In the orthodox Jewish community there has been much recent controversy surrounding the ordination of women and their authority to issue halachic decisions.1 Notwithstanding these reservations, women Torah scholars (with and without formal ordination) have begun to issue halachic responsa. The purpose of this article is to analyze these rulings, particularly the ones related to questions in medical ethics, to ascertain whether there is a distinctive feminine voice in their approach to these complex halachic and moral dilemmas. However, before we approach these responsa, we need to better understand the progress in women’s Torah learning that produced these women halachic authorities.
Clearly, since Sarah Schenirer started the Beis Yaakov movement in 1917 with the consent of the rabbinic sages of her time, there has been a revolution in Torah learning for orthodox women. In addition to the learning of Torah in secondary schools in both the ultra-orthodox and modern orthodox world, many women now attend post-high school seminaries where they engage full time in Torah study. Professor Tamar Ross maintains that there are two models of these higher Torah learning institutions for women. One, which she calls the track of “feminine distinctiveness,” believes that, “Women's learning should not mimic that of the men. Instead emphasis should be placed upon women's unique sensitivities and practical wisdom even in their learning.”2 This approach has an impact on the curriculum as at these institutions Talmud does not occupy a central place, replaced instead by courses in religious faith, Jewish philosophy, Bible, and practical Jewish law centered on the home and family. The mode of learning is also distinct from the men’s yeshivot as there is more emphasis placed on classroom learning with frontal teaching by mostly male rabbis as opposed to the study partner model in men’s yeshivot.
Another model, which Ross calls the “egalitarian track,”
accepts the educational ideal of the men as suitable for all, without regard to gender, and seeking equal opportunities for women in achieving an identical portion of the male share. The basic assumption of this track is that women should adopt for themselves exactly the same norms that are assumed by men, and develop equal learning skills in accordance with men's criteria and standards. Thus the success of the female student is measured by the degree to which she can hold her own in the male discourse.3
The educational implications of this track are that Talmud study is at the core of the curriculum and many hours are devoted to chevruta [study partner] style learning. Ross maintains, “that the emphasis on musar and the development of fine character traits (middot) – such as charity, grace, and modesty that have been traditionally been attributed to women – is low keyed,”4 similar to what is done in the men's yeshivot.
In assessing the impact of this educational revolution, Estie Rosenberg, the spiritual leader of one of the largest and most important institutions of women's learning in Israel (Migdal Oz) and the daughter of Rabbi Aharon Lichtenstein, writes:
In this area, I am sad to say that the world of women's Torah learning has not yet produced Torah scholars of the caliber that can influence Torah scholars in their yeshivot. Unfortunately, all the attempts made in this direction have been meager, and they do not pose a true challenge in the area of learning.…. There are women who are proficient in Torah, but we have not yet produced Torah scholars in the true sense of the term. It is possible, but we have a long way to go, and in this sense we have not influenced the world of men's Torah learning.5
While Rabbanit Rosenberg is implicitly comparing men and women's learning, Professor Ross takes a different approach:
To draw a parallel, no one expected women who took up senior positions in the medical establishment to suggest different medical strategies for known diseases. Yet, as more female oncologists and gynecologists entered senior positions, they developed new alternatives to radical mastectomies and instituted changes in the facilities of hospital delivery rooms. A comparable process is already underway as a result of women's increased involvement in Torah study.6
According to Rabbanit Rosenberg, in addition to the mere fact that more women are becoming proficient in advanced Jewish leaning, the revolution has had two effects on the Jewish community. First, “A woman who studies Torah in a beit midrash raises the level of Torah discourse in her family. The Torah discussions in the house, among the family in general and between husband and wife in particular are directly influenced by the world of women's Torah learning.”7 Second, this learning opens the world of Jewish leadership to interested women. However, Rosenberg pointedly does not address the contentious issue of women serving as rabbis or halachic decisors.
Professor Ross ends her essay on women’s Torah learning (published in 2006) as follows:
A more ambitious scenario entertained by some sympathizers of the women’s learning revolution envisions a flood of new response literature, initiated in part by the women themselves … but beyond the time required for producing an adequate number of women possessing the wealth of knowledge and skills necessary for acceptance by the community of the halakhically committed as major league players, the reality of communal politics and the inbuilt conservatism of institutional law and religious tradition render such a vision of direct female advocacy for legal reform a very long-term vision, if not a utopian dream.8
Notwithstanding Professor Ross’s healthy skepticism, this process of women writing their own responsa has already begun and it is to this phenomenon that we now turn our attention.
