By Rabbi Esther Hugenholtz

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Sermon Mishpatim 2019

Seeking Out The Greys

One of the things that my husband and I love about America is passion and vision of the American people. As we like to joke among ourselves, Americans don’t do anything in half-measures. Coming from a culture of placid consensus-building for which we even have an administrative term – ‘the polder model’ (named after Dutch reclaimed land, polders) – it is clear to us that Americans have fire in their bones and it makes this new country vibrant, innovative and inspiring.

As our current timeframe has become more polarized, American passions, for better or worse, have become more inflamed. We can notice this not only in the febrile news cycle but also in our daily interactions. Some of this is a blessing: people are more civically engaged, voter turnout is higher and it forces all of us to confront complex issues. At the same time, there’s no denying that these are draining and fraught times and Internet connectivity and online anonymity means that there are less filters and more instant access.

Among the snap judgments of our age, I am practicing moral discipline by learning about and confronting the difficult questions of American society. I call this my alternative ‘American integration track.’

In that spirit, I have sought out challenging and transformative conversations with people from all walks of life: from African American political activists to Republican, pro-life Mormons and Evangelicals. Each of these conversations has pushed me in some way. I had to learn to disagree or swallow both my pride and prejudice, confront my own power and attempt to unlearn my biases. All took me to a place of existential discomfort and genuine relationship and challenged me to uphold the quote often misattributed to Voltaire but actually coined by a female historian called Evelyn Beatrice Hall in 1906:

I disapprove of what you say, but I will defend to the death your right to say it.

Engaging with difference should not be mistaken with accepting a doctrine of moral equivalency or finding ‘common ground.’ We do not need to paper over our differences. We can be strong in our moral convictions. Yet there is a distinction between moral courage and moral absolutism. We must invite shades of grey.

As I was researching this sermon, I looked at previous sermons I had written about Parashat Mishpatim. Mishpatim is often contrasted to Yitro, last week’s parashah. An oft-used method of interpretation is to contrast the Ten Commandments of Yitro with the legal material from Mishpatim. I have often done this in past sermons, likening the Ten Commandments to ‘klal u’frat’, the rabbinic hermeneutical principle of ‘from the general to the specific’ or comparing Yitro to the Wedding Ceremony and Mishpatim, the Ketubah, the wedding contract.

I would propose a third reading, where the Ten Commandments represent the black-and-white of eternal moral principle and the legal material of Mishpatim represents the shades of grey of lived and legislated experience.

It is not for naught that the Ten Commandments are held in such lofty esteem. Still, the true majesty of the Jewish legal tradition, of Halakhah, lies in the complex and clashing shades of grey: in conflict resolution and legal arbitration, in the acknowledging of different power dynamics in society.

One of those examples is the curious verse that legislates an unintended consequence of miscarriage. In Ex. 21:22, the verse reads:

‘V’chi yinatzu anashim v’nagfu ishah harah, ve’yatzu yeladeiah v’lo yih’yeh ason anosh, ye’anesh ka’asher yasit alav ba’al ha’ishah v’natan biv’lilim’ – ‘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 extract from him, the payment to be based on reckoning.”

To clarify, the scenario is as follows. Two men are physically fighting. The first man strikes the abdomen of the pregnant wife of the second man. She miscarries the fetus but remains otherwise unharmed. Torah law mandates that the first man is liable for charges.

What is significant in this passage is actually the verse that follows on from it: ‘But if other damage ensues, the penalty shall be life for life…’

The assumption here is that the woman has an independent status from the fetus. The fetus, although considered precious, sacred and worthy of monetary compensation, does not have the same legal status as the woman who is considered to have full personhood and worthy of full compensation if she herself is injured or killed. Although Hebrew Scripture does not address abortion outright, it is this verse that sets the precedence for Judaism’s nuanced position on pregnancy termination. Judaism sidesteps the polarizing, politicized pro-choice versus pro-life dichotomy. The tradition argues that the fetus has its own moral integrity, hence curtailing at least philosophically, abortion-on-demand. At the same time, Jewish sources are clear that the woman’s life (and arguably, her wellbeing) as a matter of principle, takes precedence over the fetus in utero. In some cases, Halakhah does not only permit the termination of pregnancy, such as in cases of fetal abnormality or maternal distress, but mandates the termination of pregnancy if the woman’s life is in danger.

As the note in the Etz Haim chumash to Ex. 21:21 states:

“Because the Torah demands only a monetary payment for the fetus in contrast to “life for life” for the woman, the fetus is not considered to be a full-fledged human being, and abortion is not murder. It is, however, an injury to the woman; and as such, abortion is generally prohibited.

It is allowed only to save the physical or mental health of the mother. Many authorities, including the CJLS, permit abortion to prevent maternal anguish over the prospect of giving birth to a child with severe defects. Abortion is not permitted as a retroactive form of birth control.”

As a foreign-born Rabbi, I feel torn when it comes to preaching on this topic. Where I come from, the abortion debate, as is expected in a secular culture favoring consensus rather than conflict, is far more muted. With every moral challenge in the United States, I engage in a calculus: assessing whether I should (or am equipped to) speak out. To not bring Jewish teachings to the moral calling of the age would mean I am remiss in my rabbinic duties.

I am sure many of us have been following the rulings regarding the Iowa Fetal Heartbeat Bill. Apart from the gross and misleading misnomer (an embryo doesn’t medically transition to the status of fetus until the beginning of the second trimester), this Bill, which for now has been defeated, would have real ramifications for all women in the State and therefore presents us with pressing moral questions. Recently, New York ruled in favor of the Reproductive Health Act. This act removes abortion from the penal code and allows abortions after 24 weeks in cases where there is an “absence of fetal viability, or the abortion is necessary to protect the patient’s life or health”.

According to the Guttmacher Institute, a policy-based family planning institute that tracks demographics and medical data regarding human reproduction, only around 1% of abortions occur after 21 weeks, giving credence to the notion that these late-stage abortions tragically are often performed for medical reasons on much-wanted pregnancies.

Both the medical sources and Jewish textual sources mapping the nuanced landscape of abortion are much too exhaustive for this one sermon, and for those wishing to learn more, I could offer a more in-depth study session at another time. The purpose of this sermon is not to embrace moral absolutism but to explore the greys – not just as an intellectual exercise, but as a honing of our instinct of empathy.

Mishpatim is relevant to the world today. The ancients had to legislate for the cruel realities of their world, and we are charged to do the same. Life calls for moral clarity without relinquishing Life’s complexity. What inflamed passions do not allow us to do is to see an issue from multiple angles, to sit with our own discomfort and to educate ourselves. It does not allow us to distinguish between theory and practice, between a legal construct and an actual decision. Jewish thought, in all its diversity, rules compassionately on such life-or-death matters, negotiating the greys.

The liberal Jewish denominations continue to uphold a woman’s right to choose with the full understanding that sound moral decisions can only be made when choice is available.

The power of the Torah is to bring ancient perspectives to modern questions and to transcend the demands of passion, popularity and partisanship. Taking Jewish ethical thought seriously means embracing our discomfort, incorporating the evidence and balancing reason with compassion. That discipline, calling to us from the pages of the Torah, is as much needed now as it is then.

May we be blessed to find humility and clarity, compassion and restraint in how we answer the pressing questions of our time.