Sunday, February 27, 2011

Some Housekeeping and a Summary of Opinions

Now that I have completed my compilation of the many varied explanations for the prohibition against abortion, I have to finish off with a little “housekeeping” before we move to the next step.

First, I want to point out that there are many other sources that I did not explore in detail in this blog.  The reason why I chose not to is because although they are very important sources, they didn’t add or say anything that hasn’t already been said by the poskim that I have brought already.  If anyone wants more sources to do their own research, and what I have already provided so far is not enough, then you are more than welcome to ask me via email for sources.  Do not assume that I have not reviewed these sources because I didn’t mention them.  I have been heavily influenced by all of the sources, that I have spent at least 15 years studying and reviewing. This blog encompasses many years of study and research into a topic that I think is very important, unique, and highly misunderstood.

Second; I would like to say something about what I call the “most poskim” problem. By this I refer to the terrible temptation that seems to plague writers about Halacha and abortion to resort to phrases that begin with the words, “most poskim ………”

I think that by now, anyone reading this blog would have come to the very unique Halachic conclusion that the phrase “most poskim ……” has no place in the discussion of abortions in Halacha. The vast array of opinions regarding abortion and its Halachic permissibility/prohibition is so astounding, so diverse, and so inconclusive that any claim to one particular opinion being the “majority” is absurd.

The only two “most” statements that I might agree to a little bit, would be something like the one that follows and its counterpart: “Most poskim agree that in general abortions are not looked upon favorably by Judaism" Though it is a defensible statement, it gives almost zero practical guidance to anyone.  So although it is true, it is practically useless. The counterpart statement is “most poskim agree that according to the Halacha in certain instances abortions can or should be done”. This is an equally useless statement, for the same reasons that we described above.

What then would be useful? Hang in there; we are almost ready to answer that question. Just a few more things to cover and it will start to make sense.

Third; there have been many proofs bandied about by various parties to this discussion, especially by the most conservative camp; the abortion = murder camp.  So I cannot leave this section without at least mentioning these proofs, so that all of you know that I have been as complete as possible. By “proofs” I am referring to statements of Chazal or the Rishonim that indicate one opinion or the other. Obviously, I will not repeat those Rishonim whose opinions we have already reviewed in detail.

Those that advocate that abortion = murder quote the mekhilta in Mishpatim here Where Issi ben Yehuda states that one who aborts a fetus is “dino massur lashamayim” and his language seems to indicate that it is due to the issur of retzicha. Indeed, the Meshech chochmah here  seems to hold this way, and also learns the Lekah Mid’am Tosfos this way as well.)

They also quote the Moshav Zekeinim Ledaas Baalei HaTosfos here Tosfos as quoted there asks in the name of “makshim Ha’Olam” (“everyone asks”). Why is the man who strikes a woman causing a miscarriage not liable for death for killing the fetus? And Tosfos goes on to answer that it is because it is a safek (doubt) whether or not this child will be healthy and live. (This Tosfos is extremely difficult to comprehend, as it flies in the face of the open Gemara that explicitly excluded a Jew from the death penalty for killing a fetus.  One must assume that this is how this Tosfos understood the reasoning behind this Gemara).

As far as proofs for those who hold it is not murder, we have already extensively reviewed most of their opinions and proofs.  I would just like to point out a few more sources that we haven’t yet raised.  The Radvaz here, who emphatically rules out the possibility of murder by a fetus, The Meiri here, also explicitly rules out the possibility of murder by a fetus, and the Semah, in Choshen Mishpat 425:8 does so as well.  A few more later sources that I haven’t yet discussed that rule out the fetus from the issur of retzichah include the Tel Orot here who agrees with Tosfos that there is no issur at all, and the Tiferes Yosef here who rules out the possibility of murder as well.

I would also recommend reading through the words of the Netziv, who deeply analyzes the the Ramban, Ran, and Behag that we discussed back in our post here.  The Netziv, in the Ha'amek Sha'alah here also emphatically proves that a fetus is not considered a human being, and therefore the rules of murder, and conversly, the rules of saving life would not apply.  He proves this from several places, including the very gemara of Rabbi Yishmael, who uses the pasuk of shofekh dam ha'adam ba'adam to prohibit gentiles from performing an abortion.  He claims, that if we need a seperate pasuk to include a fetus, then obviously a fetus is not considered an "adam".  He goes so far as to explain that according to the Behag, one may not violate the Sabbath to save a fetus unless one is absolutely certain that the fetus will die without the intervention.  this is true despite the genmeral rule that one violates the sabbath even in situations of doubtful risk to life.  However, since a fetus is not an "adam", he holds that one may not violate the Sabbath.
Now we can summarize all of the opinions that we have described and complete this stage of the process. Please forgive me if I remind you again that many of these opinions are held by several, often many other poskim. If I attribute them to one particular posek, it is only because they are the ones that I used to describe that particular approach, usually because the literature attributes it to them or because they were the ones who explicated it the clearest.  I do not mean to say that this or that posek is the only one who holds that particular opinion.