JEWISH LEGAL WRITINGS BY WOMEN
Possibly the first fledgling steps taken in this direction occurred in 1988 with the publication of Jewish Legal Writings by Women. The book is a collection of seventeen articles written by Jewish women on various aspects of Jewish law, theology, and history.9 As Professor Moshe Benovitz points out in his article in Nashim, commenting on Jewish Legal Writings, only six of the articles can really be considered responsa; the others are either works of historical scholarship or surveys of halachic thought on particular issues.10 Many of the articles also deal with issues specifically related to women and halacha (e.g., breastfeeding, family purity, the wearing of tefillin or tzizit by women).
In their introduction, the editors squarely place the book in the context of the revolution in women’s learning. “The book should be seen in the historical context of Jewish women’s learning. The first Bais Yaakov school was established in Cracow, Poland, by Sarah Schenirer (1883–1935), in response to a dramatically changing society.…. there has been an explosion of women’s seminaries in Israel over the past two decades.…… and it all culminates here, with the publication of Jewish Legal Writings by Women.”11 This is an audacious claim and would not necessarily be agreed upon by all participants in the revolution of women’s Torah learning. It is interesting to note that one of the book's editors is a male rabbi and the initiator of the project was also a man. Of the seventeen contributors to the book fewer than half work full time in Jewish education. Many of the others, with advanced graduate degrees, work in academia, which highlights the point that at the time the book was written opportunities for women to teach Torah and learn intensively full time were limited.
The contribution by Malka Puterkovsky, entitled “The Obligation of Children toward Senile Parents,” is a comprehensive review of this delicate subject focusing on the question whether children may entrust the care of elderly parents to others.12 The responsum will be discussed in detail below but it is interesting to note that in this volume it is presented as a review article on this sensitive subject and only in Puterkovsky’s later book, Following herHalachicWay, is it transformed into a responsum to a specific petitioner, perhaps reflecting the initial hesitancy of these women scholars to issue formal responsa.
As mentioned above, a major part of the book deals with questions related to women and halachic observance. For example, may a woman wear tefillin or tzitzit, may a women say kaddish, may a women issue a halachic ruling, is a woman obligated in Torah learning, and is an unmarried woman allowed to undergo artificial insemination? The authors answer affirmatively to all of the above dilemmas, which raises the question of whether their psak was influenced by meta-halachic concerns, specifically the need for more gender equality in Orthodox Judaism and responding to the spiritual needs of women. In her article on artificial insemination, Dvora Ross demonstrates that the near unanimous rabbinic opposition to artificial insemination in single women is primarily due to social and not purely halachic concerns. One wonders whether the same contention applies to the other important issues raised in the book and responded to by the women scholars. In truth, each dilemma needs to be judged on its own merits. The role of meta-halachic considerations in halachic decision-making is complex, but what has traditionally separated Orthodox psak from Conservative psak is the notion that meta-halachic factors cannot and should not override halachic principles, as we will discuss below. Moshe Benovitz ends his review in Nashim as follows:
The emergence of women as the peers of men in most walks of society has influenced all of us in many unexpected ways. Professional women have redefined the notion of “career” for men and women, bringing about a blessed variety of options unknown in the pre-feminist era.… It is my hope that women halachicists will have a similar effect on halachic discourse; educated women, who have yet to receive rabbinic ordination or the title poseket, will decide halacha for themselves, paving the way for all halachic Jews to become greater talmidei hakhamim [Torah scholars], making their own halachic choices based upon the options found within the halachic system and their own meta-halachic considerations.13
Benovitz is more optimistic than Ross on the possibility of women becoming recognized halachic decisors and there are certainly signs that we are moving in that direction, but the impact of responsa written by women on the orthodox community at large is still in its infancy.
A LIFETIME COMPANION TO THE LAWS OF JEWISH FAMILY LIFE
One of the first halachic works written by a woman Torah scholar, Dr. Deena Zimmerman, was entitled A Lifetime Companion to the Laws of Jewish Family Life, with a forward by Rabbi Yehuda Henkin.14 Dr. Zimmerman was one of the first graduates of the Yo'atzotHalacha [halachic advisor] program established by Midreshet Nishmat under the leadership of Rabbanit Chana Henkin, which trains women to answer questions in the narrow field of family purity laws. She is a glowing example of the new woman Torah scholar, having twice completed the daf yomi cycle of the Talmud, part of which she taught in a daily shiur [class]. According to Rabbanit Rosenberg, “It took great courage to open this program, for here we are dealing not only with the opening of study to women, but also with the translation of the acquired knowledge – a manifest male and rabbinic domain. The program emphasizes that these women are advisors and not decisors, but nevertheless this is a real revolution.”15
Zimmerman’s book follows this paradigm by not claiming to offer new halachic insights but was, “written to help married and soon-to-be-married couples of all ages learn and understand the laws that govern Jewish marital life.” The book is a kind of written “Yo'atset” and does not plow new halachic ground nor was it intended to. The innovation is in the fact that a woman had the ability to write a halachic guidebook. On the cover of the book the foreword by Rabbi Yehuda Henkin is prominently mentioned, and one wonders why there is a need for this information to be on the cover, perhaps to emphasize that the “woman” is being supervised in her halachic decision-making. It is also interesting to note that Dr. Zimmerman is only a part-time Torah scholar, working most of the time as a pediatrician and lactation consultant. Perhaps this is by choice, but it also illustrates that fact that there are far fewer jobs available for women Torah scholars, particularly for those interested in adjudicating halacha. Dr. Zimmerman’s medical knowledge and the fact that it was written from a woman’s perspective adds much to the book. It is well known that many modern orthodox women prefer to ask sensitive family purity questions to a woman (similar to many women’s preference to be examined by a female gynecologist) and might also prefer to read a book by a woman.
