This week in synagogue we read Parsha Mishpatim, Exodus 21:1 – 24:18.
God dit not just provide the Ten Commandments, but also a large number of more detailed laws. A number of these laws are covered in this weeks portion of the Torah. One part deals with laws covering penalties for crimes and laws relating to what should happen in return for damages. In particular, there is a section in Exodus 21: 18-19 and 22-25 which contains one of the two references, the other being in Leviticus, to the very famous eye for an eye phrases:
“And should men quarrel and hit a pregnant woman, and she miscarries but there is not a fatality. he shall surely be punished, when the woman’s husband makes demands of him, and he shall give according to the judges. But if there is a fatality, you shall give a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise.”
The clauses relating to eye for an eye and so on are among the most understood in the Torah for at least two reasons.
First, based on the context and a variety of other verses, these refer to monetary restitution, not literally taking a body part for another body part. But even if one were to prefer the literally meaning, in fact these clauses are meant to limit what was done. In ancient times, people were put to death for many crimes including many which would seem to be relatively minor. The point of this wording was to indicate that monetary compensation (or punishment in general) should be comparable to what the crime or action was.
One aspect of the above mentioned versus which I had not noticed before was brought up by our Rabbi, Rabbi Fishman, who talked about the first part which discusses the example of a pregnant woman being hit during a quarrel between two other people – this was being used to illustrate what happened when third parties, non-participants in the immediate quarrel, were impacted.
One interesting aspect of the example used treats a miscarriage much differently than one would treat a murder, explicitly pointing out that the result would be compensation not capital punishment. This phrasing serves as one of the basis for the general rules regarding abortion within Jewish law. From conception until around thirty days, the fetus is treated as if it were water. From around thirty days until the fetuses head crowns, the fetus is treated as if it were a part of a woman’s body. In the same way that one would not needlessly sever a woman’s arm or leg, one is not to commit an abortion unless there is a medical reason regarding a woman’s health.
One of the differences between the more observant/orthodox and more liberal/reform Jews regarding abortion is the different approaches to defining what protecting a woman’s health means. Whether this includes mental health and how flexible to define mental health varies greatly.