  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
  4. Maharit - Abortion is assur because one is wounding, or causing a chavallah, in the pregnant mother.  According to this approach, abortions would be permitted for constructive purposes, in the same way that one is allowed to wound oneself for a constructive purpose.  Some would extend this even further and say that a woman can abort her own fetus, just as she is allowed to wound herself.
  5. Rav ZN Goldberg 's understanding of the Rambam - that abortion would be prohibited due to chavallah of the fetus (this would be an additional reason for the prohibition, above whatever understanding you may have of the Rambam, and above other reasons suggested by HaRav Goldberg in other places. I am not claiming that HaRav Goldberg holds that this is the only reason why an abortion may be prohibited.  - see our lengthy discussion of the Rambam's opinion here)
  6. According to the Ohr Sameakh's understanding of the Rosh, one who performs an abortion without the permission of the parents is transgressing the prohibition of gezeilah, stealing.
  7. According to HaRav SZA ZTL one who aborts a fetus is guilty of gezeilah from the fetus him/herself.  Whether or not the parents would be allowed to give permission remains an open question.
  8. Chavos Yair,  due to the prohibition of wasting seed (which according to him is a torah prohibition)
  9. According to the Mizrachi and Rav Chaim Palagi and their interpretation of the Rishonim,  the Chachamim declared that a Jew is prohibited from performing an abortion because a gentile is prohibited, and it would be inappropriate for a Jew to be allowed to do something that is prohibited to a gentile.  They explicitly and vehemently reject the possibility that it has anything to do with Shefichat damim (murder).
  10. According to R Yaakov Emden, abortions are prohibited because of waste, which is a rabbinic aspect of the HZL prohibition; therefore they can be performed in circumstances of great need. If the child is illegitimate from a relationship that would incur the death penalty, the RYE would allow it outright.
  11. The opinion of the Beit Yehuda and the Chofetz Chaim (according to his interpretation of Tosfos) that it was a rabbinic decree and the reason for this decree was because it is akin to murder.
  12. Abortion is a rabbinic decree because permitting abortions would encourage promiscuity (Chavos Yair 31)
  13. Abortion is a rabbinic decree because it would be a negation of the mitzvah of P’ru U’rvu (the obligation to procreate) (Mishpetei Uziel here)
  14. Abortion was a rabbinic decree because it will prevent the potential of a future life (Mishpetei Uziel here)
  15. Abortion was a rabbinic decree because by terminating a pregnancy, one prevents a future soul from doing mitzvos (Ohel Moshe by Rav Moshe Zweig Chelek 3 page 49)
  16. Abortions are considered morally wrong by other religions, and thus we should also take a moral stand (Ohel Moshe, see above)
  17. The opinion of Rav Moshe Feinstein that it is indeed prohibited due to murder
  18. The opinion of the Maharam Shick and Sdei Chemed that it is Avizrayhu of retzichah due to chatzi shiur
  19. The opinion of the Minchas Avrohom that it is due to murder but he differs from RMF by only applying this rule if the fetus is viable
  20. The opinion of the Meshekh chochmah and Moshav Zekeinim LeDaas Baalei Tosfos who hold that it is murder and liable "medin shamayim", and the drasha of rabbi yishmael only exempts Jews from punishment from Beit Din
  21. One more opinion is that of the Zohar, which I did not discuss because it is unclear from the Zohar what the Zohar actually holds from a Halachic perspective.  The Zohar speaks about how terrible abortion is because it is ruining the creation of God. (see` Zohar Shmot 3:2)
Now that we have accomplished this task, we can move on to the next step, differentiating the stages of pregnancy, and applying some rationalist principles to come up with a coherent and rational approach.  Those of you who were lost in the nitty gritty details of the past two months, might now want to start paying attention to the next several posts, as we will take a dramatic turn toward the “rational”, which is the ultimate goal of this blog.  Those of you who stuck with me, congratulations, you now truly have the confidence to move forward in this most fascinating and unique Halachic subject, which I believe is unparralleled.

Other Poskim that Relate Abortion to Shefichat Damim (Murder)

In our last post we began our discussion of the poskim who hold that abortion is prohibited due to the Torah prohibition against murder.  We discussed the two main proofs that these poskim have, namely the proof from Tosfos, and the proof from the Rambam.  As we proceed with this most stringent approach to the attitude of Halacha regarding abortion, it is important to point out that there are important differences between the poskim who find themselves within this camp.  I will describe several of these opinions in the second half of this post. 
One often quoted but difficult to understand teshuva is the famous Tzofnas Paneakh of the rogatchover gaon here.
In his usual terse and abbreviated style he  writes in two short paragraphs what it would take most poskim around six pages to write.  It is also difficult to tease out exactly what his final opinion really is on the matter, but let me at least single out some the important points, and explain what his final psak is.
 Those that have been keeping up with the blog should find this pretty simple to follow. He was asked regarding a woman who purposely caused an abortion if she should require a divorce because oif the sin she had committed. He analyzes this question first by delving into the question of what sin she might have done by having the abortion.  First, just like RMF, he proves from Tosfos Lekah Mid’am that it must be a Torah prohibition, and assumes that would be shefichat damim (murder). Then he asks the famous setirah in Tosfos and answers it by saying that the issur is not  murder but rather it is chavalah, like the maharit, and thus the Tosfos of Lekah Mid’am meant that it was prohibited not because of murder, but because of chavalah.  Then he brings the proofs from the Rambam and the rodef issue that he interprets like RMF did, that it really is murder.  Then he also claims that it would be considered stealing from the husband to abort.  His conclusion then seems to be that there is a makhloket between Tosfos and the Rambam i.e. that according to the Rambam it is retzichah, and according to Tosfos it is chavalah.  So how does he pasken? His final words are hard to interpret (remember that he was asked regarding the requirement to divorce her, not regarding the prohibition of abortion), but here they are (my own translation):
“This is certain that she (the woman who had caused an abortion deliberately) has done a great prohibition (“issur gadol” – so she might require a divorce) however if it is less than 40 days into the gestation it is not such a big prohibition according to many opinions (we will deal with these opinions later in the blog) as we have written before. So if she accepts upon herself not to do this again, and we need to impress upon her that it is within the category of murder (“begeder shefichas damim”) then we can assume that she is like someone who committed the sin inadvertently (“beshogeg”) as she was under the impression that she is not commanded not to abort a fetus therefore she would not require a divorce).....”
