The Roots of the Amicus Brief
The Roots of the Amicus Brief
Following the giving of the Ten Commandments in last week’s Torah portion, Parashat Mishpatim brings us a diverse collection of civil, criminal, ritual, and ethical laws. Included in the parashah is a section of text that has become relevant to a topic that is highly contested in our day.
Next month, the Supreme Court is scheduled to hear Whole Woman's Health v. Cole, a challenge to a restrictive Texas abortion law. It will be the first time in more than 20 years that the Supreme Court has heard an abortion case.
As you might expect, religious groups have plenty to say about the case. But it might surprise some people to learn that the religious perspective is hardly one-sided. For decades, Reform Judaism has been one of our country's strongest religious voices in support of women's reproductive rights. The latest expression of this support took place just a few weeks ago, when the Union for Reform Judaism and the Central Conference of American Rabbis joined more than a dozen other religious organizations and 1,200 clergy of various faiths in submitting an amicus brief regarding Whole Woman's Health v. Cole to the Supreme Court. The brief explained:
Amici belong to faiths that recognize that each woman has the moral authority to make her own decisions about her pregnancy. As religious leaders and pastoral counselors, amici provide spiritual guidance to women facing this decision and believe that this complex decision is ultimately a moral one. That choice should not be restricted by burdensome regulations or the availability of resources. . . . While various religious groups in this country hold differing views on abortion, there is substantial agreement with amici's view that women have a moral right to make their own decisions on the issue."
The story of how the URJ, CCAR, and other Jewish groups came to this position is a complicated one that can be traced through centuries of Jewish law. There is no straightforward law about abortion in the Torah. But there is a Jewish perspective on abortion, and most scholars trace the beginning of that view to a few verses in this week's Torah portion.
When two 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 … 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. (Exodus 21:22-25)
The text describes a scene in which a pregnant woman is in the wrong place at the wrong time, and she is accidentally injured. But what sort of injury is it? The Torah portion considers two cases: first, that the trauma is to the fetus, and the injury causes the woman to miscarry; second, that the trauma results in some other kind of injury to the woman herself.
In the history of Jewish interpretation, these verses have been understood to indicate a clear distinction between the potential life of an embryo or fetus, and the life of a living human being like the pregnant woman. The distinction is seen in the difference between the punishments: in the first scenario the penalty for the loss of the fetus is only monetary, while in the second scenario the death of the pregnant woman would be a capital crime. That essential distinction — that a fetus, while precious, is not equivalent to a fully formed human life — lays the foundation in later Jewish law for a relatively permissive view of abortion. Because pikuach nefesh, the "saving of a human life," always takes precedence in Jewish law over other concerns, the morality of abortion in Judaism is always tied to the welfare of the pregnant woman. The amicus brief sums up the Jewish position this way:
Traditional Jewish teachings view abortion as a permissible means to safeguard a woman's wellbeing. While Orthodox Judaism is split over the morality of non-therapeutic abortions, there is a strong consensus among Reform, Reconstructionist and Conservative rabbis that "[w]omen are capable of making moral decisions, often in consultation with their clergy, families and physicians, on whether or not to have an abortion.2
If the Torah is so clear on the matter, how is it that Christians, who also consider Exodus to be sacred scripture, have such a wide range of views about abortion, in many cases opposite from the Jewish view? One fascinating piece of the answer involves translation.
The meaning of the verses in their original context is ambiguous,3 but ancient Rabbinic scholars based their views on their best understanding of the Hebrew. The Jews who wrote the ancient Greek translation of the Hebrew Bible known as the Septuagint, however, had a different understanding of the verses. Simply by translating one word differently, the Septuagint lays out two different scenarios in the verses. Instead of juxtaposing an injury to a fetus to an injury to a woman, the Septuagint's version of the text juxtaposes an injury to an "imperfectly formed" fetus to a "perfectly formed" fetus. 4
In the Jewish world, the Septuagint is not considered to be an authoritative translation, so this view is rejected as a mistranslation of the Hebrew. But the Septuagint plays a much more influential role in Christianity. It served as a primary biblical source for many early Christians, and is often understood to be the proper translation of the original Hebrew, and the most authoritative version of the text. Because of this, the Septuagint's version of the case — and its suggestion that the loss of a fully formed fetus is considered a capital crime — gives some Christians a very different perspective on abortion.
How ironic that an issue that is often so polarizing and divisive in our country can in some sense be traced to different understandings of the same biblical verse. To me, it inspires some humility when it comes to our understanding of the Bible — which is to say, our certainty about God's will. The best we can do is to study, be open to hearing minority and unpopular viewpoints, and recognize that just as our viewpoint has validity, so too do the views of others. Now the interpretive task is up to the justices.
2. Ibid., pp. 4-5
3. See "Abortion," in Richard Elliott Friedman and Shawna Dolansky, The Bible Now (New York: Oxford University Press, 2000), pp. 41-63
4. See "Post-Biblical Interpretations" by Susan Marks in Tamara Cohn Eskenazi and Andrea L. Weiss eds., The Torah: A Women's Commentary (New York: URJ Press and WRJ, 2008), p. 446
In a world of distracted people and shortened attention spans, there is a verse in Mishpatim that helps us regain our focus. This striking verse is from Exodus 24:12: "The Eternal One said to Moses, 'Come up to Me on the mountain and wait there . . . ' "
The meaning seems straightforward in the English translation found in The Torah: A Modern Commentary1; it seems easy for our modern minds to comprehend. But this verse provides a great example of how a close reading of the Hebrew verse can yield a different perspective.
The key Hebrew words are literally translated as: "Come up to me on the mountain and be there." This seems odd, as Lawrence S. Kushner and Kerry M. Olitzky teach in Sparks Beneath the Surface, "If Moses were to follow God's instruction and come up on the mountain, then he would already be there. Why then does the text add 'and be there?' "2
The Sages of the Torah taught that not a single word of the Torah is superfluous — every word serves a purpose. Rabbi Menachem Mendl of Kotzk (1787-1859) taught, "if Moses went up to the mountain, of course he would be there. However, this is proof that a person can exert tremendous effort to reach the top of a mountain . . . but his head may be elsewhere. The main thing is not the ascent but being there, and only there . . ."3
It turns out that chronic distraction may not be unique to our age. God seems concerned that even the great Moses might be distracted and not fully present for the Revelation. And if Moses needed the reminder, how much more so do we — in our multitasking culture — need to be focused and present. It's a discipline that's as challenging now as it ever was.
W. Gunther Plaut, gen. ed., The Torah: A Modern Commentary, rev. ed. (New York: URJ, 2005), p. 524
Lawrence S. Kushner and Kerry M. Olitzky, Sparks Beneath the Surface: A Spiritual Commentary on the Torah (Northvale, NJ: Jason Aronson Inc., 1993), p. 91
Aharon Yaakov Greenberg compiled Torah Gems, Itturei Torah (Tel Aviv: Y. Orenstein "Yavneh" Publishing House, Ltd., 1998), p. 165
Rabbi Daniel J. Feder is the senior rabbi of Peninsula Temple Sholom in Burlingame, CA.
Mishpatim, Exodus 21:1-24:18
The Torah: A Modern Commentary, pp. 566-592; Revised Edition, pp. 511–538
The Torah: A Women's Commentary, pp. 427–450
Haftarah, Jeremiah 34:8−22; 33:25–26
The Torah: A Modern Commentary,pp. 714−716; Revised Edition, pp. 539–541