The Torah describes the revelation at Mount Sinai dramatically: There was thunder and lightning and the intimate encounter with the Divine. It culminates in a grand pronouncement: Aseret HaDibrot, the Ten Commandments.
But that’s not the end of the story. Immediately following this account is the parashah called Mishpatim, “Laws.” As we learn, God had more than ten laws to teach the people at Sinai. Mishpatim gets into the nitty-gritty about how people will live together and handle common disputes: what to do if your animal injures someone else or their property, what to do if you find a lost object, how to lend money without exploitation.
The rabbis teach that the Torah has two categories of laws: mishpatim, laws we understand as reasonable; and hukkim, laws without rational explanation. The classic example of a hok, a law without rational explanation, is the prohibition on wearing fabric that combines wool and linen. But the Talmud teaches that mishpatim are the laws people would have written even if they weren’t in the Torah (Yoma 67b). They are laws people need in order to live together.
The majority of these laws apply equally, regardless of our gender. For instance: “Do not curse one’s father or mother” applies to everyone (Exodus 21:17), and so does “do not oppress or wrong a stranger, because you were strangers in Egypt” (Exodus 22:20) and “return lost property” (Exodus 23:4).
But some of them apply differently to men and women.[i] Perhaps unsurprisingly, the differences come up when the laws address sexuality and reproduction. If these laws are the reasonable ones, how do we approach them when they are inconsistent with our sense of justice? And how can these questions help us understand the world we live in today, in a time of rapid lawmaking about reproduction and gender, and what kind of world we hope to build for the future?
In the laws about emancipation of enslaved people, the Torah says,
If his master gives a male slave a woman, and she bears him children, the woman and her children will still belong to the master after [the enslaved man’s] emancipation. (Exodus 21:3-4).
This passage is saying a few things. First, the slaveholder can “give” a woman to one of his male slaves. This assumes that the woman, and her sexuality, is “an object to be possessed.”1 Second, it says that the woman and her children remain the property of the master; when the enslaved man is emancipated, he cannot bring his wife and children with him. Rather than a woman or a couple having a realm of autonomy over their sexuality, reproduction and family life, those spheres are defined by their master.
The next verse says that the husband can decline to go free when his period of enslavement ends. If he declares, “I love my master and my wife and my children” (Exodus 21:5), he can stay with his family, but he remains enslaved. I’m not even going to get into the details of the next law, but it begins, “When a man sells his daughter as a slave … .” It goes on to discuss the implications for the girl’s marriageability, assuming that an enslaved girl was used sexually. (Exodus 21:7-11).
We wish we could read these laws and say they were only relevant in biblical times. One challenge of reading these laws in particular is that they hold up a mirror to our own country’s history. Although North American chattel slavery and slavery described in the Torah are not an exact fit, let’s take a breath and look into that mirror, and think about what that reflection might teach us.
Law and narrative in Torah are not only inseparable, they are essential to one another for creating meaning.
In 1662, the colony of Virginia passed Act 12, a law of matrilineal descent to protect slaveholders’ economic interests. Although legal status descended patrilineally, the new law stated: “Children got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother.” “According to the condition of the mother” means children of enslaved mothers were considered slaves, and children of free mothers were free. It is pretty close to Exodus 21:4. Act 12 remained the law in Virginia, and similarly in other slave states, through the Civil War.2
After Congress outlawed the transatlantic slave trade in 1808, slaveholders, in order to increase wealth and maintain power, depended even more on the production of more enslaved people, i.e. the birth of babies. As legal historian Margaret Burnham writes, an enslaved woman was “both a procreative and a sexual object.”3 She was a procreative object, because the birth of a child increased her master’s wealth. She was a sexual object, because the master could exercise control over her body, and raping her was not a crime.
So what do we do when we read these laws in the Torah: the law about the children of an enslaved woman and the law about choosing to remain in slavery to remain with one’s family?
