Is Abortion Prohibited by Halacha?

My goal with this series is not to determine the permissibility of abortions in halacha.  Rather, I am going to take you on a journey of what is really a strange and unusual halachic topic.  I am going to show you how incredibly divergent and diverse the various halachic opinions regarding abortion are.  We will start with the most lenient opinion found among the rishonim, the rishonim who held that there simply is no issur of abortion at all.

The only Torah source that discusses abortion is in Sh'mos 21:22-23 where the Torah discusses a case where a man strikes a pregnant woman and causes her to miscarry.  Though it is clear that the man did something wrong by striking this woman, no direct inference can be made from this parsha regarding whether or not causing an abortion intentionally with maternal consent would be permitted or not.  The only two obvious conclusions that we can make from this parsha are as follows:

1) That the status of the fetus is clearly not the same as the status of an adult independent human being (if it were equal, then this would be a case of murder be'shogeg, not a monetary case)

2) That in some sense, the parents of this fetus suffered a significant loss which requires compensation by the responsible party.

Let me emphasize here that when the Torah was given there was no such thing as a safe medical procedure done with consent and anesthesia to voluntarily terminate a pregnancy.  This will be a very important point as we proceed with our analysis, and we will come back to this later.

In the gemara, we do have some references to the act of the intentional termination of a pregnancy.

The heter to intentionally kill an unborn child when it endangers the life of the mother is clearly written in a mishna in Oholot 7:6 and it is therefore an undisputed halacha among the poskim.  The reasoning is under dispute among the rishonim, but I will not get into that issue right now.  However, it is not incorrect to say that this halacha in Oholot is consistent with what we learned in the pasuk in shmos, that until a child is born, it does not have a status of human being on the same level as that of the mother.

We then have a famous gemara in Sanhedrin 57b where a baraita brings in the name of Rabbi Yishmael that a Ben Noach gets capital punishment if he intentionally causes an abortion, which he derives from a pasuk.  Rashi takes the simple understanding of the gemara that this prohibition applies only to a non-Jew, whereas for a Jew the prohibition of murder only applies to a baby once he/she is born.  Rashi supports this by bringing the mishna in Niddah 44a which says that one who kills even a one day old child is liable for capital punishment, (and presumably not before one day of life).  Tosfos there D'H Ihu assumes that it is muttar (a language which they repeat twice) to kill a fetus before it is born, and they therefore deal with the issue of how it could both be muttar to be mechalel shabbos to save a fetus on one hand, but muttar to kill the fetus on the other hand, but that is beyond the scope of this series.

So we have Tosfos telling us that it is muttar to intentionally abort a fetus, and their source is the mishna in Niddah.  The simple way to understand Tosfos is that the braita in Oholot was only the opinion of Rabbi Yishmael.  Indeed, the language would suggest that this is the case as it says, "Meshum Rabbi Yishmael Amru ..." so Tosfos is simply paskening like the Chachamim.  This is indeed the overwhelming opinion among the poskim, that Tosfos held that halacha lemaaseh, abortion is permitted both for Jews and for Gentiles (see Maharatz chayas in his comments on that page, Maleches shlomo, Yakhil Shlomo, Shut Toras Chessed, Beit shlomo, Tzitz Eliezer and more). The explanation for this opinion is a little less clear, but R' Chaim Ozer Grodzenski in Shut Achiezer 3, 65:14 explains that Tosfos is paskening like the Chachamim (this is also the explanation of many other acharonim, including Shut Toras Chessed, Even Haezer 42:5, and Tzitz Eliezer 14 siman 100:2).  There are other well known places where Tosfos contradicts this opinion and seems to hold that there is some level of prohibition with aborting a fetus, and the attempts to answer this stirah are many, but I don't have the place here to go into the details.  However, this is the clear opinion at least of this Tosfos.