Moshe Benovitz takes issue with Dr Zimmerman’s book as follows:
With this in mind, one would have expected that a woman writing a contemporary nidah [family purity] handbook for other women, especially one who is at the forefront of the yo'atzot movement, would be no less eager than Kahana to resolve outstanding issues in print, rather than referring the reader to a rabbi. Indeed, it is this very phenomenon of halakhic self-reliance which I had hoped would be the result of women's increasing halakhic knowledge. Surprisingly, this is not the case. Zimmerman refers the reader to a rabbi or “an authority” in no fewer than sixteen different cases. Even an issue with a potential for disgracing Orthodox halakhah, like the need to have a rabbi “check the underwear” when stains of a certain color are found that may be traces of uterine blood, in order to determine whether or not the stains render the woman nidah or extend her nidah period, does not lead Zimmerman to share with her readership the halakhic issues involved. One might think the highly intimate nature of this determination would indicate giving women the halakhic information they need to make it for themselves, but, on the contrary, it is the issue in which Zimmerman presses most vehemently for rabbinic consultation…… And why relegate the possibility of turning to a yo'etzet to last place, only for those women who are denigrated as “not willing or able” (a position and/or state of mind for which Zimmerman shows surprisingly little sympathy)? Moreover, the term “first address” would seem to indicate that the yo'atzot themselves are not made privy in their training to the secret lore regarding the color brown. They will either attempt to convince the woman who turns to them that presenting underwear to a real rabbi is not so bad, or serve as a conduit for presenting the underwear to a rabbi. If this is an accurate description of Zimmerman's assessment of her role and capabilities as a yo'etzet, one wonders why she herself took the trouble to complete the course, and why she felt the need to write her own guidebook.16
In Zimmerman’s defense it must be noted that her book is a fledgling attempt at serious halachic writing by a woman and there were non- halachic considerations in not wanting to ruffle any feathers. As the founder of the yo'atzot program, Rabbanit Chanah Henkin [the wife of Rabbi Henkin] has written in another context:
“First of all, I want to say, as head of a learning institution which is qualifying women to address questions of hilkhot nidda in practice, we should stop using the term poskot. I turn to the rabbis and to the women who are using the term and I beg them to stop. It is not accurate, not constructive and it will not result in poskot….… constructive changes will not be made in the glare of spotlights.”17
In addition, Benovitz’s call for halachic self-reliance is probably best made by an established halachic authority as opposed to women scholars attempting to gain legitimacy in the world of halachic decision-making.
FOLLOWING HER HALAKHIC WAY
The next stage in the development of women as halachic decisors is exemplified by Malka Puterkovsky who recently published a book of halachic responsa entitled Following HerHalachicWay.18 On the back cover of the book she is introduced as a “believing woman, religiously observant, married, mother of five children who lives in the mixed community of Tekoa. She has a master's degree in Talmud and has taught Talmud and halacha for over thirty years in numerous places in Israel, and for the last ten years she has answered halachic queries from all segments of Israeli society.”
This biography is noteworthy for the fact that she feels a need to introduce herself as a “believing woman, religiously observant,” something that would seem to be self-evident for the writer of a book of responsa, and to include the fact that she received a master’s degree in Talmud, something that very few male halachic decisors have. This may be due to the fact that when Ms. Puterkovsky started her career there were few options for a woman to obtain Talmudic expertise outside of a university setting. The gates of the men’s yeshivot were closed to her and the women’s institutions had not yet opened their doors. It is also interesting to note that as opposed to halachic works written by men, there are no approbations at the beginning of the book and the publisher of the book is a large secular publishing house. All this attests to the fact that this book is different from a standard collection of responsa by a male author.
