By Rabbi David Polsky

“My body, my choice!”–is a phrase often shouted by or written on the signs of people protesting against masking and vaccine mandates. Many have noted the irony that these activists—many of whom oppose legal abortion–(intentionally or not) borrowed (co-opted?) it from those defending reproductive rights. Similarly, an organization supporting Medically-assisted suicide in Canada, Dying with Dignity, uses the catch-phrase, “It’s your life, it’s your choice.”

Whatever its exact phrasing or usage, such discourse argues for freedom and autonomy stemming from a person’s ownership over their own body. Aside from questions regarding its application (Covid also harms the bodies of others; pro-life activists argue that the fetus is its own life), such language is also problematic to religious people who believe that G-d is the true Owner of each human body. Yet, this theology is also problematic, especially from the perspective of sexual harassment/assault and its victims. From whence comes the value of consent? If the victim’s body was not truly her own, without bodily autonomy, what is the religious/philosophical/legal source for her assailant’s guilt (aside from any sins on their part)? Can #metoo and the fight against harassment argue from anything other than autonomy?

I believe that a great deal of wisdom regarding these issues can be gleaned from a story recorded in the Mishnah about the great sage Rabbi Akiva (Bava Kamma 90b). A man is taken to Rabbi Akiva’s court by a woman for pulling off her head-covering in public (which, in such a culture, is akin to disrobing her).. Rabbi Akiva decides that the man is liable to pay the woman for embarrassing her. In order to get out of paying, the man sets up a sting operation to get the woman to expose her hair in public. He has witnesses hide before breaking a jar of oil outside the woman’s home. She comes out and briefly pulls aside her head covering to rub some of the oil in her hair.

He then brings his witnesses to Rabbi Akiva and argues that he should therefore be exempted from liability. This woman is so immodest! How could she be entitled to restitution for him doing the same thing she is so willing to do herself?

Rabbi Akiva responds that his argument has no legal validity whatsoever. No matter how the woman personally behaves, it does not change the fact that the man disgraced her by exposing her. There is all the difference in the world between acting immodestly and violating her consent.

Rabbi Akiva then illustrates his point with other parallel distinctions. Jewish law forbids a person from harming themselves. Someone who strikes themselves may have violated a serious (and likely Biblical) prohibition, but they would never be liable to pay for these self-imposed injuries. Nonetheless, if others were to then punch that very same person, they would still be liable for restitution. His second example is property damage. A person may be prohibited from damaging their own property (based on Deuteronomy 20:19), but they would not be liable for such damages. Yet others who damage the same person’s property would be liable.

These examples can be best understood in light of the following Mishnah (Bava Kamma 92a): Even if a person asks others to hit them with the stipulation that those who do are exempt, it does not work, and those that hit them are liable for damages anyway. On the other hand, if someone makes a similar condition when asking others to tear their clothes, it works and those that do are exempt from paying. The most compelling explanation for this law is that only G-d is the true Owner of a person’s body. The person therefore has no right to harm themselves and therefore does not even have the authority to ask another person to hit them. Property is different, since a property owner can be said to be its owner, and they therefore have the power to exempt others from liability for destroying their property. Nonetheless, I would argue that the prohibition on destroying property one owns suggests that, to some degree, G-d is the true Owner as well.

This background enables us to better appreciate Rabbi Akiva’s response to the man. It may be true that a person is not the true owner of their body, but it is just as true that neither does any other human being. The woman in the Mishnah may not be the ultimate authority over her own body, but it is even clearer that neither is the man. Even if G-d and not she is the true Owner of her body, it does not and should not obviate the legal requirement of her consent. To put it another way: The examples Rabbi Akiva uses to show that the woman is not the true owner of her body illustrate that she has authority and control over it, making her consent (or lack thereof) absolutely essential.

I think of this Mishnah whenever cis-gender men–especially those who are Jewish and/or religious blame women for cis-male violations to their bodies, their privacy, and their dignity. Comments about what a victim had been wearing, what she had been doing, or her sexuality in general were and are always cruel and, well, victim-blaming. Yet the Rabbi Akiva story presents a religious articulation of the significance of consent, including and especially to religious conservatives skeptical of autonomy.

It may also be helpful in lending greater nuance to the fight over reproductive freedom. Like one of my rabbis at Yeshiva, I vehemently support Roe and reproductive rights while at the same time feel uncomfortable with the movement’s usage of bodily ownership. Arguments that “it’s THEIR body” may ring hollow to those who sincerely believe that G-d is the real Owner of the human body. The Mishnah thus enables us to distinguish between this theological truth and what the law should impose on pregnant people (or endanger them) against their wills. Yes, the Mishnah responds, a pregnant person may not be the owner of their bodies, but neither is Samuel Alito, Greg Abbott, or Ron DeSantis.

Rabbi David Polsky is a rabbi, educator, and Kashrut professional living in Southfield with his wife and two girls. Before moving to Michigan in 2016, he served as the rabbi of Congregation Anshe Sfard of New Orleans for five years. Rabbi Polsky received his semikhah from Yeshiva University. He published a series of articles making a halakhic case for police accountability. Rabbi Polsky additionally serves as a Scholar-in-Residence for Congregation Beit Levitz and volunteers for many local Jewish organizations, including Detroit Jews for Justice, The Jewish Community Relations Council, and Limmud. He is also writing a Jewish mindfulness and wellness curriculum for elementary school students for Kids Kicking Cancer. He tweets as @MotownRabbi.