So it would seem from the conclusion of the Tzofnas Paneakh is that he actually held like Tosfos, i.e. that it was prohibited due to two things, chavalah and stealing the property of the husband. He also believed that at least according to the Rambam it would be murder (recall that the Rambam only said his halachah by a woman in labor, we have no idea if the Rambam would apply this same principle before the baby is “ne’ekar latzeit” in labor).  He only said his last words in order to impress upon the woman how serious the sin is, be he himself still held that the issur was chavalah and not murder.  If you look carefully at his words when he brings the Rambam, he brings as an “ayein sham” (“look there”) though he doesn’t seem to be paskening like that.  Also, the term “begeder shefichas damim” sounds like it is not actually shefichas damim, just that it is like shefichas damim and that we use this term just to impress upon her its importance.
So although we see the Tzofnas Paneakh learning the same p’shat (explanation) in Tosfos and the Rambam as RMF, he does not come to the same conclusion. Rather he concludes that it is chavalah and stealing from the husband.  I analyze this carefully only because the Tzofnas Paneakh is often brought as a source that holds that abortion is murder, but that is certainly not clear from his teshuvah.
The next important source for the abortion = murder is the Maharam Shick here.
The Maharam Shick clearly also understood the Lekah Mid’am Tosfos to be saying that abortion is prohibited for a Jew Mid’oraytah, and he also understood that the deoraytah is based on the prohibition of murder.  He doesn’t deal with the contradiction with the other Tosfos who says that abortion is permitted.  However, in order to explain how it could be both murder but still not liable, he explains that the fetus is like a “partial soul” (“miktsas nefesh”) and like a “half amount” (“chatzi shiur”) and thus is prohibited because we hold that half amounts are prohibited.  With this he also tries to explain the Rambam who had to use the din of Rodef to allow killing the fetus, because it is murder, but only half murder, which he terms “avizrayhu deretzichah” meaning prohibited because of murder, but not really murder.  Using the concept of “chatzi shiur” is quite an original idea, but also extremely problematic.  I am not aware of there being a “shiur” for murder.  This concept is usually used for prohibitions for which there is a set amount, such as eating non-kosher food, for which one needs to eat a specific amount to be liable, but less than the amount one is not liable, but one still may not do it.  The Maharam Shick is applying that principle to murder, which is quite an unusual “chiddush” (novel idea).
Another source that is often brought to support the idea (see footnote # 160 in Encyclopedia Halachtit Refuit entry on Hapallah by Dr Avraham Stenberg for one example) that abortion is murder, is the Divrei Yissachar here. It is simply not true that he holds this way, I will quote his words for you to see for yourselves (my own translation)
“…Any fetus is not yet a live child, rather he will be in the future a live child, and therefore one who destroys him is as if he is spilling blood…(“ke’ilu shofekh damim)...
One who reads his words carefully will see that he holds just the opposite, that indeed it is NOT murder, but rather the problem is that one should not destroy a future life.
Another source often brought to support the idea that abortion is murder is the Minchas Avrohom here. He clearly does understand the Rambam and Tosfos like RMF did, however, it is notable that he only holds that it is considered murder in cases where it is known that the fetus is “kalu lo chadoshav” (“completed his gestation” – presumably enough to survive outside the womb). I will deal with this concept later when I discuss the stages of gestation.
I could go on with more sources, but I am trying to make a point, and I think my point has been adequately made.  My point has two parts to it. The first is that while it is true that there are poskim who held that abortion is prohibited due to the Torah prohibition of murder, virtually no posek ever claimed that it is truly murder before the fetus is viable (viable means able to survive on its own outside the womb).  The second part is, that even once the fetus is viable then it is not truly murder, most poskim hold that it is only “avizrayhu” of murder.
The concept of “avizrayhu” is a very broad one indeed and basically refers to any prohibition that while it is not technically one of the cardinal sins of avodah zarah, giluy arayos or shefichas damim (idol worship, adultery, and murder) it can be considered “in that category” or avizrayhu.  The term has been used to describe things as diverse as using herbs from a tree that was used as an idol for healing (avizrayhu of avodah zarah) to embarrassing someone in public (avizrayhu of murder – as one “whitens the face” of the person shamed by draining the blood from his head).  This is not the place to discuss the concept at length.  However, to make the jump from claiming that a posek who held that abortion is “avizrayhu” of shefichat damim (murder), to then proclaim that he held that it is murder is quite a leap!  It is clear to anyone that has studied five lines of Talmud in his life that the two concepts are very different.  All one can learn from these poskim is that abortions are prohibited, and it is in some ways similar to murder.
Before I leave this discussion, I need to mention the Sdei Chemed here, who also deals with this topic at length, and does understand the lekah mid’am tosfos like RMF, that it is indeed a Torah prohibition.  He quotes the Maharam Shick and the concept of avizrayhu of retzichah, but his discussion is quite detailed, and now is not the place to review all of the points that he makes.  Although it is very thorough and detailed, he doesn’t say anything that we haven’t already seen in the other poskim we have reviewed.
So let me summarize the opinions of the poskim who hold that it is a torah prohibition that is at least to some extent related to murder, and we will add them to our growing list of explanations for the prohibition against abortion.
1)      The opinion of Rav Moshe Feinstein that it is indeed prohibited due to murder
2)      The opinion of the maharam Shick that it is Avizrayhu of retzichah due to chatzi shiur
3)      The opinion of the Minchas Avrohom that it is due to murder but only if it is viable
(I am not listing the tzofnas paneakh, because as we explained above, he really holds like the maharit, that it is due to chavallah, and he only write that one can tell the woman that it is “begeder Shefichat damim to scare her into promising never to do it again)
In our next post, I will review a few of the “proofs” from the rishonim that have been used by many in this debate, and discuss them a little, and then we will sum up all of the opinions that we have so far reviewed.  That will end this part of our discussion. We will then spend some time discussing the various stages of pregnancy, which will lead us to an application of our “rationalist” thinking.  Thus, we will finally be able to develop a coherent, relevant, and practical approach to this very complicated topic.