It is customary for writers of responsa to begin their books with an introduction summarizing their theology and particular approach to halachic decision-making, and Following HerHalachicWay is no exception in this regard. The book begins as follows: “I give thanks to God who understands the heart that I have the merit to have grown up in this generation…… and on the opportunity I was given to attain the expertise to learn the traditional sources which are the spirit and the intellectual heritage of the Jewish people.”19
Right from the beginning Ms. Puterkovsky announces that her book of halachic responsa is intimately connected to the revolution in women’s Torah learning that has occurred over the past twenty years. She readily admits to her questioners that she has no official rabbinically sanctioned semicha [ordination] to answer halachic queries, but comments: “A woman who learns the language of halakha comprehensively and deeply is valued by the community and this expresses itself in the authority given to her by those who consult with her. In addition to the community, great rabbis and men of halakha also value the input of women partners in the halakhic discourse.”20
It appears that Ms. Puterkovsky is arguing that that her halachic authority does not come from above but from below, from the people. This is similar to the idea that the towering halachic authority of twentieth-century American orthodoxy, Rabbi Moshe Feinstein, expressed: “You can’t just wake up in the morning and decide you’re an expert on answers. If people see that one answer is good, and another answer is good, gradually you will be accepted.”21 It must be pointed out, however, that in addition to acceptance from the people, Rabbi Feinstein was universally recognized by his rabbinical colleagues as the pre-eminent halachic decisor of his generation.
In expressing her halachic philosophy and approach, Ms. Puterkovsky makes two salient points
The life experience of women in the modern age is fundamentally different from that in the time of the mishna and Talmud when the halachic rules that pertain to them were codified. Because of this, the involvement of women in the halachic discourse will be most fruitful in those areas that require coordination between how life is lived and the existent halacha.22
My point of departure has always been that it is impossible that observance of halacha will cause pain and distress to those who follow its path and I am particularly concerned about the plight of agunot [literally chained women whose husbands refuse a divorce].23
The first point relates specifically to women as halachic authorities and maintains that there is a unique “women's voice” that should impact on halachic decision-making. Hannah Kehat discusses this issue extensively in her recently published book Since Torah became Talmud Torah: Changes in the Concept of Torah Study in the Modern Age. She quotes a veteran Talmud teacher of women, Rabbi Ohad Tohar-Lev, who maintains that, “Women in their learning search for more spiritual meaning and are not satisfied like their male counterparts with cold intellectual analysis.”24 Likewise, Esther Fisher maintains that her learning is different from that of her male peers: “On the one hand, I put the text at the center, what's written, what's the meaning, and on the other hand I also put the reader at the center: what does this text mean to me?”25 Other veteran teachers disagree vehemently with this contention and maintain that the differences are in the individual learners as opposed to a biological difference. In the words of Estie Barel, “Why should one assume that one's style of learning is most influenced by one's biological sex?”26 Professor Chanah Safrai takes what one might call a middle approach and interestingly differentiates between subjects: “I am not sure if there is a particular women's voice in learning. However, it is clear that there is when I am teaching subjects pertaining to women, but when I am learning neutral subjects I do not think there is a difference between a male reading and a feminine reading if both were trained in the same beit midrash.”27
Interestingly, some of the approaches to Torah that have been called distinctively feminine have been suggested by Rav Shimon Gershon Rosenberg (known in Israel as Rav Shagar and an important scholar in the National-Religious world) as being sorely missing in the traditional men’s yeshivot. The central focus of this new direction is to make the learning of Torah relevant again to the modern student. The analytic method fails in this regard because it divorces the student from the reality in which he or she lives. The learning of tractate Kiddushin, with all its halachic details, should be directed towards an understanding of what the nature of Jewish marriage is, and, similarly, the study of tractate Niddah should primarily be a discussion of the Jewish attitude towards sexuality.28
The second point mentioned above is a more general methodological issue related to halachic decision-making. Ms. Puterkovsky is apparently arguing that psak should be teleological in nature, which is not at all self-evident and does not necessarily follow from the inclusion of women scholars into the halachic discourse. Conservative psak is distinguished by this characteristic. As Professor Roberta Rosenthal Kwall notes:
In 1949, a notable change occurred with respect to the Committee's lawmaking process when it adopted a formal proposal that the “decisions of the Law Committee shall be presented in the form of traditional responsum indicating its relationship to relevant halachic and other material.” With the adoption of this proposal, the Committee explicitly approved the propriety of considering extra-legal factors in addition to the classical Jewish law authorities…… As a result of this explicit change, the CJLS now bases its Jewish law decisions on more than past Jewish precedents.”29 For example, in justifying the use of electric lights on Shabbat the Conservative responsum argues: “In the spirit of a living and developing halacha responsive to the changing needs of our people, we declare it to be permitted to use electric lights on the Sabbath for the purpose [my emphasis] of enhancing the enjoyment of the Sabbath, or reducing the personal discomfort, or of helping in the performance of a mitzvah [commandment].”30
