Over the past month, or so, HaZofe has hosted a fascinating debate/polemic centering on the question abolishing the so-called 'חומרא דרבי זירא' that 'The daughters of Israel have undertaken to be so strict with themselves that if they see a drop of blood no bigger than a mustard seed they wait seven [clean] days after it' (Ber. 31a). The argument, posed by a physician and a mikveh lady, is that the extended Niddah restrictions causes 'halakhic infertility.' In other words, women who ovulate within their 'seven clean days' are rendered incapable of conceiving as a result of R. Zera's stricture.
In a careful response, both well-written and well-reasoned, Rabbi Dr. Benny Lau and his wife, Yoetzet Noa Lau, effectively rebut the arguments for such a move. First, they point out that the stricture of R. Zera is restricted to the type of discharge that engenders the adoption of the seven clean days (i.e. the size of a mustard seed). It is not responsible for the conflation of the status of menstruants and zavah gedolah. That is due to a legislated ordinance enacted by R. Judah the Patriarch. Thus, we are not dealing with a humra in the usual sense (e.g. preparing coffee in a kli shelishi). Second, they aver that most cases of early ovulation can be treated systemically with limted hormone treatments. Hence, there is no reason to globally abolish a law that is, effectively, impossible to abolish because it was legislated by the Bet Din of Rabbi Judah the Patriarch, and R. Zera's addition was ratified early in the Talmudic period.
More to the point, the Laus note (and here they really hit the mark) that the initiative to do away with this rule is a typical example of certain sectors within th observant community to seize on prima facie historical reconstructions of the circumstances that led to the adoption of certain halakhic rulings, in order to call for their abolition. Such an approach is, in my opinion, misplaced and intellectually dishonest. It is misplaced because it displays terrible disrespect to Halakhah. It assumes that Halakhah has no integrity, no autonomy and no life of its own. It is, according to this understanding, purely the result of the external factors that impact upon it. (More on this later.) Such an approach is also intellectually problematic because historical reconstructions are always based upon conjecture. Indeed, that is the nature of the scientific method. One only knows what one knows at the time. Tomorrow, a new datum may well be discovered that will cause today's seemingly unassailable theory to crumble. Does it not seem a bit rash to overturn a law sanctified by the Bet Din HaGadol and two millenia of usage, based upon, in this case, a misreading of the sources? (I.e. Forcing women to distinguish between Niddah and Zivah would be an intolerable burden.)
Following the Laus article, HaZofe published three more responses. Two, that were published last week, were by rabbis and typically rabbinical, in a defensive sort of way. Friday, we were treated to a new experience. Dr. Ronit Ir-Shai, of Bet Morasha and Bar Ilan, damns Halakha with very faint praise. After a de jure statement of allegiance to Halakha, she proceeds to condemn Hazal, and all the post-Talmudic authorities, for the crime of Patriarchalism. In other words, because all Halakhists to the present day were men, they were (by definition) obtuse and unresponsive to women. (I suppose she figures that Noa Lau has 'gone native.') Now, I am not unaware of the fact that contemporary halakhists (especially Dayyanim) fall far short (to put it mildly) of their predecessors in the areas of Iggun, Mesoravot Get, Conversion and many other areas. That failing, however, is not inherent to the system. It is a function of the often dysfunctional way that Orthodoxy has confronted modernity. It is eminently rectifiable without irresponsible, disrespectful branding of חכמי המסורה all the way back to Moses.
There is, however, more to it than that. The type of stance bemoaned by the Laus and expressed by Dr. Ir-Shai and others reflects a readiness to sit in judgment on the Torah that I find highly problematic. Don't R. Zera, Rashi, R. Tam, Rambam, R. Yosef Karo, R. Moses Isserles, the GRA, R. Ovadia Yosef, R. Shlomo Zalman Auerbach, R. Moshe Feinstein and מו"ר the Rav deserve something of the benefit of the doubt?
Finally, the entire debate underlines the quandry of Jewish Law in the (dis)information age. These kind of discussions are simply not for the papers. Consider the following. Drs. Rosenak and Ir-Shai were both worked up over 'Halakhic infertility.' The latter was especially incensed by the nonchalant way in which the Laus advocated the use of hormone treatments to allow for delayed ovulation for women who found themselves in this situation. Such treatments, she correctly avers, can sometimes be dangerous for women. She sees here, incorrectly, insensitivity to the plight of women. It is, as if to say, that men will wreak havoc with a woman's body in order to preserve R. Zera's halakhic hegemony. This is a cheap shot, at best.
First, we are speaking of short term hormone use which is not at all comparable to the use of long term hormone treatments for birth control or post-menopausal developments.
Second, there are legitimate halakhic remedies for the type of problem raised by Dr. Rosenak. However, they are not for discussion in the paper!!! Halakha works on a case by case basis. Indeed, exactly in this context I have been privy to legal remedies that have left me stunned both by their extent and by the rabbis who proposed them. They were, though, ad hominem (so to speak), and so they should remain.
On so very many occasions, I heard the Rav זצ"ל say (both in private and in public) that Talmud Torah and Psak Halakhah require both extreme courage and heroism, on the one hand, and humility and surrender to God's Will on the other. I leave it to all sides in such discussions to reach the appropriate conclusions.
A Word from my Rebbetzin:
After I finished the above, my wife observed that in the Information Age rabbis have an obligation to intelligently and respectfully present halkhic options (though not global or specific rulings) on pressing issues. In the present case, for example, it is important to show women that there are remedies for which they can press. In many cases, uninformed and/or insensitive sources can lead to self-imposed humros or worse. Cogently, as always, she urged development of a via media between avoiding discussion and the irresponsible democratization of Halakha.