We know in our hearts that the Torah interweaves law and narrative, commandments and stories. As legal scholar Robert Cover taught, law and narrative in Torah are not only inseparable, they are essential to one another for creating meaning.4 So when we read a difficult law, we know it is not the only way the Torah makes meaning. We need the stories, too. For example, the verse, “Do not oppress or wrong a stranger, for you were strangers in Egypt” (Exodus 22:20), combines a law: “do not oppress a stranger” with a story: “you were strangers in Egypt.” It’s not possible to separate the two. This combination of law and stories creates the Jewish world we know, the world in which we live.
Yet at the same time that the Torah commands not to treat the ger, the stranger, as an Other, the Torah nevertheless treats women as the Other in ways that restrict reproductive and sexual autonomy. I’m going to propose two approaches to texts like this. The first is memory; the second is resistance. Both depend on stories.
Memory
Memory. Every year at the Passover Seder, we tell the story of Pharaoh’s oppression of the Israelites. Salt water represents tears of the Israelites’ suffering, and drops of wine represent blood spilled during the plagues. Rather than avoid difficult memories, Jewish tradition centers these stories. We inhabit them in our liturgy, in our ritual and in the stories we tell about ourselves.
There are now efforts in our country to engage with historical memory. I’m thinking of the Legacy Museum and the National Memorial for Peace and Justice in Montgomery, Ala. The memorial includes the names of more than 4,400 Black people killed in racial terror lynchings. On the wall, it is written: “For the hanged and beaten. For the shot, drowned, and burned. For the tortured, tormented and terrorized. For those abandoned by the rule of law. We will remember.”5
Can we, together, imagine a world in which stories of subordination of sexual and reproductive autonomy, stories of abortion, pregnancy loss, protest and litigation become part of the Jewish practice of inhabiting historical memory? If we were to tell those stories similarly to the way we recount the story of the Exodus, could we engage with difficult texts and the truth of the past, and move toward healing and reconciliation? I invite us, as a Jewish community, to tell these stories: the unjust decrees, the efforts to commodify and control pregnancy, the difficult decisions and the movement for collective liberation. By telling these stories, may we move from silence to healing and from narrowness to expanse.
Resistance
The second approach is resistance and reframing.
As Jewish feminist scholar Rachel Adler writes, “Ultimately, law is maintained or remade by commitments of communities either to obey the law as it stands or to resist and reject it in order to live out some alternative legal vision.”6
Here, the “alternative vision” is already in the text: the ethic of compassion for human life and human dignity.7 The laws about personal injury set up a system to resolve disputes through paying damages rather than through violence or vengeance. (Exodus 21:28-36). If you’ve borrowed your neighbor’s cloak, return it before nightfall, because it might be the only thing they have to keep warm at night. (Exodus 22:25-26). There is even an obligation to help your enemy unburden their donkey if you see the donkey straining under a heavy load. (Exodus 23:5).
Resistance, of course, is essential to how enslaved people in our country protected their lives and their dignity. Facing subordination and violence, enslaved Black women responded by asserting autonomy over their bodies and their reproduction in the ways they had available. One form of resistance was to fight family separation. Like in the Torah, some parents made the difficult choice to remain enslaved rather than to escape, in order to prevent family separation.8 Black women also used herbal remedies and homeopathic techniques as birth control and to abort unwanted pregnancies, including those conceived through rape.9
Another form of resistance was to speak out. In 1866, six Black women testified before Congress about the Memphis race riots, when a white mob targeted the Black community with arson, killings and rape. Lucy Tibbs was 24 years old, recently freed from slavery by the war. She was the mother of two children and pregnant with her third child during the riots:
“Did they come into your house?” a congressman from Illinois asked her.
“Yes, a crowd of men came in that night. They just broke the door open and asked where was my husband. I replied he was gone. They said I was a liar. I said, ‘Please do not do anything to me, I am just here with two little children.’”
“Did they do anything to you?”