In another example, Rabbi Elliot Dorff, the current chair of the Committee on Jewish Law and Standards (CJLS), writes regarding homosexuality:
Now of course it is logically possible to say to gays and lesbians, as some rabbis writing on the subject have said, that if they cannot change their homosexual orientation, they should remain celibate all their lives. That result, however, is downright cruel. Moreover, I find such a position theologically untenable. I, for one, cannot believe that the God who created us all produced a certain percentage of us to have sexual drives that cannot be legally expressed under any circumstances. That is simply mind-boggling – and, frankly, un-Jewish. Jewish sources see human beings as having conflicting urges that can be controlled and directed by obedience to the wise laws of the Torah; it is Christian to see human beings as endowed with urges that should ideally be forever suppressed. To hold that God created homosexuals to be sexually frustrated all their lives makes of God a cruel playwright and director in this drama we call life, and our tradition knew better. It called God not only merciful but good. God's law, then, must surely be interpreted to take those root beliefs of our tradition into account. Jewish theology and law are not two disparate realms; here, as always, they must be interpreted to reflect each other.31
Ms. Puterkovsky’s book is divided into three sections. The first deals with questions relating to women in halacha and includes discussions of the permissibility of women learning Torah, whether women can serve as halachic decisors, and women and tefillin. The second section discusses dilemmas in family life and includes questions related to honoring one’s parents in difficult circumstances, end-of-life care, whether women can say kaddish for a deceased relative, and family planning. The third section deals with life in Israel and includes responsa on avoiding danger in halacha, mitzvah observance in a secular society, and what the characteristics of a Torah sage are.
The book is written differently from that of a classic collection of halachic responsa. For example, it is accessible to the educated lay person (who might be the book's primary audience) and it is written in modern Hebrew as opposed to rabbinic Hebrew. Rabbi Lichtenstein comments on this phenomenon:
This approach [writing in modern Hebrew as opposed to rabbinic Hebrew] offers distinct advantages, both in the connection it forges with one's readers and with the contemporary public, and in the style's characteristics: clarity, order, precision, etc. …… But there is a clear and perhaps dangerous price attached to this approach as well. An orderly, at times even restrained writing style, a lucid expressive mode, a meticulous and scientific and legal terminology – all these tend to draw upon and convey an academic atmosphere. They characterize a world in which intellectual objectivity, which is contingent upon maintaining a certain distance, is considered a supreme value; they consequently risk attenuating the burning passion of the beit midrash [study house] and the reverence of approaching the word of God in fear and trembling.32
Another innovation introduced by Ms. Puterkovsky is that each responsum begins with an extensive discussion of the question, including not only the relevant facts but also the psychological issues related to the question, plus a portrait of the petitioner and their connection to her. She calls this “the way of the question” and this approach is rare, if found at all, in the rabbinic literature. For example, the most important book of twentieth century responsa, Iggerot Moshe, written by Rabbi Moshe Feinstein, does not even include the question in the printed response, and at times one finds oneself grappling to ascertain the exact question that he is responding to.
In our discussion we will concentrate on the three responsa most related to medical ethics: care of the parent with psychiatric illness, care of the terminally ill patient, and family planning.
Care of the parent with psychiatric illness
Ms. Puterkovsky received the following question:
Hello, my father has had psychiatric illness for years but recently there has been a dramatic worsening of his condition and his care has become difficult and complex. I would like to receive halachic guidance on how I should care for him, what am I obligated to do for him? What is allowed and not allowed? I thank you in advance for your help. … Even though it was clear that the petitioner wanted to remain anonymous, I thought I needed to talk to him so the halachic guidance I gave him would be as clear as possible.33
Ms. Puterkovsky then relates the story of a father who has begun to refuse to take his psychiatric medication and as a result has become violent, and it is necessary for the son to use physical force to restrain him. The son questions whether this is allowed and also whether he should visit him in the in-patient psychiatric unit, even though this may cause embarrassment for the father. Puterkovsky ends the conversation by asking the petitioner how he feels. He is surprised by the question as he thought the discussion only revolved around the father’s care. She explains that halachically it is also important to know and assess his abilities to cope with this tragic situation.34
She divides her answer into five parts
Summarizing the Talmudic discussion of the halachic parameters of honoring one's parents
A discussion of the Talmudic narrative of a son dealing with his parent's mental illness
An analysis of the earlier halachic decisors’ approach to the problem
An analysis of the later halachic decisors’ approach to the problem
A summary and conclusion.
