Friday, January 7, 2011

The Shita of the Rosh and the Ran, and the Common Sense Principle

First of all, I sincerely apologize for the delay in writing these posts. Please understand that I have not given up this pursuit, I am only very busy and have limited time on my hands.  I will not stop, so please hang in there.

I have been accused by some of my friends that I am guilty of deciding what my conclusion is going to be before I do my research on a topic.  They have pointed to the common sense principal as a key example. If I decide beforehand what common sense dictates, and then I set out to find a halachic way to a conclusion that fits with my view of common sense, then aren't I searching for justifications for my own beliefs rather than searching for the Torah's viewpoint?  Well, in a sense I am guilty as charged.  However, I do have what I believe to be a satisfactory explanation and answer to these charges.  Please forgive me if I wait until another post in the future to answer these charges.  In the meantime, be patient and I hope you will be impressed with the scholarship and research enough to see that my opinions here are at least viable and reasonable enough halachic conclusions that we need to take them seriously. If you disagree, fine, but at least i hope you will admit that they are not simply justifications.  I still have way to much substance to share with you before I have to respond to my detractors.  In fact, part of my answer to them is the amount of substance that I have compiled.

Last time I left off with a promise that I would come back to the opinion of the Ran and Rosh.  It is my intent to decipher their opinion today.  But first let me remind you of the common sense principal.  For those of you that do not remember my first post and the five principals of rationalist medical halacha, let me quote it again here (it is number 4):

4) The Common Sense Principle - Some Halachic decisions seem to go against common sense.  In many cases, this is simply a result of not appreciating true Torah values in contrast with the values of the rest of the modern world.  In these cases we are clearly obligated to try and understand the Torah values, and implement them into our lives, in contrast with the whims of modern society. However, sometimes simple common sense should lead you to understand that the psak halachah you may have received is wrong.  If an analysis of the sources based on our principles leads one to conclude that the Torah and common sense actually do agree, then one should live by common sense, and not according to what is obviously an erroneous psak halacha.

Now what should common sense lead one to believe when it comes to a topic such as abortion?  Ouch, this is a difficult one, especially for those who find themselves on the news screaming "right to life' or "right to choose"  they seem to be convinced of what is common sense.  However, when laws are passed in almost all states in the US, they generally follow along lines that are similar to the following:

1)Pregnancies with babies that are viable and can live and survive on their own, should not and cannot be terminated.

2) Pregnancies with babies that are not viable and cannot survive on their own, there may be circumstances where they can be terminated

Now admittedly, there are many different variations of the details, but there are very few people that would disagree about the basics of what I just said, barring the extremists on both sides of the issue.  If you don't believe me, look at the laws of almost every state in the Union.  When push comes to shove, society seems to agree that that is a reasonable basic approach to this touchy issue.

Does the Torah agree more or less with this idea?  Does the Torah provide us with guidance regarding when and if abortions can be done? Of course it does, and once we deliniate the many opnions as to the origins of the prohibition of abortion in the Torah, you will understand the basis of the Torah's guidance. Now we can go ahead and analyze the Rosh and the Ran.

Allow me to lay out the sugyos in shas that the Rosh and Ran (and Ramban) deal with and try to reconcile.  We will find that they have a very similar, if not identical approach, and from this analysis we will derive a very coherent, and common sense approach to this difficult topic.

1) The sugyah in Yoma 82a which discusses the permissibility of a pregnant woman eating forbidden foods, and eating on Yom Kippur, because if she did not eat, her fetus would abort

2) The sugyah in Eruchin 7a which discusses a woman who dies in childbirth, that one can violate the sabbath M'D'Oraytah in order to open her abdomen in an attempt to save the unborn child, and the mishna in Eruchin that states that a woman liable for capital punishment gets executed even if she is pregnant

3) The mishna in Oholot 7:6 which discusses a woman at risk of losing her life in labor, which permits killing and dismembering the child in order to save the mother

4) The sugyah in Niddah 44a which discusses the issur of killing a human being, even a one day old infant, but explicitly rules out (either the prohibition of murder or the death penalty - we'll get to this later) the killing of an unborn child

5) The pasuk in the Torah that punishes the killer of a fetus with a fine, and seems to indicate that it is not the same as if he had killed a human being

We already brought the words of the Ran in Chullin in our last post.  There he stated that the reason we do not wait to execute the mother, is because the child had not yet entered this world. He also invoked there the idea that the reason why we execute the woman is NOT because ubar "lav yerekh imo" implying that in general we do look at the child as a limb of the mother, and not as an independent human being. We will return to that thought shortly.