Monday, February 21, 2011

Abortion as Murder - The Same Sources Lead to Opposite Conclusions!

It is always fascinating how different scholars can often look at the same set of data and come to exactly opposite conclusions.  This is true in just about every field of human endeavor, and it is certainly true in Torah as well.  Of course it leads one to speculate how much each scholar’s conclusion was influenced by his/her preconceived notions, ideas and biases, and how much came from a true analysis of the evidence.  This is a question that typically can’t ever be fully answered, though often certain suspicions may seem more obvious than others.
This phenomenon is clearly evident in the halachic attitude towards abortion, perhaps more than in any other area of Halacha.  You will see how the exact same source material that was used by all of our previously mentioned sources to prove that abortion is not considered murder halachically, was used by another large group of contemporary poskim to prove the opposite assertion.  The dichotomy is quite astounding, and it really leads one to wonder what the influences were that led to these widely divergent conclusions.
Let us hearken back to our discussion of the two famous “conundrums”, the setirah (contradiction) in tosfos (see our blog post here), and the opinion of the Rambam (see blog post here).  Essentially, it is the analysis of these two issues that is the primary dividing line between the two camps.  Of course, there are many arguments thrown back and forth, and we will touch upon many of these during our discussion, but almost every posek who deals with this topic ultimately bases his conclusion on his understanding of one or both of these Rishonim.
Today I will describe how the opinions that hold that abortion is a violation of the Torah prohibition of retzichah (murder) use the Tosfos and the Rambam as a proof to their assertion.
First, let us analyze Tosfos.  Let us recall the Tosfos in Sanhedrin 59a who states that due to the rule of Le’kah Midam, it must be that abortion is prohibited for a Jew, just as it is for a gentile.  The poskim that we have brought until this point who held that abortion is either permitted, or an issur derabbanan, or even an issur medoraytah but not retzichah, have understood this rule in a several ways.  One possibility is that Tosfos is only discussing this according to the opinion of Rabbi Yishmael who holds that abortion is prohibited for a non-Jew but not according to the Chachamim (this being the explanation of the Toras Chessed here, Achiezer here, Tzitz Eliezer here and see our previous discussions).  Another possibility is that the rule of Lekah Midam is a rabbinic rule, which forces the rabbis to decree that it should be prohibited (this being the assumption of the Chofetz Chaim here, the Ben Ish Chai here, the Beit Yehuda here, and others see all our previous discussions).  A third possibility was that as long as we can find another Torah prohibition that forbids a Jew from performing an abortion, then the rule would not be violated, even if it is not the prohibition of murder (this being the assumption of the Chavos Yair here and others, again, see our previous blog posts). It was also suggested that the conclusion of Tosfos is that this is an exception to the rule (see Rav Palagi in our previous post here).
All of the above suggestions allowed for a way to answer the famous setirah in Tosfos.  Either Tosfos is consistent in his opinion that abortions are permitted.  Or you can say that although they are permitted, they are not murder, and thus when Tosfos used the language “muttar” he meant that it was not murder.
However, the poskim who claim that abortion is murder, present the following argument (See RMF here for one example).  The principle of Lekah Mid’am is that it does not make sense for the Torah to prohibit a gentile from doing something that it permits to a Jew.  Therefore it follows that the severity of the prohibition must also be the same.  Just as it makes no sense to claim that a Jew should be allowed to do something that is prohibited for a gentile, it also makes no sense to claim that something that is murder for a gentile should not be murder for a Jew.  Therefore, they learn from the rule of Lekah mid’am which Tosfos applies to abortions that abortion must be retzichah for a Jew as well as for a gentile.
The obvious difficulty with this approach to tosfos is how to deal with the glaring contradiction to his previous language stating that abortion is “muttar” (permitted).  One claim that has been made by these poskim is that he didn’t mean to say that it is muttar, only that one is not liable for capital punishment.  This is because even those who hold that abortion is murder, agree that there can be no capital punishment, either because it is unknown that the fetus is healthy enough to live (hatra’at safek), or for some other reason. However, it is one thing to state that he meant that in terms of retzichah (murder) it is muttar, but still may be a lesser prohibition.  But it is quite another to claim that Tosfos used the language “muttar” to describe something that the Torah considers murder! (It is worthwhile to see the comments of the Tzitz Eliezer here)
In fact, many of the previous poskim that we have been discussing who hold that abortion is not murder also explain that Tosfos doesn’t really mean “permitted” because it is still prohibited because of one of the many reasons which we have discussed (Rav Y Emden for example explains Tosfos language this way, see previous posts for the exact reference).  However, if one holds that abortion is not murder at all, but it is prohibited for some other reason, I can understand that Tosfos may use language that might be a little "off".  But if one holds that abortion is murder, the to claim that Tosfos could use the language muttar and still hold it is murder is a step that seems to be quite a leap.
One of the most famous poskim who held that it was Retzichah was R’ Moshe Feinstein. Because of this incredible difficulty with Tosfos, he goes so far as to claim that the language in Tosfos is a misprint, and he meant to write “pattur” (not liable for punishment) as opposed to muttar (see here).  While this approach solves the conundrum, it is unbelievable to suggest that the language that was the subject of thousands of pages of discussion for hundreds of years should suddenly be so easily fixable by claiming that it was all just a typo!  If not for the incredible stature, scholarship, and reputation of HaRav Feinstein ZT’l, which is deservedly unquestioned in Halachic circles, I don’t think anyone would have taken such a suggestion seriously. (It is worthwhile to see the famous comments of the Tzitz Eliezer regarding HaRav Moshe Feinstein’s claim here).
The second major issue is the subject of the opinion of the Rambam.  It is worthwhile to review our previous discussion of the Rambam here, and how the poskim who hold that abortion is not retzichah deal with the Rambam’s opinion. I will not go over it at length now, but I strongly recommend that you review our discussion from the previous post.  The question of course, is how does one interpret the fact that the Rambam introduces the concept of rodef (pursuer) in order to justify killing the fetus when a mother’s life is threatened by the process of labor and delivery.  We already reviewed the other opinions, but the advocates of the abortion is murder position have a simpler answer.  They claim simply that this is proof that the Rambam held that abortion is murder, and therefore the only possible reason why one would be allowed to commit murder would be to apply the principle of rodef.
The obvious problem with this approach is the next line in the Rambam. If he truly was applying the principle of Rodef as claimed by these poskim, then why does this principle no longer apply once the head is delivered, clearly the baby is still a rodef? What changed?
Probably the most famous explanation of the Rambam that would be consistent with those poskim who hold that abortion is murder would be the explanation of Rav Chaim Brisker ZTL (RCB) in his sefer Rav Chaim al HaRambam Hilchot Retzichah 1:9 (I apologize but I could not find it online to give a link to it).  RCB establishes, in classic brisker fashion (this explanation of RCB is often given as a classic example of the “Brisker method” at its best), that are two types of rodefs.  The first is a complete rodef (“rodef gamur”) and the second is an incomplete rodef (“rodef she’eyno gamur”).  There are also two reasons why one should kill the rodef, one is to save the nirdaf (the one being pursued), and the other is because the rodef himself is liable to death for his act of pursuing.  A rodef gamur has both reasons apply to him; this refers to the classic example of one person chasing another with a weapon.  There is both an obligation to save the nirdaf, and a guilty rodef.  Therefore one can kill the rodef, as one cannot say why should this person be more deserving of death than the other (eyn dochin nefesh mipnei nefesh), because the rodef is liable for death, therefore his life is more expendable.
However, in the case of an incomplete rodef, such as the fetus who is not intending to kill anyone, the only reason to kill the rodef is to save the nirdaf (the mother in this case). Therefore, prior to the delivery of the head, we can kill the rodef because we have in front of us two souls, one of the fetus which is an incomplete soul, and one of the mother which is complete, therefore her soul takes precedence.  But once the head is delivered, we have two equal souls, and therefore we must apply the rule of eyn dochin nefesh mipnei nefesh, as the fetus is only an incomplete rodef.
The explanation of RCB would allow us to still consider the prohibition of murder for the fetus, but still allow killing the fetus to save the mother, and give us an explanation of the Rambam.  The main problem is that RCB is only referring to a fetus which is “ne’ekar letzeit” (in labor) which most poskim already agreed is considered a separate being from the mother.  This doesn’t at all prove what the Rambam would hold regarding abortion prior to the onset of labor, which is the question we are dealing with.  There are other issues with RCB as well, but this is not the place for such a lengthy discussion (see Seridei Eish for one example).
RMF has another explanation for the Rambam as well, see here for the details,
When one analyzes the sources that hold that abortion is indeed an issur de'oraytah, one finds that these two proofs from tosfos and the Rambam play a central role in their argument.  In the next few posts I will discuss several of the poskim who are generally quoted as supporting the view that abortion is indeed murder, and we will analyze each one to see if indeed this is their opinion.

Sunday, February 20, 2011

Moral and Ethical Arguments

This post will take us into a new territory.  Anyone following this blog until now, would see that it is obviously unclear to the poskim exactly why, if at all, abortions are prohibited.  Since the prohibition is not obvious, many poskim take a different path when discussing this unusual topic. This path is full of moral and ethical reasoning, that may or may not resonate with your sensitivities, but certainly reflects the general desire of the poskim to legislate halacha according to what they saw as the values encouraged by the Torah.  So if they weren’t able to find a clear source to explain why an abortion actually us prohibited, they found no shortage of reasons for why it should be prohibited.

