Torat Haim: the Torah does not remove us from life

In Rabbi Marc Angel's magazine, Conversations, published by the Institute for Jewish Ideas and Ideals, vol. 5 (Autumn 2009/5770), in Naomi Schachter's "Festina Lente: Make Haste Slowly - The Changing Status of Orthodox Women in the Twenty-First-Century", we read:

For example, women who have trouble getting pregnant because their natural monthly cycle does not match the strictures of the family purity laws are advised to take hormones in order to adapt their cycles to the strictures of the purity ritual, rather than, for instance, allowing these women exceptionally to go to the mikvah a few days earlier so that the mikvah night aligns with their ovulation, in fulfillment of a different mitzvah.

Schacter brings this as a criticism, and of course, I am equally appalled. But my reason has little to do with feminism, and more to do with what I believe is a healthy conception of just precisely what the Torah in fact is.

To put women on hormones is no small matter. According to a recent study published in the medical journal Trends in Ecology and Evolution (see Georgina Cooper, "Birth control pill could put women off macho men?", Reuters, 8 October 2009, http://www.reuters.com/articlePrint?articleId=USTRE5973OT20091008), women on birth control are likely to find more attractive men who are relatively delicate and effeminate, whereas ordinarily, women are attracted to more rugged and masculine features. I'm sure that medical experts could adduce far more data on this, but the basic point is clear: hormones seriously affect the body's chemistry (that is their purpose!), and it should be no small matter in anyone's eyes to so do.

Obviously, if someone has a health condition, something unequivocally wrong with his or her body, then of course hormones should be administered if necessary; that such treatments exist is one of the blessings of modern medical science. But Schacter's case, we are apparently dealing with women who are not unhealthy, who do not have anything wrong with their bodies. A 50 Hz 240V outlet may be different than a 60 Hz 120V one, but the former is not broken; it is different. Therefore, it is not doctors who are recommending hormonal treatment, but halakhists.

To tell a woman, a woman whose body has nothing wrong with it, a woman whose body is perfectly healthly, that her body is defective because it fails to adhere to a supra-natural convention said by halakhah, is absolutely ludicrous. More, it is downright cruel. To tell a woman that the body G-d gave her, the body which is perfectly healthy, that it is defective because it fails to adhere to an artificial convention, is the height of absurdity. All the more when the rectification is something so serious as hormonal treatment. To put the woman in danger (no medical treatment is without risks), not because her body is in need of repair, but because her perfectly functioning body fails to obey an external norm, is no less than cruel and unusual punishment.

(In our case, this is particularly so, because the law in question is merely Rabbinic, i.e. the extra non-Biblical days of niddah. In fact, if we follow Professor Yaakov Elman of YU, the matter is one merely of minhag, and not even Rabbinic law. According to Elman ("Middle Persian Culture and Babylonian Sages: Accomodation and Resistance in the Shaping of Rabbinic Legal Tradition" in The Cambridge Companion to the Talmud and Rabbinic Literature (Cambridge Companions to Religion), ed. Charlotte E. Fonrobert and Martin S. Jaffee, Cambridge University Press, 2007), the extra Rabbinic days of niddah are not Rabbinic at all, but are rather a freely-willed extension by Babylonian women of the Talmudic era, as part of the "narcissism of small differences" between Judaism and Zoroastrianism. That is to say, the Zoroastrians were stricter than Jews on matters of menstrual impurity, and so, out of a "holier than thou" attitude, the Jewish women freely chose to extend their niddah period, and so strong was this psychological "narcissism of small differences" than the Jewish men agreed. Be all this as it may; the fact remains that no matter how one approaches the issue, we are dealing with a relatively minor type of halakhah, and it should not be difficult to find grounds for leniency.)

This - viz. the tempering and moderating of the strictures of the halakhah when it confronts "real life" - is precisely what the Torah was given for. To be sure, Judaism was never "up to date" (Rabbi S. R. Hirsch, "Judaism Up to Date" in Judaism Eternal, "The Jew and His Time" in Collected Writings), and sometimes, we must freely submit our moral free will to the Divine heteronomous law. But the Torah is not unreasonable; "ought to" implies "can", and this is a crucial lesson we mustn't lose sight of.