Now let us move on to the words of the Ran in Yoma 82a.  There he is discussing the gemara that permits a pregnant woman to eat forbidden foods because if she did not, she would lose her child.  The Ran brings the Ramban in Toras HaAdam who entertains the following question, why is it that she is allowed to eat forbidden foods to save the baby, is it because we are concerned with her life, or the baby's life.  The first peshat that the Ramban brings is that we are allowed to let her eat, in order to save the baby.  The justification that the ramban uses for this is the principle that "challel Shabbat achat, kedey sheyishmar shabbatot harbey" "violate this sabbath so that he (the fetus in the future) can keep future sabbaths."  (Much ink has been spilled in an attempt to fully understand this principle, and we will get back to it in the next post, which will be devoted to explicating the opinion of the Ramban himself.  Today, I am only bringing the Ramban in order to lead us to an understanding of the Ran and Rosh).  The ramban goes on to explain how this works well with the sugyah in eruchin that allows us to be mechallel shabbos in order to cut open a dead woman to save her baby on shabbos.  But then the Ramban notes, even though we have three sugyos that would seem to tell us that "les bey mishum hatzalas nefashos" "there is no concept of saving a life as it pertains to a fetus", and these three sugyos are 1) The mishna in Oholot that permits us to dismember a fetus to save a woman in labor 2) The pasuk which refers to a fine for someone responsible for aborting a fetus 3) The gemara in niddah which states that only a baby one day old but not a fetus is considered murder, despite these three clear sugyos, we can STILL be mechallel shabbos due to the principle of challel shabbat achat.....

The second peshat that the Ramban brings is that actually, we cannot save the life of a fetus on shabbos.  Importantly the language that the Ramban uses when describing this opinion is that we cannot save the life of a NEFEL (a fetus which is a nefel) on shabbos (which is a diyuk that seems to have floated right by many meforshim without taking note of its implications, because it would seem to suggest that the ramban is differentiating between a fetus that can survive on its own, and a fetus that cannot survive on its own).  according to this opinion, the reason why we allow a pregnant woman to eat forbidden foods is because we are concerned that if she were to lose her fetus, that she would then become in a state of sakanah.  According to this opinion, the reason why we are allowed to be mechallel shabbos to cut open a corpse is because she is no longer alive, and now the fetus is no longer "yerekh Imo".  Therefore we look upon the corpse of the mother as an obstacle in front of a live baby, as if "a door is locked in front of him", and therefore to save the baby we can cut the corpse.

The implications of this Ramban are many, and we will get back to the opinion of the ramban himself in the next post.  But for now, let's see what the Ran does with it.  The Ran questions the Ramban as follows:

"I don't understand what the purpose is in all of these minutiae, Since there is no such thing as a danger to the mother which is not a danger to the fetus, and no such thing as a danger to the fetus which is not a danger to the mother..."

From this, many contemporary poskim have concluded that the Ran holds that an abortion is prohibited because we are putting the mother at risk by causing her to abort.  This is not at all what the Ran is saying.  rather, the Ran is questioning the Ramban's explanation of the hetter for a pregnant woman to eat forbidden foods.  He`says that you cannot prove from here at all that one can be mechallel shabbos in order to save a fetus, because a sakanah to the fetus is a sakanah to the mother as well.  So all you can prove from this gemara is that one can eat forbidden foods when a woman's life is in danger. That is the Ran's objection.  Therefore we do not need the Ramban's very controversial and difficult to understand concept of challel shabbat achat (CSA).  And now, according to the Ran, all of the sugyos mentioned by the Ramban in support of the fact that it is muttar to abort a fetus make perfect sense. The Ran remains consistent with his opinion mentioned in Chullin that we are not concerned with the life of the fetus when executing the mother. More importantly, the ran remains consistent with his opinion that we developed in the last post, that there is no issur in aborting a fetus, if not for the fact that we would be putting the mother in danger.

