Who Decides?

Who Decides?
Rabbinic Intern Rebecca Thau

Josseli and her husband met at a soccer game
In their hometown of Houston in 2019.
They soon married and had a beautiful baby girl.
Josseli loved to wear matching outfits with her daughter
And share family photos.

When Josseli became pregnant a second time in 2021,
She was elated.
Having always dreamed of a big family,
She couldn’t wait to raise a baby boy
And give her daughter a little brother. /

But 17 weeks into her second pregnancy,
Josseli began to miscarry.

This is when laws
Restricting access to reproductive health care
Sadly became a defining feature of
Josseli’s story.

From this week’s Torah portion,
Mishpatim,
We derive that access to reproductive health care
Is a Jewish value.
This is why
Central Synagogue
Joins hundreds of Jewish communities nationwide
In marking “Repro Shabbat”
This week.

Our country’s contentious debates
About reproductive health care
Often emphasize a belief in life’s inherent sanctity.
Judaism also holds this view:
Pikuach nefesh,
Saving a human life,
Outweighs any other commandment
In Judaism.

The question,
Though,
Is what counts as human life.

Some argue that life starts at conception,
And that terminating a pregnancy
Is the equivalent of murdering a person.
People of good faith and conscience believe this.
You might know some of them;
You might hold this view yourself.
But this week’s parasha,
Mishpatim,
Teaches something different.

Amidst the laws enumerated in this Torah portion,
Two address the question of fetal personhood:
Torah instructs that
The punishment for killing another person is death,
But the punishment for causing a miscarriage is a fine.

Later rabbis elaborate on that disparity
Between the capital and financial punishments
To teach that a fetus
Is not equivalent to a human life.
If it were,
The Torah would require the same punishment
For killing a person
And causing a miscarriage.
But it doesn’t.
This fact has produced millenia of Jewish laws
That support access to a wide variety of reproductive health care,
Including abortion.

And still,
Torah also acknowledges here
That the loss of a pregnancy
Is a real loss.
Many of us know this pain well.
Pregnancy can be sacred–
And the ending of a pregnancy,
Irrespective of whether that ending is intentional,
Can bring
Physical, psychological, and spiritual pain.
Torah honors that
Potential life has real, holy value–
But not the same value as full human life,
Including the life of the pregnant person.

I think again about Josseli,
Who was devastated
To lose the baby she longed to hold.
There are parts of her story
That may be difficult to hear.

Once her miscarriage began,
It was clear
That the fetus growing inside of her
Could never become a viable life.

In such a scenario,
Medical professionals agree
That the safest treatment for the pregnant person
Is to facilitate the miscarriage that already began.
In some states,
Josseli would have received that
Prompt medical intervention.
But in Texas,
Such treatment is now considered an illegal abortion.

Under the threat of prosecution, fines, and even jail time–
Josseli’s doctors could not intervene
Until the fetal heartbeat stopped on its own.

So,
For 40 hours,
Josseli suffered excruciating pain
While doctors repeatedly checked for a fetal heartbeat.

Josseli was discharged
Eight hours after completing her miscarriage,
Despite ongoing, heavy bleeding and cramping.
When she called the hospital later
To report her continued pain,
Her suffering was dismissed as “normal.”

But three days later,
Josseli died.
She was only 28 years old.
Josseli’s story didn’t need to end this way.
Heartbreaking, complicated, real-world cases
Like this one

Show us
How much we need a religious roadmap.
We need a Jewish playbook that emphasizes
The centrality of the pregnant person’s life,
While also acknowledging the multifaceted
Dynamics that shape any conversation
About pregnancy and reproductive health care.

Luckily for us,
Our rabbis do offer us a framework
For approaching these questions,
Particularly through the lens
Of who should decide
On an individual’s medical treatment.

Perhaps surprisingly,
This roadmap
Appears in a section of the Talmud about Yom Kippur.
While discussing the mitzvah of fasting for the Day of Atonement,
The rabbis consider a person who is sick.
They wonder,
Who determines if a sick patient should fast?

Our sages first assert that
The patient decides if fasting is right for them.
One rabbi imagines a case
Where 100 outside experts
All say that a patient can fast,
But the patient says that he feels too sick.
Even in this scenario,
We listen to the patient
And let him eat on Yom Kippur.
The patient–
Not an outside authority,
Or even 100 outside authorities–
Is the best judge of their own health.

But the rabbis don’t stop there.
Medical questions are complicated and the stakes are high:
As we’ve seen,
Preserving human life is crucial
In Jewish tradition.
Our sages know that there might be times
When we make bad–

Even destructive–
Choices for our bodies,
Or when we might not be the best judge
Of our treatment.

So,
Even while they say that
the patient is the expert on their body and experience–
Our rabbis also insist that
We follow doctors’ medical wisdom
If the patient’s life is at stake.
According to our sages,
Medical decisions
Should be made by a patient and a doctor.
One hundred outside experts–
Or 535 members of Congress–
Should not decide what’s best for a patient’s health,
Our rabbis teach.

Imagine if we applied this thinking
To each pregnant person’s
Pain and preferences.

This sadly wasn’t true for Josseli.

Neither she
Nor her doctors
Really determined her treatment;
Anti-abortion policies did.

But imagine what might have been possible for her
If the values of Parashat Mishpatim
And the Talmud
Had informed her care.

When she called the hospital to describe her continued pain,
She might have been taken seriously
As an expert on her own body.
And even earlier,
Doctors might have been free
To provide necessary, prompt, life-saving medical intervention
When her miscarriage first began.

If she and her doctors had had the final say,
Like the rabbis in the Talmud teach,
She might very well be alive today.
I am just about Josseli’s age.
I have never given birth–
But I pray that I will one day have that privilege.

And if I would be lucky enough
To have a baby girl like Josseli did,
I pray that she will know a world where she–
where we all–
Will have full access to life-saving medical care.
A world where she will get to choose
How and when to build her family,
In consultation with medical professionals
Who can freely support her.
A world where her experiences, hopes, and pain will be taken seriously.
A world where she will always be seen
As the ultimate expert on her own life and her own body.

May we live to see that world;
May we work to build that world together.