“They done a very bad act.”10
Ms. Tibbs and the other five women were the first Americans to testify publicly about sexual assault. Their testimony led to the eventual passage of the 14th Amendment.11
In a time when there are so many new laws that threaten reproductive autonomy and dignity for people of all genders, I’m thinking about Lucy Tibbs and her courage to reframe the narrative to protect her own dignity and change the law. I’m also thinking of Jewish women going as far back as our stories go.
There is a midrash from the beginning of the book of Exodus, when Pharaoh decrees that baby boys born to the Israelites shall be killed. Aaron and Miriam’s father, Amram, was in such deep despair that Pharaoh would kill a new baby that he divorced his wife, Yocheved, so they wouldn’t have another baby. Many others followed suit. Miriam, still a child, resisted. She told her father that Pharaoh’s decree could hurt only some of the babies, but his decision meant no new babies would be born at all. She said, “It is doubtful whether the decree of the wicked Pharaoh will be fulfilled, but you are righteous, and your decree will be fulfilled.” Amram realized that Miriam was right. He returned and remarried Yocheved.12 Miriam’s insistence on hope succeeded in reframing the story. Not long afterward, Moses was born.
As Americans and as a Jewish community, we come from a long line of women who have resisted and reframed, building dignity from injustice.
Conclusion
We are living in difficult times for reproductive justice. As we come together to imagine the world we want to build for the future, these lessons from our tradition and from our history inspire me.
As Americans and as a Jewish community, we come from long lines of people who inhabit historical memory, telling and retelling difficult stories to define who we are and what we have overcome. We are children, tasting saltwater tears at the Seder; we are civil-rights historians, building memorials to lynching victims.
We also come from a long line of women who have resisted and reframed, building dignity from injustice. We are midwives, caring for women whose pregnancies were conceived through rape, and midwives who opposed Pharaoh’s decree to drown babies; we are Lucy Tibbs, testifying in Congress; we are Miriam, insisting that her father maintain hope for the future.
[i] I acknowledge that I’m using the binary gender categories the Torah uses here.
1Judith Plaskow, Standing Again at Sinai: Judaism from a Feminist Perspective (Harper Collins, 1990), pp. 197-98.
2 See, e.g., Fulton v. Shaw, 25 Va. 597 (Va. 1827), holding that children born to Fanny Shaw after her emancipation are free children, because children are born “bond or free, according to the condition of their mothers.”
3 Margaret A. Burnham, An Impossible Marriage: Slave Law and Family Law, 5 Law & Ineq., pp. 187, 199 (1987).
4 Robert M. Cover, The Supreme Court, 1982 Term – Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983) (“Once understood in the context of the narratives that give it meaning, law becomes not only a system of rules to be observed, but a world in which we live.”).
5 See the description and photographs here: https://legacysites.eji.org/about/
6 Rachel Adler, Engendering Judaism: An Inclusive Theology and Ethics (Beacon, 1998), p. 35.
7 According to biblical scholars, this set of laws is the Torah’s first articulation of a legal system placing unique value on human life. See, e.g., R. Moshe Greenberg, On the Biblical Grounding in Human Value, The Samuel Friedland Lectures (New York, 1966); Nahum Sarna, Exploring Exodus: The Heritage of Biblical Israel (Schocken, 1986), Chapter VII.
8 Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Vintage, 1997), 51: “Black women, along with Black men, succeeded remarkably often in maintaining the integrity of their family life despite slavery’s traumas.”
9 Roberts, supra, at 47. Historians studying the first American laws criminalizing birth control and abortion, which were passed after the Civil War, found that the laws were intended to target the birth control and abortion practices of Black and Indigenous women. Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 Harv. L. Rev. 2025, 2035 (2021).
10 Report of the Committees of the House of Representatives, 39th Congress, 1865-66, Vol. 223-24, at pp. 160-62.
11James Gilbert Ryan, The Memphis Riots of 1866: Terror in a Black Community during Reconstruction, 62 J. Negro Hist., pp. 243, 243 (1977).
12 This midrash appears in multiple texts. See, e.g., Babylonian Talmud, Sotah 12a.