If this is so, why then can we violate the shabbos to cut open a corpse according to the Ran.  Before I answer this, let me analyze the opinion of the Rosh.  The Rosh in Yoma 82a brings the same ramban, and makes the exact same comments that the Ran made regarding the Ramban's diyuk that we can be mechallel shabbos to save the life of a fetus even

We will come back to this Rosh several times in future posts, because it is fundamental, however, if you recall, we brought the language of this Rosh last time as he supports the opinion of Tosfos that it is muttar to abort a fetus.  After establishing this, he asks the following obvious question, (my translation), "If it is permitted to kill a fetus, the why can we be mechallel shabbos to save him? as it therefore it appears to me that it is considered like a safek (a possible) saving of life, and nonetheless it is still permitted to kill the fetus [in order to save the mother], (but on shabbos we can save even a safek nefesh)"

The Rosh requires some explanation, what exactly is the safek?  Is it a safek in the halacha, or is it a safek in the specific status of this child.  I mean, is the Rosh concerned that maybe a fetus is conceptually considered a nefesh, in which case aborting it would be a safek murder, or maybe the Rosh is not concerned with the concept, he knows that murder does not apply to a fetus, but rather he is concerned that when the woman dies in childbirth, maybe this baby is alive. In brisker terms, is it a safek in metzius, or a safek in din?

It is clear from analyzing the Rosh in its entiretly, and by comparing it with the Rosh in Yoma what he means.  If it was a safek in din, then he would have been required to go back and explain to us why all of the other sugyos indicated ckearky that it was muttar to abort a fetus.  The pasuk by demey vlados, the gemara in niddah about a tinok ben yomo, the mishna in Oholot, and the sugyah about a woman liable for capital punishment, all of these proofs the Rosh still stood his ground that they proved that it was "Muttar LeHargo".  Only in the case of shabbos, once the mother is no longer alive, if the baby is still alive, NOW it is a safek, because maybe the baby is alive, and maybe the mother's corpse is only an obstacle preventing the baby from living!  So now we have a safek sakanat nefashot, and are thus allowed to be mechallel shabbos.  See Tosfos in Niddah 44a D'H Ihu whi also holds that there is no issur of abortion, and he answers this problem in exactly the same way. Incidentally, the Ran and the Rosh both just finished quoting the words of the second opinion mentioned by the Rambam, who also said the same thoughts regarding the status of a fetus as being independent once the mother is no longer alive.  The Ran and Rosh never disagreed with that concept, they only disagreed with the Ramban's idea that one could conclude from the gemara that you can be mechallel shabbos to save even a nefel, even a child that could never survive due to the controversial concept of CSA.

It is quite clear that the Ran would agree with this as well.  Remember that the Ran had the exact same analysis as the Rosh in Yoma regarding a pregnant woman eating forbidden foods, and the exact same comments on the Ramban's analysis.  Also recall our discussion of the Ran in the last post in which the ran in Chullin clearly held there was no issur in aborting the fetus.

I know that this was long and drawn out, but if I am to demonstrate the opinions of the Rishonim, I felt that I had to develop them completely, so I will not be accused of simply reading the poskim at face value.

So we have now developed the opinions of Tosfos, Rosh and Ran, all of whom hold that there is no issur in aborting a fetus.  Clearly, they understood the gemara in Sanhedrin which bring Rabbi Yishmael in the same way that tosfos did, just like the Achiezer explained, that it was a shitas yachid, and the chachamim disagree. Next we will move on to the Ramban, and start finding reasons why abortion may be prohibited. I promise you that we are not finished with the Rosh and Ran, please feel free to comment, but we have a lot more work to do.

One more thing before I let go.  I wrote about the common sense principal to remind my readers that we are heading to a rationalist and common sense approach to this very controversial area of halacha.  You can hopefully see this slowly developing as this discussion continues.  Once we establish that there is no specific issur of abortion in the torah (at least according to many opinions), we can then explain the many valid reasons that are Torah based for not doing abortions, without a real issur, we will also have exceptions to the rule which are reasonable. and then PRESTO, we will have a very common sense approach that works!  Hope you are still with me.  Shabbat Shalom

No comments:

Post a Comment