Chancellor's Parashah Commentary
Parashat Mishpatim 5755
January 28, 1995 27 Shvat 5755
Ismar Schorsch is the chancellor of The Jewish Theological Seminary.
At the end of August 1993, I joined some 100 religious leaders of a moderate stripe who were invited by the President and First Lady for breakfast at the White House. What gave the event an added dose of excitement for me was the good luck to be seated at the President's table.
He had brought with him a copy of Stephen L. Carter's recent book The Culture of Disbelief. Over breakfast the President held forth on what he would say to all his guests later: the social issues of the day begged for addressing by religious leaders, but always tempered by the realization that they have no monopoly on truth. I commented to him that I thought Mr. Carter had argued that it was the excesses of the pro-life movement in the abortion debate which disenchanted liberals with the presence of religion in the public square.
The President responded at some length on the 1973 decision of Roe vs. Wade in which the Supreme Court had recognized a woman's right to privacy in terminating an unwanted pregnancy. As a young law-school professor some 20 years earlier, Mr. Clinton had always spent several weeks with his students studying the case. To him, it was a classic instance of a critical question - when does life begin? - on which the absence of any religious consensus forced the court to settle for a scientific/common sense solution. Until the fetus attains viability by the 24th week of pregnancy, the mother's right to privacy and reproductive freedom cannot be restricted by the state.
The President's knowledge and articulateness impressed me. He had parried a potentially damaging thrust. Indeed, Roe vs. Wade was a good example of the elusive balance he sought. The public welfare transcended the dissension in the religious sector, even as it welcomed its input, provided it was restrained by a sense of human fallibility. We were sitting in the State Dining Room just to the left of George Healy's arresting portrait of Abraham Lincoln, seated forward and listening intently. I couldn't help recalling the stinging words from his Second Inaugural Address: "Both [North and South] read the same Bible, and pray to the same God; and each invokes His aid against the other."
This week's parasha brings that episode to mind because it contains the Jewish view on the vexing question as to when life begins. The Torah records the following law: "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... (Exodus 21:22-23)."
Prosaic as this ancient text may be, it relates directly to the most destructive controversy in American society today. We are dealing with a case of inadvertent injury, a pregnant mother caught too close to a brawl. If she loses her baby, but is otherwise unharmed, the punishment for the culprit is monetary compensation to the husband as determined by the court. If the mother herself should lose her life, the assailant would be executed by the court. What is particularly evident is the lesser punishment exacted in the death of the fetus. The Torah does not apply the resonant phrase of "life for life (nefesh tahat nafesh)" when a miscarriage occurs, but only when the mother is killed. Clearly the Torah implies that the fetus is not to be regarded as a person. There is no death sentence but only financial restitution in the case of a miscarriage.
Rabbinic law sustained the same underlying principle that life begins only at birth. The Mishna addresses a tragedy all too common before the advent of modern medicine: "If a woman is having difficulty giving birth, it is permitted to cut up the child inside her womb and take it out limb by limb, because her life takes precedence. If the greater part of the child has come out it must not be touched, because one life must not be taken to save another." Interestingly, in the second case, when the fetus has largely exited from the womb, the Mishna specifically uses the biblical word for "life, nefesh" to forbid any procedure that might be fatal to the child.
Rashi, the Talmud's premier commentator, elsewhere articulates the principle at work in the both the Torah and the Mishna. "For as long as it did not come out into the world, it is not called a living thing and it is permissible to take its life in order to save its mother. Once the head has come forth, it may not be harmed because it is considered born, and one life may not be taken to save another." On the basis of these classical sources and a survey of later rabbinic opinions, Rabbi Isaac Klein, Conservative Judaism's leading decisor, concluded in 1959 that while abortion is morally wrong, it can be performed for therapeutic reasons of both a physical and mental nature (Isaac Klein, "Abortion," Responsa and Studies in Jewish Law, 1975, pp. 27-33).
The extreme and inflexible position of the Catholic Church on abortion stands in marked contrast to the pragmatism of Judaism. I quote from the new Catechism of the Catholic Church, the first in 400 years, given to me last spring by Bernard Cardinal Law of Boston, who, appalled by the December 30 rampage of John C. Salvi 3rd at two Brookline abortion clinics in which he killed two and wounded seven, called for the suspension of all demonstrations at abortion clinics: "Human life must be respected and protected absolutely from the moment of conception. From the first moment of his existence, a human being must be recognized as having the rights of a person - among which is the inviolable right of every innocent being to life." (p. 547) It is noteworthy that whereas Judaism derives its view from the legal part of the Torah, the Church cites for its scriptural basis two poetic passages from Jeremiah (1:5) and Psalms (139:15). The juridical frame of mind is less susceptible to apocalyptic excess.
The right to a legal and safe abortion compels no one to make use of it. We don't criminalize the sale of cigarettes or alcoholic beverages, although both indisputably contribute directly to the deaths of many hundreds of thousands of adult and adolescent Americans every year. The autonomy of the individual, democracy's greatest good, can only be eviscerated if we turn our government into a heavy-handed agent for moral education. Justice Oliver Wendell Holmes observed that "a page of history is worth a volume of logic." Surely that page would show that morality works best from the bottom up.
Shabbat shalom u-mevorach,