In fact, this argument has no less than explicit Talmudic basis. Rabbi Dr. Eliezer Berkovits, in chapter one of his Not in Heaven: The Nature and Function of Halacha (reprinted in Essential Essays on Judaism (ed. Hazony) as "The Nature and Function of Jewish Law"), deals with the Talmudic principle "Heicha de’efshar efshar; heicha delo efshar lo efshar", "Where it is possible, it is possible; where it is not possible, it is not possible" (Hullin 11b). He notes,

A careful examination of the examples discussed will show that in the application of the principle of the possible, the impossible is not the objectively impossible, but that which is not reasonably feasible. The category of the possible (efshar) represents that which, in view of human nature and with proper attention to human needs, is practically or morally feasible.

Rabbi Berkovits brings one Talmudic example of this principle being applied: on the one hand, we have an elderly childless man living across the sea from his wife; he sends her a get in order that she not have the mitzvah of yibum/halitza with his brother should he die. On the other hand, we have a kohen who gives his wife a get whose activation is conditional on his death (i.e., she will become divorced an infinitesimal amount of time just prior to his death). In the first case, we rely on the presumption (hazaka) that the husband is alive until proven otherwise, and so the get is effective when it reaches the wife's hand via a messenger (shaliah). (A get is ineffective if the husband is no longer alive, and so the mitzvah of yibum/halitzah would apply, as the wife was never divorced.) In the second case, by contrast, we presume that the husband might have died at any moment, and so we immediately prohibit the wife to eat terumah (which only kohanim and their families may consume). The Talmud is perplexed; why do we presume one husband is alive until proven otherwise, while we assume the other husband may die at any moment? Rabbi Berkovits concludes,

In attempting to resolve the contradiction, the Talmud offers: "You are comparing terumah to divorce? Teruma is possible; divorce is impossible" (Gittin 28a). The meaning is: For the woman married to a priest, it is relatively easy to make arrangements to live on food that does not have the sanctity of teruma. But the consequences of assuming the death of the husband in the first case would be much more serious. The faraway husband, knowing that a writ of divorce sent by a messenger would have no validity, would refrain from sending one. As a result, his wife would become an aguna, neither married in fact nor able to remarry, since her husband might be alive.

Rabbi David Sperling, my rabbi at Machon Meir (who teaches also at Nishmat), once posed a question to me and a few of his other students: if someone became locked in the bathroom on Shabbat, with no way of freeing him save some sort of Shabbat violation, should one let him remain inside? Rabbi Sperling answered his own question, saying that indeed, one could probably find a way to slip food and drink into the bathroom via a window, and that in any case, one wouldn't die if he had to go all day without sustenance. Rabbi Sperling paused for a moment, and proclaimed that no!, one does not have to act in this way! G-d does not expect someone to remain locked in his bathroom for the duration of Shabbat for the sake of Shabbat! He conceded that at the moment, he didn't know how to free the person, and that he'd have to consult halakhic texts to find an acceptable way to repair the door without violating Shabbat. But he said that all the same, some way did exist, and that G-d did not expect a person to act this way. He also conceded that this is a slippery and dangerous slope; as he put it, all the forgoing was no more clear to him than it is to his non-observant relatives that G-d does not expect one to go Shabbat without driving a car or using a computer.

So indeed, this whole analysis must be done in fear and trembling and religious awe, and serious halakhic analysis must underlie considerations of mercy and love. (Rabbi Haim David Halevi made the same point about his mentor, Rabbi Benzion Uziel, in his Asei Lekha Rav 8:97, translated by Rabbi Marc Angel in "The Love of Israel as a Factor in Halakhic Decision-making in the works of Rabbi Benzion Uziel", Tradition 24:3, Spring 1989, pp. 1-20. Cf. Rabbi Angel's book, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel.) But all the same, we must remember: the Torah is reasonable, and the Torah was made to enrich life, and not to remove us from it. To counsel women to take hormones - and thereby endanger their health and wellbeing - for the sake of an external legal convention is sheer absurdity.