Recall, that in the end of this post here, we suggested five possible reasons why there may have been a rabbinic decree prohibiting abortion.  Reason #  4 was that the Rabbis decreed against abortion because of some ethical or moral reason that they felt it was necessary to prohibit.  Today we will describe some of those reasons.
Allow me to digress for just a moment with a short introduction.  The distinction and apparent occasional conflict between ethics and halacha is the essential dilemma topic that gave birth (pun not intended) to this blog. How to reconcile or resolve these conflicts as it pertains specifically to medical halacha is what I have set out to explore, and I hope that with every post we come closer to a coherent and clear approach that will help all of us in our quest to live both ethical and halachic lives.  When the Torah teaches us that something is prohibited which we all clearly understand to be unethical, we have no problem or conflict.  So if the Torah tells us “do not murder” that doesn’t engender any difficulties in our ethical mindset.  If the Torah tells us something that seems to be unethical, then that of course leads us to search and find ways to deal with this problem.  That is what we did with the “treating a goy on Shabbos” series. 
But what should one do if the Torah seems to not prohibit something that you believe should be prohibited?  That is the dilemma that many poskim have with the abortion issue, and this is what we are going to deal with today.  Once we have explicated numerous opinions regarding the origins of the abortion prohibition, we will now enter the world of the halachic authorites who have concluded one of two things.  Either they could not find a true prohibition, but they concluded that it should not be done because it is unethical or wrong, despite the fact that it may technically be permitted.  Or, they concluded that it actually was prohibited by the Rabbis due to an ethical or moral problem with the act of terminating a pregnancy.
One more thing, it would be absolutely impossible for me to bring every halachic authority in history who has railed against abortions over the centuries. There is no question at all that the trend of halachic authorities is to believe that abortions are “bad things” and that the Torah does not look upon them positively. The list of such authorities is very long. However, I will still try my best to bring the primary moral issues that these authorities have raised, and bring some of the primary sources for each assertion.  I will also try to bring some sources who claimed that this is a reason why it is a specific rabbinic decree, and others who simply claimed that therefore it is a bad thing to do, but not specifically a violation of an issur derabbanan (rabbinic decree).
After this post, we can finally move on to the most stringent poskim, those who claimed that abortion is prohibited Me’doraytah, due to the issur of murder.  Since this is a blog, and not a scholarly article, I hope you will forgive me if I also diverge a little by bringing some contemporary statements and articles regarding this topic, and I may take my liberty and make some critical comments regarding what I believe to be serious errors or misrepresentations. We can then start discussing some of the halachic differences between the various stages of pregnancy, and finally, we will have established a solid framework so that we can proceed with our “rationalist” analysis of this topic.
1)      Permitting abortions would encourage promiscuity (Chavos Yair 31)
2)      Abortion would be a negation of the mitzvah of P’ru U’rvu (the obligation to procreate) (Mishpetei Uziel here)
3)      An abortion will prevent the potential of a future life (Mishpetei Uziel here
4)      By terminating a pregnancy, one prevents a future soul from doing mitzvos (Ohel Moshe by Rav Moshe Zweig Chelek 3 page 49)
5)      Abortions are considered morally wrong by other religions, and thus we should also take a moral stand (Ohel Moshe, see above)
By no means have I quoted everyone that has had something to say on this matter.  I only gave a source for each assertion, but as you can imagine, much ink has been spilled on this issue, and numerous others have said similar ideas.
Many of these poskim held that there was no specific prohibition against abortion, although they determined that it was not a proper thing to do because of one of the above reasons (for one example, see Sefer Emunas Shmuel here  who calls it a “ketzas” issur derabbanan, and the Tzitz eliezer interprets his words to mean that there isn’t really any issur at all, see here) while others determined that for one or more of the above reasons, it was prohibited by the chachamim (see for example the Shut MahaRash Engel 5:9 – I apologize that I could not find it on so I couldn’t provide a link).
This completes our discussion of the possible reasons why an abortion may be considered an issur derabbanan. It is very important to emphasize, that according to the poskim that hold that abortions are an issur derabbanan, that they would also be more lenient regarding the situations in which abortions may be allowed. So for example, the Rov Pe'alim here (Rav Yosef Chaim of Bahgdad - also known as the "Ben Ish Chai") suggested that an unmarried woman who was suffering from shame and embarassment might be allowed to abort.  Rav Yaakov Emden allowed only a married woman who become pregnant from an adulterous affair (see our previous post here). The Beit Yehuda (see our previous post here) was willing to allow a nursing woman to abort out of concern for her nursing child.

All of the above authorities agree that when it is being done out of concern for the mother's well being it is permitted, only the exact degree of suffering of the mother necessary to permit abortions is somehwat a matter of dispute.  It is a question of degree, not of principle.

Recall, that even according to the authorities who held that the orgins of the abortion prohibition were mi'doraytah (see our post here for details) it was still permitted to abort in many circumstances because the particular prohibition did not apply.

However,  the story is not yet over.  A major group of poskim, have claimed that the abortion prohibition is actually a Torah prohibition, and the source of teh prohibition is the prohibition of murder.  This may shock those of you that have been following this blog, but let us give these poskim a chance, and sit back and listen so we can have a full treatment of this issue. Stay tuned for the next post!

