Wednesday, January 12, 2011

The First and Second Reasons Why Abortions may be Prohibited

The last few posts were dedicated to explaining the opinions of Tosfos, the Ran, and the Rosh, that abortions are permissible.  However, we did get a little hint as to two possible reasons why one may not be allowed to perform an abortion, even according to these opinions.  However, this was not specifically because abortions are prohibited, but rather because there may be other types of damage that one is doing when he/she terminates a pregnancy.  I apologize for the fact that these posts are lengthy and detailed, and that we will devote a large amount of time to this topic.  Unfortunately, this must be done in order to impress upon you the points I am trying to make.

First, let us reexamine the Rosh and the Ran for a minute.  We concluded that both of these Rishonim hold that there is no specific prohibition against performing an abortion.  However, both of these authorities pointed out that when one causes damage to a fetus, that one puts the mother in a situation of danger as well.  Clearly this means that if one were to perform an unsafe abortion, the Ran and the Rosh would certainly agree that such an act would be prohibited.  We can also infer from here that when an abortion is performed in a safe medical procedure, that this problem would not be an issue.  So we have our first inkling of a reason why some terminations would be prohibited, that would be unsafely performed procedures.  Many poskim have pointed out that according to the Ran and the Rosh, it would seem that a safe medical abortion would be permitted. (these include Levushei Mordechai YD Siman 87, Mishpetei Uziel Chelek 3 CM 46, Avnei Tzedek CM 19, Binyan David 47 and others).

Now let us look at the Ramban a little closer.  You may recall from the previous post, that it was the Ramban who told us that despite the fact that there is no prohibition of murder by a fetus, that one may still violate the Sabbath for the sake of the fetus alone because iof the rule "challel Shabbat Achat K'dei Sheyishmor Shabbatot harbeh" Violate this one sabbath [to save this potential child's life] so that the child can keep many sabbaths [in his/her lifetime].  This I will call the CSA rule.  The poskim generally assume that the Ramban holds that there is no prohibition of murder by a fetus from his words in Chiddushei HaRamban Niddah 44a where he explicitly writes as follows (my own translation): "Even though a fetus is not considered a living human soul (nefesh adam), and the laws of saving a life do not apply to a fetus (lekah bey mishum hatzalas nefesh) Nonetheless we can violate the sabbath to save him/her because there the Torah permits it due to CSA..."  This is similar but even stronger language then we saw the Ramban use in Toras Ha'Adam in the last post.  Remember also that the Ramban was quoting the Ba'al Halachot Gedolot  (known as the Behag). We also see a similar statement by another important Rishon, the Ramah in Sanhedrin 57b.

If we think for a moment about this Ramban, the CSA rule really impresses upon us the incredible value that the Torah places on the fetus as a potential human being, and a potential shomer mitzvot.  So much so that even chillul shabbos is permitted simply to preserve the potential of this future person.  It would follow then, that the corollary of this would be how terrible it would be to end the life of this future person, and thus prevent the existence of a future human being and shomer/shomeret mitzvot!  This then would be another reason, derived from the Ramban why an abortion in most circumstances should not be done.  However, we must realize that according to the Ramban, the Ramah, and the Behag the Torah never explicitly prohibits abortion.  So although we can infer from these authorities that abortions are not good things to do according to the Torah, we can also conclude that they are not prohibited either, and that there may be circumstances where it would be warranted to perform such an abortion.

This approach is indeed taken by several Acharonim and modern poskim, and they use the Ramban as their starting point (see Ohel Moshe 3 page 49, Rabbi M Hirshler in a Sefer Zicharon for R Yechezkel Abramsky ZTL 5738 page 335).

One more point before we leave the Ramban, remember that he did also bring a second opinion, that did not agree with the CSA principle.  These authorities would be even more lenient in deciding when an abortion should be performed then the ramban was, they may even permit it outright, although we do not know enough about this opinion to decide what they would say.

So let me summarize what we have determined until this point.  remember that I promised we would go through numerous opinions, starting with the most lenient, and moving on to the most stringent.  My goal is to demonstrate two things, # 1 to develop a common sense halachic approach, and # 2 to show how unusual this topic is due to the incredible array of halachic opinions regarding its permissibility/prohibition.  So far we have three opinions, starting with the most lenient.

1. Tosfos - abortion is Muttar
2. Ran and Rosh - abortion is muttar as long as you are not putting the mother in physical danger by terminating the pregnancy
3. Ramban, Ramah, Behag - Abortion is a bad thing because we are preventing the existence of a future Human being and shomer Mitzvos, but it is still permitted to do in extenuating circumstances.

We still have a lot more to say on the topic, and you will be amazed regarding the array of different opinions.  I hope to convince that this is indeed one of the most unique areas in halacha due to the diversity of opinion about it.  Next we will talk about two topics simply because I cannot be accused of ignoring them.  One is that we will attempt to decipher the opinion of the Rambam, and the second is to discuss the famous contradiction in Tosfos.  If I am keeping you in suspense, that's fine.  Hang in there until next time.

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