Tosfos is not alone among the rishonim who held that abortion is muttar.  The Rosh, as brought in the Shita mekubetzes in Massechess Erechin 7a also agrees that abortion is muttar, and the Ran in Chiddushei HaRan Chullin 58a seems to agree as well.  The Achiezer that we brought before clearly lumps the opinions of the Ran and Tosfos together, as he brings the Ran as a shita who agrees with tosfos that there is no Torah prohibition against abortion.  Many poskim assume from the Ran that although there is no issur Torah there is an issur miderabbanan, but the Ran does not say that at all.  His words are as follows: (my translation) "[the reason why a pregnant woman who is liable for capital punishment] gets executed and we do not wait until she gives birth ... Is NOT because the child is only a part of the mother (ubbar yerekh Imo) , but it is because she is liable for the death penalty, and we do not delay her justice, and for the child we are not concerned because he has not yet come out into the outside world (yatzah l'avir ha'olam)".  Exactly how some authorities derive from here that the Ran held there was a rabbinic prohibition against abortion is something that has always eluded me, as the Ran is simply saying that we are not concerned about killing a fetus that hasn't yet been born.

Regardless, we will get to the opinion that abortion is assur midrabbanan and the true opinion of the Ran in a later post.  For now let it suffice to say that we have at least two major Rishonim (Tosfos and the Rosh), possibly three (if we add the Ran), that hold that abortion is muttar. Period.  We also must mention here that some acharonim felt that Tosfos only meant that it is muttar for a Jew, and that he really does pasken like Rabbi Yishmael, not like the Chachamim.

So this is opinion number one, the most lenient one.  In our next post, we will deal with the next opinion, one that is slightly more stringent, and the Rosh and the Ran will play an important role again.  Hang in there and you'll see what I mean.

Abortion as a Rational Halachist

I have been thinking for a long time exactly how to approach the topic of abortion in this blog. The two topics that we have already discussed - the halachic definition of death, and the rationale for treating a goy on shabbos - were very different.  The first topic we analyzed with our five principles, and discussed how changing understanding of physiology could affect the way we define halachically when death occurs. The second was more of a moral dilemma, and we demonstrated how a re-analysis of the sources can lead one to a different understanding of the halacha then that which is often presented in many of the contemporary works of halacha.

Abortion is a different type of issue and we can approach it from many different angles.  It also has the unique distinction of being a very highly charged political issue, with two very active and vocal schools of thought fighting each other in the public and political arenas.  So it goes without saying, that Orthodox Jews want to know what the position of the Torah is on this volatile issue.  I have spent many years researching the subject in the Torah sources and there has been lots of ink spilled.  However, there is one very fascinating observation that i have made as I traveled through the traditional sources on abortion that will be the underlying theme of my blog posts on this topic.

I actually believe that the halachos of aborting a fetus is quite unique among the many areas that halacha deals with.  That is because the fundamental laws that pertain to abortion are extremely unclear from the Torah and chazal.  This has led to a situation where the later halachic authorities have scrambled to try to find out what exactly the fundamental issues are that need to be understood in order to decide practical halacha. The differences among the poskim regarding the fundamental understanding of exactly what prohibitions may be involved in aborting a fetus leads to dramatically different practical conclusions. I am sure that many of you are wondering what I mean, so I will explain a little more, and I promise that it will become clear as I develop these ideas.

I also need to start with the caveat that I am not going to try to take sides in this issue.  You are all aware that I am totally not afraid to promote halachic positions that I believe in, even if they are controversial.  So I am not afraid of saying what I believe to be true.  However, what I will set out to do here is demonstrate how unusual and fascinating this subject is, and how disparate the opinions of the poskim are, and explain why they are so different.  At the end I will also state what i believe is the right public position for Orthodox Jews in terms of politics and the legal system, and I am aware that this may lead to some heated and excited discussion.  However, my main point is not to promote any political position on abortion, but rather to bring you along on a unique journey through most interesting medical halachic topic.

Many if not most of the sources I will use are easily available and quoted in the Encylopedia of Jewish Medical Ethics by Dr Avraham Steinberg in his entry on abortion, so I owe him a great debt in compiling much of this material.  However, I will have my own take on these sources which you will understand as we proceed.

My first post will be "Is Abortion Even Prohibited?" and I will trace the shita of those poskim who hold that there is no real issur at all to perform an abortion.  This is not meant to give you an impression of what the halacha is, just to start with the extreme lenient opinion.  We will then work our way up until we reach the most stringent.

Is it "Only a B'Dieved?"

I started this discussion of treating a goy on shabbos with a description of my learning and research throughout my career, and the moral dilemmas that I faced. What happens when I have to be in the hospital on shabbos, and I have to face an actual, real live, gentile?  How do I treat him/her?