Wednesday, February 16, 2011

Akin To Murder, But Not Murder, The Beit Yehuda and the Chofetz Chaim

So far we have described two of the opinions that hold that the prohibition of abortion is rabbinic in origin. We described the opinion of Rav Chaim Palagi and the Mizrachi who hold that the principle of Lak’ah Mid’am is rabbinic in origin, and therefore they decreed that abortion should be prohibited for a Jew just as it is for a gentile.  We also described the opinion of Rav Yaakov Emden, who held that the Rabbis prohibited abortion because it is similar to HZL, like wasting seed.
If you recall, in this post here we proposed five possible explanations for the rabbinic decree against abortion (assuming that there was ever such a decree of course).  Rav Palagi and Rav Yaakov Emden are consistent with reasons # 1 and 5, respectively.  Now I would like to focus on those opinions that held that it was due to reason # 3.  Just to remind you, reason # 3 proposed that the Rabbis may have decreed that abortions are prohibited because of its similarity to murder.  Although it is not technically murder according to the Torah, the Rabbis nonetheless felt that it was similar enough and therefore should be banned.
One of the poskim who takes this approach is the Beit Yehuda by Rav Yehuda Ayash ZT’L (RYA) in Shut Beit Yehuda Even HaEzer:14, which can be found hereRav Ayash was Chief Rabbi of Algeria in the mid-1700’s, and moved eventually to Yerushalayim. His responsa are quoted with reverence throughout both the Sephardic and Ashkenazic world, and he was also the one extensively quoted by Rav Palagi who we discussed before here.
You may recall from our discussion of Rav Palagi that RYA was asked regarding whether a women who is both pregnant and nursing at the same time, and she fears that she may not have the strength to do both , if she may take medication to cause an abortion.  RYA permits women to do this.  His reasoning is based first on proofs from the Rambam, Rashi and Tosfos that there is no prohibition of murder by a fetus.  He then writes that although it is not murder, it is still generally prohibited due to rabbinic decree.  This he proves from Tosfos and the Lek’ah mid’am rule, which he understood to be of rabbinic origin, just like Rav Palagi did.
However, he differs slightly from Rav Palagi in his explanation of the reason for this rabbinic decree.  During his discussion, he contrasts the laws of abortion with the laws of birth control.  He states that although there is no prohibition against a woman taking a medicine to prevent her from getting pregnant (this will come up again in a future thread when we discuss birth control), she is nonetheless prohibited from taking a medicine that would cause an abortion.  In his words, the reason for the difference is as follows (my translation):
“However, here in our case [by abortion as opposed to birth control] it is different, because the reason for this prohibition is because it is similar to murder and therefore if one drinks a potion that causes an abortion, it is nonetheless prohibited by rabbinic decree…”
He goes on to say that since it is only a derabbanan, it would be permitted in cases of need such as the nursing mother.
So according to RYA, the abortion prohibition is of rabbinic origin, and the decree was declared because of its’ similarity to murder.
Another great posek who seems to have held that the reason for the rabbinic decree against abortion was because of its similarity to murder is the great Chofetz Chaim Rav YM Kagan ZT’L (RYMK). His words are brought here in the sefer Mishpetei Uziel.  RYMK presents an interesting Halachic question.  What would the Halacha be if a man married his brother’s widow in the process of yibum, and then a short while afterward he finds out that she was pregnant?  (The problem is of course, that he is generally prohibited from marrying his brother’s wife, unless he dies childless, in which case he can marry her through the process of yibum.  Once it is found out that she is pregnant, he no longer may remain married to her, and their cohabitation until the pregnancy was discovered was in sin) The Halacha teaches us that he must divorce her and then bring a sacrifice for inadvertently transgressing the prohibition of cohabitation with one’s brother’s wife. 
So RYMK asks (my translation), “According to Tosfos that a Jew is only prohibited from performing an abortion me’derabbanan (clearly RYMK understood that lek’ah midam is only a rabbinic reason for the prohibition), why don’t we actively cause the abortion of this pregnancy in order to save this man from transgressing the sin of cohabiting with his brother’s wife? …. (he answers) since the fetus is considered like a tiny bit of a soul (“begeder nefesh kal dehu”), therefore the yavam (the surviving brother) is not allowed to save himself from sin by destroying the soul of the fetus”
It is somewhat difficult to understand the intention of RYMK.  The notion that it is only a derabbanan is predicated on the fact that the fetus is not a nefesh (soul), as we have seen many times, so why can’t he save himself from sin as RYMK asked? I would like to suggest that RYMK meant as follows.  Tosfos holds that it is a derabbanan , as RYMK himself pointed out. Thus, technically, the yavam should be able to save himself from sin by causing an abortion. However, the reason for the rabbinic decree was because the chachamim looked upon the fetus as if he was a tiny soul (nefesh kal dehu).  Since this is the reason for the decree, the chachamim, bshev v’al taaseh, decreed that this cannot be done even to save a yavam from sin.  This is because we know that the chachamim have the power to tell us not to do a mitzvah (b'shev v’al taaseh), as long as they don’t tell us to transgress a prohibition (b’kum va’aseh).  If the chachamim looked upon this as if it was similar to murder, which is such a severe sin, we can understand why they would make such a decree on the yavam.
If my analysis is correct, then RYMK also would be counted among the opinions of those who held that the prohibition is a derabbanan, and that the reason for the decree was because it is similar to murder.
To summarize today’s post, we have identified reason # 11 for the prohibition of abortion, the opinion of the Beit Yehuda and the Chofetz Chaim (according to his interpretation of Tosfos) that it was a rabbinic decree and the reason for this decree was because it is akin to murder.

