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 here. Rav 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.