The halacha, is clear, no matter what I am supposed to treat the patient, so does it really matter why?  The bottom line is, yes, it does matter.  If the reason why I am supposed to treat him is because I am afraid of the repercussions, then it is a bedieved.  I should do everything I can to NOT be in the situation.  This type of attitude really does make a difference to my patients. Maybe it is intangible, maybe it is unmeasurable, but it does matter.  Being a doctor takes devotion, compassion, and empathy.  To be an effective physician, you have to be more than a scientist, you actually have to care about your patients. More importantly, you have to believe in the importance and value of what you are doing!

Now that you have seen and read my analysis in this blog, you know that it is the Torah from which I derive the incredible value and importance of treating this person, this human being.  And yes, this importance is such that it even transcends the prohibitions of shabbos.  Once we have given all human beings that live in and take part in a moral and righteous society, the status of a ger toshav, we can apply the words of the Ramban (Sefer HaMitzvot Mitzvah 16 - my own translation)

That we have been commanded to support and maintain the lives of the ger toshav, to save him from his enemies, so that if he were drowning in a river or if he was stuck underneath rubble, that with all our strength we will involve ourselves in saving him, and if he were sick, we will heal him ... and this is considered pikuach nefesh that supersedes the Shabbos, and this is what God meant when He said in His Torah ..."When your brother is destitute ... and you shall support him and the ger toshav, and he shall live amongst you ..."

To say that this reflects the true sentiments of the Torah would be the understatement of the century, as anyone who has ever read the Bible would tell you.

This of course does not mean that Jewish doctors should go out of their way to be in the hospital on shabbos to work.  Of course the Torah wants us to keep shabbos.  Of course the Torah wants us to spend shabbos at rest with our family, in our shuls and communities.  Of course we should try as much as we can to let our competent and caring gentile colleagues take hospital calls on Shabbos while we take their Sundays etc....  But once we are there, it is not at all a bedieved to take care of people. It is doing the work of the Ribbono Shel Olam, and it should be done properly and with enthusiasm.

Now I am sure that many of you are looking forward to my next topic.  I still have some more to say, and I was going to write a post about how the five principles of Rationalist Medical Halacha have been applied with my analysis of this issue.  However, I am eager to start with a new topic, so I will leave that one out for now.  So let me conclude with an invitation to say whatever you want in the comments.  I begged you before to reserve judgement until I finished.  Thank you so much for your patience, and now we can take our discussion into the comments section, and all holds are off, say whatever you think.  The next topic will be abortion.  Please give me some time to get my thoughts together, but I promise to do my best to start that subject asap.

So What About Everyone Else?

Please allow me to briefly interrupt this series with a tefillah for the safety of our fellow Jews and human beings that are in harms way in the Haifa area as a result of this terrible forest fire.  May the Ribbono Shel Olam comfort the grieving families of those who have perished, may He restore to good health those that have been injured, may He restore the lives of those who have lost their homes, property, and possessions, and may He give strength to those heroic people who are working to control the blaze, and restore life to the Haifa region.  May all of us accept upon ourselves, in the zechus of the many victims of this fire, to be more compassionate in all of our dealings with all fellow human beings.

We are now going to continue with our analysis to the next obvious question.  In our last post we essentially extended the obligation to save life on shabbos to non-Jews by two halachic mechanisms.  However, both of these opinions are based on the assertion that today's gentiles are to be contrasted with the idol worshippers of the time of the Chazal.  Whether we take the Meiri's approach that they are included in "Am Sheitcha beTorah uveMitzvos, or the approach of the other authorities that they are considered gerei toshav, our obligation to save their lives is dependent upon the fact that today's gentiles are part of a just and moral society.

This leads to the following question.  According to the Meiri, a just and moral society is by definition a monotheistic society. According to the other authorities, to give a gentile the status of a ger toshav, he would need to keep the seven Noahide laws, including the Laws concerning Avodah Zarah.  Let us assume that Christianity and Islam are monotheistic religions. (The question of Christianity and avodah zarah is a major issue, but not one that i plan on dealing with here in this blog, as almost all of the authorities that we have mentioned until now do not consider Christianity to be avodah Zarah, at least for gentiles.  This can be due to their understanding of Christianity itself, or because Shituf is not prohibited for a non-Jew or some other rationale. In an article by David Berger, he has much difficulty accepting this, but we cannot deny the fact that the meiri and the other authorities explicitly did not consider Christianity to be avodah zarah).