Tuesday, February 15, 2011

The Waste Issue Revisited, and Rav Yaakov Emden

In a previous post, we described the opinion of the Chavos Yair that the prohibition of abortion is due to the issur of hotza’at zerah levatalah (HZL), or “wasting seed”.  We also hinted at a fundamental issue with the prohibition of HZL that is heavily discussed by the acharonim that we will further elaborate today, in order to better understand the famous opinion of Rav Yaakov Emden.  This will be the next deRabbanan possibility on our growing list of proposed reasons for the abortion prohibition.
The origins of the HZL prohibition (the HZLP) are shrouded in mystery, and in this way it is similar to the abortion issue.  I hope one day to devote an entire blog thread to this topic, but that will have to wait for another day.  For now, just in order to develop our understanding of the abortion prohibition, let me describe one of the primary dilemmas associated with the HZLP.
The HZLP also has no specific pasuk (verse) in the Torah that prohibits masturbation.  The closest thing in the Torah is the story of Onan, who in Bereishit 38 was killed by God because he “spilled his seed upon the ground”, rather than father children with Tamar.  However, from the Torah itself it is very unclear exactly why God killed Onan, was it because of his selfishness at not wanting to carry on his brother’s name? Was it the fact that he was trying to not fulfill the mitzvah of having children? Or was it because masturbation is liable for the death penalty by God?
Rabbi Yochanan, quoted in Masseches Nidah 13a proves from the story of Onan that one who masturbates is liable for death from God (as opposed to punishment by an earthly court).  So according to Rabbi Yochanan, it is the act of masturbation that caused the death of Onan, not one of the other concerns mentioned above.
Now the poskim discuss the nature of this issue, what exactly is involved in this sin?  Is it the act of masturbation – meaning the act of arousing oneself (“girui yetzer harah” in the parlance of the poskim) and doing this act? Or is there some problem with the “waste” of spilling seed upon the ground?  The conceptual difference between these two approaches is great.  If one looks at it as a problem with the act, then it is by nature a sin of misplaced sexuality, similar to inappropriate sexual relations.  However, if one looks at the problem from the perspective of “wasting seed”, then it is primarily a sin of waste and purposeless destruction. 
There is much to be said on this topic itself, bli neder I will cover it sometime in the future in detail.  However, let us concentrate on our problem here, the abortion prohibition.
The Chavos Yair, when he stated that the sin of abortion is due to the HZLP, he clearly understood the sin as one of waste.  Therefore if it applies to semen, how much more so should it apply to a fetus!  This is a logical conclusion of one takes this approach.  However, Rav Y Emden has a different take on the issue, which I am about to explain.
There are two more important points I must make before we analyze Rav Y Emden’s teshuva. 
We also alluded in the same post to a fundamental argument regarding the very nature of the HZLP.  We mentioned that there is a fundamental debate amongst the rishonim whether it is a Torah prohibition, or a rabbinic decree.  Once again, this is not the place for an extensive review of the rishonim on the topic, but keep in mind that such a debate exists. Recall also that the pasuk never explicitly prohibits HZL, which is part of the reason why this debate exists.
Lastly, I must mention the incredible amount of extra-halachic, kabbalistic literature on the severity of the sin of HZL.  The Zohar in numerous places, and the writings of the Arizal, and the Chassidic writings abound with an incredible amount of references regarding HZL and the harm that it does to the soul.  This literature had a huge influence on the thinking of the later poskim when they discussed this matter, and even the most “rationalist” non-mystical halachic authorities often quote the Zohar when discussing HZL.
Now we can go on to talk about Rav Y. Emden’s opinion.  Rav Emden’s opinion is often mentioned when talks or articles are presented on the subject of abortions in Jewish law.  He is often quoted for his bold assertion that in cases of adultery, a mamzer (bastard) may be aborted.  In Sheelas Yaavetz Teshuvah 43, Rav Emden was asked the same question that was posed to the Chavos Yair regarding a married woman who got pregnant from an adulterous affair, and she asked the Rav if she is allowed to abort the fetus.  Rav Emden begins with an analysis of the issue in a very different way than the Chavos Yair.  He takes the basic approach that technically, this woman is liable for the death penalty.  Therefore, as the fetus is part of the mother, than as long as she is still pregnant, one may abort the fetus as the fetus halachically is also liable for death.  There are numerous issues with this opinion that I will not go into here that the later poskim have dealt with, and this is the famous part of the Teshuvah.
As happens often, the really interesting part of the Teshuva is the less famous part, and that is the second half of the teshuva where he discusses what prohibitions are involved in aborting a fetus that is not chayav missah (liable for the death penalty).  What if an unmarried woman were to desire an abortion?  In this type of case, R’ Emden mentions the reasoning of the Chavos yair, that it should be prohibited due to HZL.  However, Rav Emden wipes this aside, by claiming as follows (my own translation):
“regarding that which the Rav (the Chavos Yair) busied himself in his responsa as he tried to explain why it should be prohibited by deriving it from the prohibition of HZL, one can refute this claim as one can say that this is not the reason for this sin (i.e. the reason for the sin is not because of “wasted seed”)! Rather, the reason for the sin is because he is pouring his energy into the “refuse heap” (me’areh le’ashpah) and he is adding to the powers of contamination and weakening the forces of the heavenly hosts, as we know the reasons from the sages of truth (chachmei emes – a reference to the kabbalistic scholars), against our will, we have no choice but to look to their guidance in this issue (because there is no clear Torah source for the nature of the prohibition), you should know, that there are three [categories of] women that are allowed to use a mokh for intercourse (barrier contraception), and there is no prohibition to marry them even though one is wasting his seed! (for they cannot get pregnant), therefore certainly (“vadai”) it is not considered HZL unless he is “pouring his energy into the refuse heap” and for the reason described above, even though his seed [is being emitted] and cannot produce a child [he is still not committing the sin of HZL]. Therefore, by a fetus, since he is not yet a child, and it is even a doubt if he will ever become a child, our doubt regarding its permissibility remains (because we have rejected the reason of the Chavos Yair who prohibited the abortion).and even by a “kosher” (non-mamzer) child there is reason to be lenient if there is great need, as long as she is not yet in labor, Even if there is no risk to the mother’s life, even if only to save her from great discomfort.
RYE continues to emphasize that it is still prohibited to do for no reason because of waste, but letzorekh mitzvah (to fulfill a mitzvah) or for great discomfort he is willing to consider permitting an abortion.
The words of RYE leave us wondering a bit. On the one hand, he establishes that the prohibition of HZL has nothing to do with “wasting seed” but rather it is because of all the terrible things one is doing when he masturbates.  This is clearly an endorsement of the point of view that the problem with masturbation is not because of waste, but rather it is because of the sin of misplaced sexuality.  Witness his proof from the fact that one may have intercourse with his wife, even if she is using contraception.  But then he does a bit of an about-face!  He tells us that HZL does not apply to our scenario of abortion, but then tells us that one is still not allowed to do it unless there is great need, because of the problem of HZL!  What is going on? Is it or isn’t it HZL?
I believe that the answer is quite simple.  RYE held that the HZLP has two components.  The first is the component of misplaced sexuality.  This is the primary reason for the prohibition, and this he held was a Torah prohibition, the origin being the story of Onan.  The primary focus of the kabbalists as well were on this issue.  However, there is also an issur de’rabbanan of HZL that is related to the problem of waste as well.  This is why he is willing to allow a transgression of the issur derabbanan in times of tzorekh gadol (great need) or letzorekh mitzvah (the needs of fulfilling a mitzvah).  This would make sense in the context of an issur derabbanan. (Most likely, the logic behind this is that if it is for the mother’s benefit, it would no longer be considered a waste).
This is the way I understand the opinion of RYE.  I must add here, that even if you disagree with my assertion that RYE held that HZL had a De’oraytah aspect and a de’rabbanan aspect, one must still acknowledge as follows:
1)      That RYE held that had there been an aspect of misplaced sexuality sin involved in abortions, he would have prohibited abortions even when it is to benefit the great need of the mother. (Recall that he needed to dispel that reason before he was able to proceed with his claim that abortions can be allowed for such reasons)
2)      that RYE still held that abortions should be prohibited because you are destroying or wasting the fetus, which he still derives from the HZL prohibition (HZLP)
3)      that even though they are prohibited due to the “waste” aspect of HZL, he is willing to permit an abortion for the benefit of the mother in cases of need
I believe that my understanding is correct, but I am willing to hear other explanations.  For now, we can finish this post with opinion # 11, that of the RYE. In summary, here it is:
11. According to RYE, abortions are prohibited because of waste, which is a rabbinic aspect of the HZL prohibition; therefore they can be performed in circumstances of great need. If the child is illegitimate from a relationship that would incur the death penalty, the RYE would allow it outright.