In her conclusion, Ms. Puterkovsky maintains that there is a fundamental disagreement between the Rambam and Raavad whether one is allowed to leave a parent with mental illness in the care of others. She then writes: “I explained to Amir [a pseudonym] that the halakha will be determined on his personal understanding of the situation and that it depends on whether you think your father would rather be cared for by you or rather would be embarrassed by you having to use force to care for him. In addition, one of the halakhic parameters in this decision is your ability both physically and mentally to cope with the situation.”35
This recognition of the importance of a “personal understanding of the situation” is characteristic of Ms. Puterkovsky’s approach to halakhic decision making. This is not only because of the importance of the role of personal autonomy in halakhic decision making (as Benovitz argued), but also because she strongly appreciates the differing contexts of a halakhic question that is consistent with a feminine approach to ethical decision making. For example, Carol Gilligan has famously pointed out that many women respond to ethical dilemmas from a different moral perspective.36 While understanding the importance of ethical principles, they refuse to ignore the particulars of the situation in deciding on a course of action. Building on Gilligan's work, Nell Noddings has developed a theory of morality based on caring and human relationships as the cornerstone of her ethics,37 which seems consistent with Ms. Puterkovsky’s approach in answering a halakhic query. It appears that Ms. Puterkovsky is making a similar innovation in her halakhic methodology, emphasizing the importance of the context and personal relationships in her decision making.
Care of the dying patient
Ms. Puterkovsky begins her responsum on halachic issues related to the care of the dying patient with a quote from the secular Zionist poetess Zelda on suffering and death (obviously something that will not be found in a traditional responsa collection). She writes about a question she received from the father of an old friend who she describes as, “warm and welcoming, good hearted and unusually wise and sensitive,” whose loving wife was suffering from metastatic cancer and who asked her husband to pray for her death so her suffering would end.
As above, she divides her answer into parts and ends with a summary chapter. She bases her answer on a responsum written by Rabbi Chaim Plagi, an important nineteenth-century halachic decisor. Based on the narrative of the death of Rabbi Yehudah Hanassi [Rebbe] and the actions of his handmaid,38 Rabbi Plagi ruled that one may pray for a suffering individual to die but adds an important caveat that this dispensation does not apply to the patient’s caregivers because of the fear that they might be biased because they are tired of caring for the patient.
In summarizing her answer, Ms. Puterkovsky makes two important points:
The handmaid of Rebbe made her daring move to stop the students from praying for the long suffering Rebbe to live, based on her “feminine intuition,” and this act was noted and approved by subsequent halachic decisors, even though she was a woman from an apparently low socio-economic background.39
Even though in her responsum Ms. Puterkovsky surveys the relevant halachic precedent literature, she informs the petitioner that it is his decision to make whether to pray for his long suffering wife to die (similar to her answer to the son above).40
Family planning according to halacha
This responsum is not written in response to a particular question but instead discusses the general issue of family planning and, in particular, the question of whether a young couple can delay the birth of the first child. Like the previous two responsa that we have seen, Ms. Puterkovsky begins with a lengthy introduction accompanied by a personal story. She also comments, “Not only is it permissible according to halacha to account for personal opinion in family planning, in my eyes it is obligatory.”41
The responsum is divided into five parts
An analysis of the positive commandments to reproduce
An analysis of the negative commandments associated with family planning
An analysis of the Talmudic sections related to family planning
Analyzing the role of personal decision making in family planning
A summary and conclusion
In section four, the most innovative part of her responsum, she quotes extensively from an introduction that Rabbi Lichtenstein wrote for a halachic work on family planning. Rabbi Lichtenstein writes: “It is obligatory upon every halachic decisor who rules in matters of family planning to relate to the issue with seriousness, an understanding of the complex situation and of the many factors that are part of the decision….… this sensitive area with specific human factors obligates a differential approach.”42
Ms. Puterkovsky builds on these words of Rabbi Lichtenstein to support her position that ultimately the couple should decide themselves on whether to delay pregnancy. She bases this position on the fact that since “specific human factors” play so heavily in the decision-making process, it is the couple that is in the best position to judge how these factors should impact on the halacha. This approach, which empowers the petitioners, does not necessarily follow from Rabbi Lichtenstein’s insistence that “specific human factors” play a central role in the decision. R. Lichtenstein could simply be arguing that a sensitive posek must take these factors into consideration when rendering his decision.