So what about Hindus, Buddhists, other religions, and indeed even outright atheists that may still believe in and establish what we would otherwise consider moral and just societies?  Can we desecrate the Shabbos to save their lives as well?  After all, isn't belief in One God one of the seven basic Noahide Laws?

There are several ways to deal with this issue.

For the first approach I must give credit to a very thorough article by Rabbi David Berger, that you can access here.  See page 26 and 27 of his article where he presents Moshe Halbertals analysis of the meiri as follows.  It is clear from Halbertal's study of the Meiri that the reason why the Meiri felt that monotheism was necessary in order to treat gentiles equally was because non-monotheistic societies were corrupt and immoral.  There are references in the Meiri that suggest that he held that philosophers, who may not believe in God, but whose philosophical beliefs lead them to lead moral and just lives, that they would also be considered equal to Jews in the same way as monotheistic gentiles that do profess belief in monotheism.

Remember that the Meiri himself did NOT base his shita on the principal of Ger Toshav (despite the fact that many authorities might have understood the Meiri that way).  The principal of Ger Toshav would require the gentile to accept the idea of One Deity.  However, it is plausible, based on Halbertals extensive research, that the meiri would not have required monotheism for a gentile to get the privileges that he extended to monotheists.  Let me reiterate, that the Meiri did not believe that there could be such a thing as a society of simple masses that could be moral without a fundamental belief in a God that judges our actions and rewards and punishes our behavior accordingly.  He did however allow for the possibility of individual philosophers that may lead moral lives despite a lack of monotheism.  Had the Meiri been aware of modern non-Monotheistic societies that are moral and just, it is entirely plausible that he would have considered them to be worthy of all the privileges that he extended to the Muslims and Christians of his time.

I admit that this may seem at first glance to be a bit of an unjustified stretch of the Meiri's opinion. However, Rabbi Berger brings some strong support for this idea from an essay by HaRav Ahron Soloveitchik ZT'L.

Let me quote from Rabbi Berger's article:

The view that gentile behavior rather than theology determines how Jews should treat them is at least implicit in a relatively recent English essay by R. Ahron Soloveichik. He argues that love of other Jews must be blind, but love of gentiles, which he sees as an obligation expressed in the Rabbinic principle called “love of people” (ahavat ha-beriyyot), is grounded in the intellect and varies with the degree to whichgentiles lead moral lives and treat Jews decently. This position is spelled out more rigorously in his novellae to Sefer ha-Madda. Here he maintains that the discriminatory laws against non-Jews result only from their status as evildoers (their shem rasha). Non-Jews who behave righteously by following the six Noahide laws other than the prohibition against avodah zarah are not considered evil as long as their theological error was inherited, as the Talmud suggests about pagans in the diaspora, from their parents and is thus considered inadvertent or even a result of compulsion. It is worth quoting more fully R. Jacob Emden’s application of this talmudic dictum in a responsum to which R. Soloveichik alludes. “The Sages,” says the responsum, “declared, ‘The gentiles outside the Land of Israel are not worshippers of avodah zarah; rather, they follow the customs of their ancestors.’ Therefore their blood is precious in our eyes and would remain so even if we were ruling over them so that they were conquered under our control in our own land. After all, the Sages said—even with respect to full fledged idolaters--that one does not lower them into a pit. How much more is this so in the diaspora where we take refuge under their protection; we are, then, obligated to protect them with all our ability and save them from death and from any loss or damage to the point where even guarding their money should be a labor of love."(all italics are my own)

I will get back to Rav Y Emden in a minute, but here we have non other than HaRav Ahron Soloveitchik saying exactly what we had just thought might be too much of a stretch to attribute to the Meiri.  He clearly divorces the requirement of the seventh mitzvah (I do not mean to suggest that monotheism is the least important of the seven, just the seventh because according to haRav Soloveitchik's this approach it is not required for the purposes of being considered a moral person) of believing in One God from the equation necessary to be considered a good as opposed to an evil person.  According to HaRav Soloveitchik, any gentile who is not evil, whether or not he is a monotheist.  This makes our approach to the Meiri a little more palatable and real.

