the time Maimoinides codified the laws that emerged from the Talmud and evolved over a couple hundred years between the closing of the Talmud and his writing of Mishnah Torah, it is agreed that if the birth is dangerous the fetus is considered a “rodef” - a pursuer to murder. Thus the halakha permits very late term abortions if necessary. While the debate about “late term abortions” in contemporary legal discussions generally refer to pregnancies into 20-25th weeks, halakhically even the mythical 9 month abortion is acceptable if the birth process is looking lethal, which makes the moral panic around the 5th month look all the more unJewish to me. In the eight hundred years since Maimonides, many more rabbis of all denominations and from every country with significant Jewish populations have written about what counts as a threat to the life of the birth-giver. 

Depending on the rabbi and the school of thought, abortion even after the first 40 days may be permissible not only for physical dangers, but if the birth of the child will lead to the ruinous reputations of pregnant person or their family, if the pregnant person cannot afford to care for another life (or even the cost of a healthy pregnancy and birth - consider that the average hospital delivery now costs around $10,000), if there are mental health concerns, if the person who impregnated the other is abusive and the child would keep them trapped in a toxic relationship. And these aren’t all contemporary liberal responsa; these include writings from the last 300 years, predating even any denomination other than what we would now recognize as Orthodox.

Still, as Judaism has expanded it’s understanding of the need for particular reproductive healthcare options for people with uteruses, American law-makers are ever constricting access or sensitivity to those same needs. In 2021 more than 600 anti-abortion access laws were introduced in 47 states across the U.S., with more than 100 actually enacted already. This is the greatest number of threats to reproductive choice and healthcare since Roe v. Wade 49 years ago. Many of these laws seek to define fetal personhood in accordance with the lawmakers’ understanding of their own Christian beliefs, enforcing those beliefs on the bodies of other people. Jewish American author Cynthia Ozick wrote: “What our faith communities would be wise to choose is religious responsibility undertaken autonomously… turning their backs on anyone who proposes that the church steeple ought to begin to lean on the town hall roof.” 

One in four people who can become pregnant will have an abortion by the age of 45, a majority of whom already have at least one child. Another halakhic side note on this as well: Jewish law stipulates that the first Biblical commandment, “Be fruitful and multiply,” only applies to men because even the ancient rabbis understood that forcing someone to give birth is onerous and unrealistic. In one of the volumes of the Jewish historical fiction series, Rashi’s Daughters, one of the daughters discusses with her husband the decision to no longer procreate after they have fulfilled the mitzvah once, in part because of how difficult the first birth was. A second would likely kill her. Although in that scenario, my memory is that they turn to contraception, it could just as well apply to a case if she were to get pregnant a second time she would be well within her rights to end that pregnancy.

Anyway, this 25% of people surely includes Jews, and members of almost any Jewish community. Whether or not we are aware, I would hazard a bet that everyone here knows someone who has had an abortion. Because of the stigma around it, those who have had them may not feel comfortable talking about it or ever admitting to having had one. It is important for Jews to support and advocate for the people who need this healthcare option, in accordance with traditional Jewish laws, progressive Jewish values, and humanistic support for equity and health. 

One more story from someone who has had an abortion, courtesy of the ReproShabbat Toolkit. Alejandra Pablos of Washington, DC and Arizona says:

When I became pregnant, I knew the current political situation would devastate the family I would create. The same people who would force me to continue my pregnancy are the same people who would rip my baby from my arms and deport me because of my immigration status. I can’t ignore the irony of lawmakers whose only mission is to control a woman’s body, and refuse to support us in accessing childcare and livable wages for our families. I chose an abortion because comprehensive sex education wasn’t a thing. I made this choice because I did not want to be a parent. The decisions we make are supported by our very own lived experiences. Trust us. I know that when a mom is separated from her daughter, whether it is a country that separates them or an immigration prison, you might as well rip her heart out. I know this because my mother had to suffer through our separation once. I was detained in an immigration prison for two years, and my mom and my family visited every weekend. The difficult part for me really was the fear I feel every day. I am afraid that the broken, cruel immigration system in the U.S will tear me away from my family, from my child if I had one. I see it every day, everywhere, families ripped apart by ICE, parents displaced in prisons, daughters in jails, sons in deportation proceedings. Fear. I cannot begin to think of planning a family when I know I am facing a racist system that is here to oppress brown and immigrant people.

The ReproShabbat, may all people find access to the healthcare they need, strength to ask for it, and support through the experience. Amen and Shabbat Shalom.

Thu, March 28 2024 18 Adar II 5784