ESTHER WHAT IS YOUR REQUEST AND IT WILL BE GRANTED
A more traditional collection of responsa in terms of style, structure and language, was recently written by two women scholars. The book Esther what is your Request and it will be Granted is a collection of responsa written by graduates of the halachic leadership institute of Midreshet Lindenbaum under the leadership of Rabbo Shlomo Riskin and Rabbi Shuki Reich. The authors, Rabbanit Idit Bartuv and Rabbanit Anat Novosalskey, after studying for five years at the institute, received ordination to adjudicate halachic queries from Rabbis Riskin and Reich. In his introduction to the book Rabbi Reich writes: “Our generation, the generation of redemption of the Jewish people and on its shoulders the entire world, will enable women to play an equal role in the world and to share in the responsibility, and the learning of Torah will also be a reflection of the new status of women.”43
Rav Shagar, in his book Seeing the Voices, also speaks in redemptive terms when he promotes Torah learning for women: “One can view Torah learning for women as part of the redemptive process itself. It is possible that the women can redeem the Torah and free it from its present condition. Paradoxically, because there is no tradition for Torah learning by women, they have the ability to create a new path in Torah learning.”44 It should be noted that as opposed to Rabbi Reich who is focusing on Torah learning by women as a result of the redemption, Rabbi Shagar is talking in terms of women redeeming the Torah.
Esther what is your Request, is a short book (85 pages) and is written in more of a traditional style than Ms. Puterkovsky's, with a specific question followed by an answer. Similar to Ms. Puterkovsky's book, the authors deal with many questions relating to women's issues such as: Shabbat candle lighting, the obligation for women to rejoice on holidays, whether a woman can be a judge in a Jewish court, and questions of family purity, but the book also discusses the prohibition of smoking and bathing on holidays and the use of boilers on Shabbat.
The “women's voice” is also present in this collection of responsa. Rabbanit Novosalskey was asked the following question: “A year ago I was widowed after 35 years of marriage. Every holiday my husband used to buy me a present… Now that I am alone am I still obligated to celebrate the holiday with a gift?”45 The Rabbanit responds: “From between the lines I understand that it is difficult for you to celebrate because of the absence of your husband which is very understandable.… and you do not know if it is appropriate to celebrate without him and how to do it. Did I understand you correctly?”46 The petitioner responds: “You understood correctly. I am making great efforts to continue on with a pleasurable life and I don’t want the holidays to turn into sad days especially when there is a commandment to be happy on the holidays.”47
Rabbanit Novosalskey then goes on to explain that the question depends on an ancient disagreement on the nature of the obligation for women to experience happiness on the holidays. Is it a commandment on the husband to make his wife happy, or is there an independent commandment for women to be happy? Since many authorities take the latter approach, the petitioner should find a way to attain this special level of happiness on the holiday even in the absence of her husband.
In answering this question Rabbanit Novosalskey showed an element of sensitivity in “reading between the lines” in responding to the widow.
In another responsum from the book, Rabbanit Bartov is asked whether women are allowed to visit the Temple Mount.48 The assumption of the petitioner is that men are allowed to do this (even though this remains a contentious halachic issue), and she is asking regarding married women, who have a special problem related to the laws of family purity. Rabbinit Bartov responds that they may. (She deals with the question of unmarried women in a separate responsa.)
Rabbi Yosef Gavriel Bechhofer critiques the responsum on two planes. First, in a classic halachic dispute, he disagrees with Rabbanit Bartov’s contention that a woman may go to the mikva [ritual bath] within 72 hours of having sexual relations against the explicit ruling of the Rama in the authoritative Code of Jewish Law. In her words: “And even if your family custom is to follow the rulings of the Rema, in this deed there is no issue of forsaking the family custom, since the Rema did not address the issue of ascending the Temple Mount, but ruled for the Jews of the European diaspora only in connection with marital laws [as opposed to the laws of tumah and taharah – ritual purity].”49 Rabbi Bechhofer responds: “Anyone who has learned tractate Niddah knows that Halacha is more stringent in regard to the laws of ritual purity than in regard to marital law – in contradiction of the author’s assumption. Yet even more stunning is the flippant dismissal of a ruling of one the great pillars of Halacha.”50
Second, there is an ideological disagreement. Rabbi Bechhofer contends that there is a not so hidden bias in Rabbanit Bartov’s work, “Another way in which we assess a halachic work is by attempting to identify any bias that may inappropriately affect the author’s perspective.”51 She responds:
The reviewer criticizes my candid admission that I find puzzling and sometimes hurtful the lengths that are gone to in rereading the plain meaning of scripture thus explaining away the contradiction between what was clearly not their historical reality (i.e., women serving as dayanot) and the verse in Shoftim regarding Devora. He believes that I have shown ignorance of the acceptable style for halachic writing and worse, have committed the cardinal sin of having an “agenda” in writing a responsum. Let me refer the reviewer to Rav Lichtenstein’s article in Tradition, “The Human and Social Factors in Halacha,” and particularly his quotation there from Teshuvot Mas’et Binyamin – which is only one of many examples of poskim sharing their emotions and dare I say, their agenda. Can any posek or for that matter, any psak, emerge from an emotional or situational vacuum?52
To which Rabbi Bechhofer remarks: “I thank Rabbanit Bartov for directing me to Rabbi Lichtenstein’s essay. Nevertheless, its point is not relevant to this discussion. The Mas’et Binyamin notes how he felt emotionally impelled to research to the utmost of his capacity a matter of allowing an agunah to remarry. As a great posek, once he embarked on that research he restricted himself to intellectual analysis. Rabbi Lichtenstein gives no license for the introduction of emotion into the assessment of the positions taken by great authorities.”53
The ideological argument about the role of emotion in halachic decision-making between Rabbi Bechhofer and Rabbanit Bartov is of course not a new one. In her responsum Rabbanit Bartov goes to great lengths to make two theological points that clearly impact on her decision-making.