A second possible approach would be the approach of HaRav TH Chajes, the "Maharatz Chajes" ZT'L.  In his essay entitled Tiferes L'Yisrael he takes on this problem in a different way.  Let me digress for a second to encourage anyone who believes strongly in the imperative to treat all human beings equally to \please read this essay in its original.  If you ever wanted validation that your beliefs are well founded and well grounded in true Torah ideals - this essay will give you all the satisfaction that you need.

Remember that Rav Chajes held that today's gentiles are considered Gerei toshav, and therefore we are obligated to save their lives, even on shabbos.  But how could someone who worships Avodah Zarah (assuming that the gentile were non Muslim and non Christian - Rav Chajes explicitly does not consider Christianity to be avodah zarah for a gentile) be considered a Ger toshav?  So HaRav Chajes explains (my own translation):

See the Ramban in Parshas Acharei on the pasuk "VeLo Taki HaAretz...." who writes that [worship of other gods]  in conjunction ("beshituf") for non-Jews was only prohibited within the land of Israel ... and see Mor Uketziah by the Gaon R Y' Emden OC 224 the "shituf" is permitted to non-Jews ...and according to my opinion, This is what Chazal meant when they stated in Chulin 13b "The non Jews of outside Israel are worshipping "avodah zarah" in purity, as they are only following the customs of their forefathers (minhag avoseihem b'yedeihem") and see the Rambam in Peirush HaMishnayot first perek of Chulin on the Mishnah regarding ritual slaughter performed by a non-Jew who writes that there are two categories of Idol worshippers - those that are truly serving forms and talismans, and those that are simply following the customs of their forefathers ... and the intent of the Rambam is to say that [the second category of idol worshippers] truly intend to worship the God of Gods (Elokei Ha'elokim) but they simply mix into their worship other concepts...  

So according to HaRav Chajes, most other religious people today would really be considered monotheists for our purposes here, although they themselves may mix other foreign concepts into their worship.  I am not an expert in comparative religion, so i do not know how far it is realistic to extend this concept in contemporary times.  However, this is another way that this halachic authority extended the privileges of gerei toshav to all moral human societies.

If one carefully examines the words of Rav Y Emden that Rabbi Berger and Rav Soloveitchik brought, you will find that he seems to be saying exactly the same thoughts as HaRav Chajes, and he explicitly extends this to "full fledged idolators", and he applied the same principle of "minhag avoseihem b'yedeihem".

Let me add one more point, before I leave this post.  Regardless of which of the above approaches we take, even if it can be argued that there may still be some individuals or societies "out there" in today's world who would not qualify for this protection, we would still be allowed to save their lives on shabbos due to Eyvah.

So we can safely conclude that the Torah teaches us that even on shabbos we are obligated to save the life of any human being that is part of a society that is moral and just. However societies that are evil and corrupt we are only obligated to save their lives due to Eyvah. I think that sounds a lot different than what we thought the Torah taught us before we embarked on this mission.

In my next post, I will handle the following question: How important is this obligation to save non-Jewish lives?  As a physician, I am often told that I really should not be in the hospital on shabbos in the first place. In fact, some argue that it may not even be advisable to become a physician as it may one day require you to be in the hospital on shabbos.  Is this true?  Should I feel guilty about being there in the first place?  Have a great shabbos, and I will IY'H return next week with more.

Is the Meiri a Lone Figure in the Wilderness?

We summarized in our last post the opinion of the Meiri regarding how one is supposed to relate to gentiles in contemporary times.  I will get back to developing the opinion of the Meiri as it would apply to different societies today.  However, I first would like to review some other authorities that have either said similar ideas to the Meiri, or have come out in support of the Meiri's opinion.

