This week, a draft Supreme Court opinion leaked to Politico contained the Court’s plan to strike down Roe v. Wade, a landmark 1973 decision affirming the right to have an abortion. The Supreme Court decision is not yet final or official, but once it becomes official, access to abortion will quickly unravel within the United States.
How can we fathom such an immense harm, which will impact so many women and gender-marginalized people? How can we reckon with the disproportionate impact this will have of working-class people and people of color? How can we possibly pursue justice for those affected or undo the hurt so many are experiencing?
This week’s parsha, as read in Israel and Reform diaspora communities, Emor,* gives us one framework: the famed “eye for an eye” notion of reciprocal justice. While “eye for an eye” is often read as a call for revenge, it can also refer to appropriate amends that must be made for a specific type of harm. Interestingly, Emor is not the first time we see the idea of “eye for an eye” in the Torah, but rather a repetition from Parashat Mishpatim. And in the Torah, every word has meaning, so there must be a reason behind the repetition.
One explanation is that Parshat Emor is part of the famed Levitical Holiness Code. This section of Leviticus is named for its repeated use of the word “holy,” emphasizing again and again that all people of Israel are holy. Its laws are often seen as setting apart the people of Israel from the surrounding nations, specifically through the pursuit and status of holiness. By repeating the framework for reciprocal justice, “eye for an eye,” as part of Emor, the Torah is telling us that justice – especially this framework of justice – is holy and must be pursued as an act of holiness.
Reciprocal justice is not always so simple: there are many consequences to any act of violence, and not every form of violence can (or should!) be reciprocated. Take this week’s leaked Supreme Court decision: what does reciprocal justice look like for people whose bodily autonomy has been wrenched from them?
The Talmudic tractate Bava Kamma expands on the concept of “eye for an eye,” with a helpful framework that lays out five forms of damages: the damage itself (nezikin), pain (tza’ar), lost wages (shavat), cost of cure (ripui), and shame (boshet) (Bava Kama 83b). The Talmud understands that no act of violence is simple; any harm perpetrated against another will affect the target in all of these ways. The “eye for an eye” is not necessarily literal, but includes recompense for each way a person is hurt. In thinking about the violence that is the court’s efforts to roll back Roe v. Wade, the Talmud’s five categories of damages can be helpful in conceptualizing the enormity of its impact – and understanding how to address its toll.
Nezikin. The damage of an overturned Roe is clear: thirteen states have trigger laws that would ban all or most abortion immediately. People, mostly working-class women and gender marginalized folks, would be forced to carry unwanted and dangerous pregnancies to completion. This is the simple nezek, the simple damage, of a post-Roe America.
Tza’ar. There is no denying that even a healthy, desirable pregnancy is painful, throughout the nine months of carrying, as well as labor and delivery. Without the option of abortion, people will be forced to undergo immense amounts of physical pain. This pain will be compounded by the psychological distress of being forced to carry an unwanted pregnancy.
Shavat. Birth is a physically traumatic experience, but in a country that does not guarantee its workers paid parental leave, not every job offers employees post-partum leave for recovery. In a post-Roe world, employees of unfriendly workplaces could be docked pay, miss shifts, or even have to leave their jobs just to give their bodies time to recover from unwanted childbirth.
Ripui. In the United States, it costs approximately $10,800 to have a baby. The number rises if there are any complications during labor and does not include prenatal care, only labor and delivery. In a country where health insurance is not guaranteed (and even coverage isn’t always guaranteed for those who do have it), this would be a huge financial burden for someone with an unwanted pregnancy.
Boshet. Pregnancy, birth, and abortion are not shameful. But American Christian culture deems abortion a taboo subject, instilling a sense of shame about it, despite the fact that as many as one in four women have had one. Beyond the cultural stigma around abortion, t is dehumanizing to have one’s bodily autonomy taken away. The overturning of Roe v. Wade causes shame for all who have been deprived the right to choose. Countless children will be brought into the world unwanted and unloved, a shame no child deserves to feel.
The Talmudic framework of damages offers us one way to conceptualize the enormity of the harm that will be caused by overturning Roe v. Wade. This harm is physical, material, and psychological, and will ruin lives in more ways than one.
Just as there are five different kinds of harm, so too must recompense be made in each of these categories in order for justice to be achieved. Justice requires that we go farther than we have even now: while Roe v. Wade may be the law of the land, accessing abortions has always been fraught for poor people. True justice means justice for all those who struggle to access care even when and where abortion is legal.
It is clear that those who would take away our abortion rights refuse to see the need to atone for their actions. Until we can hold them to account and make true justice happen, it is up to us to support one another.
The Talmud’s five categories of damages can guide us in our reproductive justice work.
We must attempt to halt the damage and the pain of forced pregnancy by continuing to advocate in every way we can for abortion access. We must ensure postpartum parents do not miss out on wages by urging our politicians to adopt policies mandating paid leave for every employee, working for economic justice for parents. We must alleviate the financial burdens of pregnancy and abortion and work toward a better healthcare system that provides insurance for all, and we must donate to abortion funds to help women travel to places where abortion is legal and access care. Finally, we must maintain our dignity in the face of those who would shame us. We must refuse to cave. We must not be afraid to shout our values and declare ourselves loudly, proudly pro-abortion.
Where our government fails, we must care for one another, and doing so in a post-Roe world will require our attention to each of the ways that lack of abortion access causes harm.
After all, it is holy work.
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At the time of publication, Roe v. Wade is still the law of the land, and abortion remains legal in all 50 states. If you or anyone you know is in need of abortion-related resources, visit the National Network of Abortion Funds for information and/or financial assistance. If you or anyone you know is in need of urgent mental health help, call the National Suicide Prevention Lifeline at 1-800-273-8255 or reach out to Crisis Text Line by texting HOME to 741-741.