The importance of going up to the Temple Mount54
The importance of women participating in the experience.55
It is not unreasonable to expect that decisors who do not share these convictions (apparently such as Rabbi Bechhofer) will rule differently.
In a more general comment related to modern works of halacha, Rabbi Bechhofer writes: “The widespread availability of computer databases has radically changed the world of Halachic writing.” This change was once used by a distinguished scholar concerning another scholar: “He knows how to use the Bar Ilan [database of responsa literature] very well.” Resources that were once only at the fingertips of brilliant scholars with photographic memories, like Rabbi Yosef Rosen (the Rogatchover), Rabbi Yosef Engel, and Rabbi Ovadia Yosef, are now at the fingertips of almost anyone with access to a keyboard and a computer.56
Esther what is your Request is also distinguished by the use of Internet references, something that is new in the responsa literature, but that testifies to the importance of this mode of information retrieval even in the conservative halachic world and might reflect the academic background that many of the young women halachic decisors share. The use of halachic databases and other academic resources might be another area where women decisors can influence the halachic discourse. Rabbi Bechhofer is apparently wary of these changes, but one could also welcome this development as another opportunity to open the once closed and secretive halachic discourse to a more general population, as is happening to other intellectual disciplines in the Internet age. This “democratization” of the halachic process should also help women enter the conversation.
Modern Jewish women, in recent decades, have been given the opportunity to master the entire corpus of Jewish law and have begun to write halachic responsa. These early responsa have tended to focus on what one would call “women's issues” and questions related to family life and relationships. As we have seen, many of them are written in a style different from that of traditional responsum and they discuss in detail the personal and social context of the question. This tends to support the contention that there is a particular “feminine voice” in women's Torah learning, even though there is continued debate about the veracity of this claim. These early responsa have also met with criticism from both theological and halachic perspectives57 and have elicited responses from the authors.58 The writing of responsa by orthodox Jewish women is in its infancy and has not yet entered into the mainstream halachic discourse. However, with the increasing opportunities available for women to learn Torah at the highest level, the number of responsa written by women, and their quality and erudition, will only increase. It remains to be seen what impact they will have on Orthodox practice and Talmudic scholarship.
This is not a minor achievement. I would argue that the women of Migdal Oz have created a new Jewish prayer service that has not only influenced other institutions of women’s learning but also men’s approach to the selichot service as well.
I feel privileged to take note of another phenomenon that developed during these years. In the Beit Midrash in Migdal Oz, the gates of song and prayer were opened to hundreds of women during the week of selihot and on Yom Kippur. With the establishment of the Beit Midrash it was clear to us that it was incumbent upon us to provide the students with a minyan for the recitation of selichot …… a year later, the students and educational staff decided to conclude the service with a song. The students (in the women’s section, of course) were not satisfied with one song, but rather every night they continued to sing for an hour or more. We have demonstrated that it is indeed possible to actualize a world of Torah and prayer in a women's beit midrash within the bounds of halacha.
For further discussion of the important halachic and ethical implications of this story, see Alan Jotkowitz, “Nomos and Narrative in Jewish Law: The care of the dying patient and the prayer of the handmaid,” Modern Judaism, Vol. 33 (2013), pp. 56–74.
On the day that Rebbe was dying the Rabbis instituted a fast and begged for mercy and proclaimed that anyone who said that Rebbe is dying should be stabbed with a knife. The housemaid of Rebbe climbed to the roof and said the heavens are requesting Rebbe and the earth is requesting Rebbe, may it be your will that the earth should overcome the heavens. When she saw how many times Rebbe had to go to the bathroom and remove his tefillin [phylacteries] and the suffering involved, she said may it be your will that the heavens will overcome the earth. When she saw that the students continued to pray she took an urn and threw it to the ground. The students stopped praying (because of the sound of the urn breaking) and Rebbe's soul departed. Babylonian Talmud Ketubot 104a.