Monday, February 14, 2011

R' Palagi and R' Eliyahu Mizrachi - Abortion as a Rabbinic Decree

Until this point, we have been searching for mekorot (sources) that explained that abortions are prohibited due to some issur (prohibition) in the Torah.  We will now embark on a new journey, and find our way through the sources that held that no Torah prohibition applies, but rather it is prohibited due to a rabbinic decree.  Many poskim throughout the centuries assumed that it is an issur derabbanan, and I chose to start our discussion with a famous teshuva by HaRav Chaim Palagi.
There are two teshuvos relevant to our topic, primarily in Shut Chaim Ve’Shalom 1:40, but 1:38 is also relevant (he skips 39 for some reason).  They are very lengthy, but I will be summarizing the points that are most relevant to our discussion.  There is a Halacha found in the Gemara Ketubot 60a-b which prohibits a woman who is pregnant or nursing from marrying another man until her child is 24 months old.  The reasoning is that she may become pregnant, in which case she would stop nursing (which was assumed to be the case in Talmudic times), and we are afraid that the stepfather may not properly care for the young stepchild.
HaRav Palagi was asked about a very tragic case.  An unmarried young woman became pregnant, and was ashamed about her pregnancy.  She took some medicine that caused her to deliver her baby early; the baby lived for two days and died.  This is not the place to go into the details of the story, but I will just touch on the question that was posed to Harav Palagi.  This young woman wished to marry, and some rabbis wanted to prohibit her from marrying until two years after the birth.  The logic was that although the reason for the rabbinic decree does not apply if the child is no longer alive, it doesn’t make sense that she should be “rewarded” with being allowed to marry after doing such a terrible deed.
Rav Palagi has a very long analysis, which is interesting and detailed, but I want to focus on his discussion of the abortion prohibition specifically.  Among many of his arguments, he traces the origins of the prohibition of abortion.  He is trying to determine the true halachic severity of what she did, so he emphatically insists that there is no prohibition at all of murder, but it is clearly an issur derabbanan.  He brings the opinion of the Chavos Yair that it may be assur because of hotza’at zerah (wasting seed) but he brushes off that claim and writes as follows (my translation)
“Nonetheless (despite the Chavos Yair’s contention)this prohibition (of abortion) is not at all prohibited but only due to a rabbinic decree, and it is not included in the prohibition of murder (“sheficat damim”), as it is written by the Re’em (rav Eliyahu Mizrachi) and also the Rav Beit Yehuda, and Rashi and Tosfot and the Rambam and the Re’em that there is no Torah prohibition due to murder but rather the prohibition is of rabbinic origin, and therefore, he (the Beit Yehuda) writes that one may, out of suspicion for the health of  a young nursing infant, that if a woman who is nursing should become pregnant that she may abort the fetus in order to preserve the health of the child….”
Discussing the same woman in Teshuva 1:38 he contrasts this woman with one whom God forbid kills a live child and writes that her sin is not nearly as severe, because; “Then her sin is not so severe that we should consider her guilty of murder”
There are several points that jump right out of the page as we read these words of Rav Palagi.  It is fascinating that the very same Tosfos and Rambam that are used as sources for those who want to claim that abortion is murder (we will get to those opinions later) are being used as proof that it is only a derabbanan!  Furthermore, he takes it so far as to permit the abortion of one child, in order to save another (one who is nursing)! There are many points worth discussing here, but I would like to stay on target.
Rav Palagi brought the Re’em as a key source, and it is important for us to take a look at his words in the Mizrachi Al HaTorah, Parshas Mishpatim 21:22.
The Mizrachi brings the Mechilta which is the key source for those poskim who hold that abortion is not considered murder, but is only due to rabbinic decree.  It is a bit lengthy, so I will summarize the mechilta and the Mizrachi for you, but you are of course welcome to check it out yourselves here.
The mekhilta explains the pasuk “veLo Yihyeh asson (and there will not be a fatality)” that it is referring to the woman and not the fetus.  This must be because the mekhilta explains, the next pasuk reads “ve’IM Asson yihyeh, venassata nefesh takhas nafesh (and if there is a fatality, the death penalty would be incurred)”.  And a fetus is not a nefesh; therefore the pasuk does not apply to the fetus.
The Mizrachi then continues to prove that murder does not apply to a fetus from the Rambam in Hilchot Rotzeach Chapter 2, who writes that murder only applies to a one day old baby, but not before.  He then brings the famous Gemara in Sanhedrin in which Rabbi Yishmael states that a gentile is liable for killing a fetus, from which he proves that the prohibition would not apply to a Jew.  He then asks Tosfos’ question, if so how could something be permitted for a Jew while it is prohibited for a gentile, to which he gives two answers.
1)      Maybe here it is different because the Torah explicitly is more stringent upon the gentile
2)      As Tosfos says that although a Jew is “pattur” (not liable) it is still not prohibited
Rav Palagi clearly understood from the Mizrachi that this is a case of “pattur aval assur” (prohibited but not liable) which is usually referring to a rabbinic prohibition.  Rav Palagi understood that the Mizrachi proved this from Tosfos and the Rambam, and the Mekhilta was a great support for these shitos. Rav Palagi also brings Rashi as well, and he is almost certainly referring to something written by the Peirush Nachalat Yaakov on the Mizrachi who quotes the Rashi in Sanhedrin 57 (explaining the statement of Rabbi Yishmael that a gentile is liable for murder on a fetus) that states that only for a Gentile is it permitted, but for a Jew, only once it is born does the prohibition of murder apply.
So we have now embarked on an entirely new path.  The Poskim who hold that it is a rabbinic decree.
The next obvious question is exactly what the rabbinic decree is?  Before we continue this line of questioning, I would like to suggest several possible approaches, and we will see where the poskim fall on this spectrum of possibilities as we analyze each one.
1)      It may be that the decree is due to the rule of Lekah Mid’am.  That is, that these poskim understood that the rule of lekah Mid’am is a rabbinic rule which dictates that although the Torah may allow for a leniency for a Jew in some rare cases, the Rabbanan felt that this discrepancy should not be allowed and they therefore decreed that a Jew may not do it.  Based on the language of the Mizrachi and Rav Palagi, it is almost certain that they took this approach.  This is in fact how they learned “pshat” (the explanation) of Tosfos!  In other words, they learned that Tosfos holds that it is truly muttar (permitted) as far as the Torah was concerned, but because of Lekah Mid’am a Jew is prohibited
2)      The chachamim may have prohibited it because it is similar to murder
3)      Another possibility is that one of the Torah prohibitions that have been suggested before may not apply to abortions technically, but their rabbinic counterpart decrees may actually apply.  For example, one may hold that a one cannot actually steal from a fetus Me’d’oraysah (from a strictly Torah perspective), but maybe Me’d’Rabbanan a fetus can own things and therefore one can steal from him/her.
4)      Another possible explanation is that the rabbis decreed that it is assur for some other reason, such as for the public benefit, or to clamp down on promiscuity.
5)      If one holds that the entire prohibition of Hotza’at Zerah (wasting seed) is a de’rabbanan, than that may be the origin of this prohibition.
We will entertain all of these possibilities in the discussion that we will continue in our blog.
Now that we have embarked on this new path, we can add another Shita to our ever-growing list.
Opinion # 10:  According to the Mizrachi and Rav Chaim Palagi and their interpretation of the Rishonim,  the Chachamim declared that a Jew is prohibited from performing an abortion because a gentile is prohibited, and it would be inappropriate for a Jew to be allowed to do something that is prohibited to a gentile.  They explicitly and vehemently reject the possibility that it has anything to do with Shefichat damim (murder).