Many authorities have used the concept of the ger toshav to describe our dealings with non-Jews in our day.  I must credit R'Gil Student of the Torahmusings blog for bringing to my attention a teshuvah of Rabbi Nachum Rabinovich, of Maaleh Adumim.  In this teshuvah (see Melumdei Milchamah Teshuvah 43) he writes of the obligation to save the life of an injured gentile on Shabbos.  He differentiates between an injured terrorist and an ordinary non-Jew.  According to him, an ordinary non-Jew who is a Christian or Muslim (we will deal with other religions and moral atheists later in the blog, I promise) would be considered a ger toshav.  He establishes in the teshuvah that there is a mitzvah to save the life of a ger Toshav, at the same level as there is a mitzvah to save the life of a Jew.

His sources are Rav TH Chajes (the "Maharatz Chajes"),  who held that modern day Christians and Muslims have the status of Gerei Toshav.  He then brings conclusive proof from the Ramban in his comments on The Rambam Sefer HaMitzvos 16 that saving the life of a ger Toshav would supersede Shabbos.  According to R' Rabinovich, the terrorist would not be considered a ger Toshav, by virtue of the fact that he is not a moral human being, and therefore should only be saved on shabbos due to Eyvah.

So this is a little bit of a different angle then the Meiri.  According to the Meiri, non-Jews who live in a moral and just society are considered "Am she'Itcha be'Torah Uve'Mitzvos" and we are therefore obligated to save their lives on shabbos.  According to R' Rabinovich, once we give contemporary gentiles the status of Gerei Toshav, we are obligated to save their lives on shabbos in accordance with the opinion of the Ramban (and other Rishonim including Rabbeinu Hillel, and the Ralbag as quoted in his teshuvah.)

Several other authorities have also used the Ger Toshav argument. One famous one is HaRav David Tzvi Hoffman, who explicitly writes that contemporary gentiles (he is referring to Christians) should be considered Gerei Toshav.  Rav SR Hirsch (see here for example) writes similar ideas in many places, though I am not quite sure how much of it was apologetics. Rav Hoffman's words though, invoke a clearly defined halachic category of Ger Toshav, and thus do not sound like mere apologetics to me.

Rav Hirsch also brings the commentary of Rav Yaakov Emden on Avot 4:13, which strongly support the argument that Christians and Muslims that are moral and just should be considered Gerei Toshav. However, he does not actually take the plunge and explicitly write that they would have that halachic status.  His words are stirring and offer us some strong backing. However, although it is possible that he would agree, I don't think I have enough evidence to claim that Rav Emden actually held that they would have the halachic status of Gerei Toshav.

Then there are those authorities who understood that the Meiri's position was based on the principle of Ger Toshav.  Although it seems after Halbertal's study that this was probably not the opinion of the Meiri himself (as the Meiri's opinion was even more "liberal" than that), many great authorities believed that this was the basis of the Meiri's opinion.  Chief among these authorities was none other than Harav Kook ZT'L (see Iggrot Reiyah vol. 1 page 99).

HaRav Kook writes a very interesting language, which even if this was all I had, it would have been enough for me. "HaIkkar" is his language (the primary or correct position - in my admittedly poor translation). He writes there that HaIkkar is like the opinion of the Meiri that ALL societies that are just and moral are coinsidered Geirim Toshavim .... see his letter in detail. Rabbi Isaac Herzog ZTL takes this approach as well in several places, equating modern gentiles with Geirei Toshav.

HaRav Ahron Soloveitchik ZT'L, in his book Logic of the Heart, Logic of the Mind  see pages 139, 151 also invokes the Shita of the Meiri when discussing treating gentiles in our time.  He uses the Meiri to develop his approach that differentiates between gentile societies based on their morality and behavior. This is somewhat similar to the approach of R' Rabinovich, and clearly HaRav Soloveitchik was relying on the opinion of the Meiri.

I also cannot leave this post without mentioning the now famous remark of the Seridei Aish, HaRav YY Weinberg ZT'L, who stated in one of his letters to Professor Atlas (see Torah Umaddah Journal 7 - 1997) that the Shita of the meiri should be adopted as normative halacha.

So although we must admit that the Meiri is a minority halachic opinion, we have now reviewed many well respected halachic authorities who either agreed that the Meiri's opinion should be adopted as halacha, or came to similar conclusions as the Meiri with slightly different reasoning (the ger toshav argument).

We are far from finished, in my next post, I will deal with the issue of the opinion of the Meiri and how it may relate to gentiles that are not Muslim or Christian, but may have a moral and just society.