Tractate Yevamot and the overturning of Roe v. Wade

The decision of the Supreme Court to overturn Roe v. Wade does not sound all that Talmudic, when looked at in the context of Tractate Yevamot

 THE ‘JEWISH RALLY for Abortion Justice’ rally near the US Capitol in May. The rally, hosted by the National Council of Jewish Women, took place two weeks after the leaked draft of the Supreme Court’s potential decision to overturn Roe v. Wade.  (photo credit: ANNA MONEYMAKER/REUTERS)
THE ‘JEWISH RALLY for Abortion Justice’ rally near the US Capitol in May. The rally, hosted by the National Council of Jewish Women, took place two weeks after the leaked draft of the Supreme Court’s potential decision to overturn Roe v. Wade.
(photo credit: ANNA MONEYMAKER/REUTERS)

According to this publication, as of two years ago, 40,000 Jews were engaged with a particular app for Daf Yomi, that is, the folio of the Babylonian Talmud studied around the world.

It is no exaggeration to say that tens, if not hundreds of thousands, of people worldwide are studying it; and those lucky enough to have persevered – I am, alas, a few pages behind – have just completed Tractate Yevamot, which deals in large part with the laws of the levirate marriage, pertaining to the death of an individual who is married without children, and the subsequent union of the widow to the deceased’s brother, as described in Deuteronomy, chapter 25.

Yevamot is arguably one of the most challenging tractates in the Talmud. In one sense, however, the feature that makes it so difficult is also what makes it easier. I refer to the fact that classical texts are read on two levels, namely, the discussion in its original setting but also in the context of our current time period.

It is, of course, difficult to get one’s mind around the tragedy that leads up to levirate marriage. It is also difficult to understand the family dynamics that such a marriage would cause or even what having co-wives (tzarot) might be like. But this tractate might be unique in the sense that so much of the intervening history has conditioned us against what is described.

I think of Rabbi Gershom ben Judah’s law against polygamy around the turn of 11th century but even of the fact that the Talmud itself casts doubt over whether we should still engage in this practice. And probably because of improving conditions and life expectancy, even halitza, the ceremony that takes place instead of the levirate marriage and involves the ceremonial removal of a shoe, is not at all common; it says something that you can visit such a shoe in a museum.

Orthodox Jews sing and dance during the 13th Siyum HaShas, a celebration marking the completion of the Daf Yomi, a seven-and-a-half-year cycle of studying texts from the Talmud, the canon of Jewish religious law, at the MetLife Stadium in East Rutherford, New Jersey, U.S., January 1, 2020 (credit: REUTERS/JEENAH MOON)Orthodox Jews sing and dance during the 13th Siyum HaShas, a celebration marking the completion of the Daf Yomi, a seven-and-a-half-year cycle of studying texts from the Talmud, the canon of Jewish religious law, at the MetLife Stadium in East Rutherford, New Jersey, U.S., January 1, 2020 (credit: REUTERS/JEENAH MOON)

All of this means that the material is inaccessible, but it is also not applied in most cases. In other words, one studies it from an ivory tower of sorts.

This brings me to the messages that emerge from Yevamot. The first is the consequences of decisions.

In what can be compared to logic games, there are dozens of cases of siblings marrying other half-siblings’ relatives; and when studying those, you are never more aware of the relationship to different family members and the halachic complications attached to each of them. And at the same time, you recognize that life decisions that are normally available are either ruled out biblically, forbidden by rabbinic fiat or, in other cases not necessarily pertaining to relatives, discouraged.

Indeed, even with respect to conversion, which forms a small but significant part of the tractate, there is a sense that such decisions can bring about negative outcomes. Thus, the idea of changing from one lifestyle to another is not simply embraced, caution thrown to the wind. In a theme that can also be detected from a discussion of whether to enforce halachic norms on children, the Talmud cautiously says that it is not necessary to actively do so; the preference is for realism over formalism.

The second and far more humbling message is that, as a society, we are not what we were. The impression one gets is that the reason the laws of the levitate marriage are by and large not applicable is not because we live in a more modern culture that somehow makes us superior; it is actually because we are far more self-centered. To put it in Enlightenment-era terms, society is not by necessity making continuous progress, meaning that not every generation is superior to the one prior.

A third and related point is that the ideal circumstance is very different from reality. Yes, a great deed can be fulfilled if the deceased’s name can live on through the product of the levitate marriage, but it is incredibly challenging for this marriage to occur for the right reasons; and, yes, a conversion can be a fulfilling choice, but is it realistically achievable?

ALL OF this makes me consider what is happening in the United States. I am thinking of the Supreme Court’s decision to overturn Roe v. Wade. In many ways, one gets the opposite impression from that decision. According to the opinion of Justice Samuel Alito, the 1973 and 1992 rulings should be overturned because the Constitution makes no reference to abortion, whereas the sense of realism we have touched upon would acknowledge the shortcomings of that approach. Indeed, judge Harry Blackmun himself, in the majority opinion of 1973, acknowledged that privacy itself is not mentioned in the Constitution but is still recognized by the court, possibly as far back as 1891.

A more pronounced contrast with Tractate Yevamot is seen from the court’s disregard for unintended consequences, which have factored into every one of those logic games. And, of course, the implicit but unsubstantiated assumption of this ruling is that this Supreme Court has a clearer understanding of the legal matter than previous ones. In addition to being contrary to what Yevamot tells us about society, this also flies in the face of what the Mishna in Eduyot 1:5 tells us, namely, that a court can overturn the decision of a previous court only if it is greater and wiser than the previous court. I suppose what I am trying to say is that the decision does not sound all that Talmudic.

The writer, a PhD, teaches Jewish history and Tanach at TanenbaumCHAT and is the author of Understanding the Evolving Meaning of Reason in David Novak’s Natural Law Theory (Brill, 2022).