I am going to interrupt our series of reasons for the abortion “prohibition” to deal with a fundamental issue that many of the poskim have tried to resolve. That issue is the question whether or not abortion is a Torah prohibition or a rabbinic decree. Much ink has been spilled over this question, but the readers of this blog, at least those that have been paying attention until now, will know that the question is a little less important than it seems on the surface. You will understand what I mean in a few minutes.
One of the most fundamental distinctions in Halacha is the distinction between a rabbinic decree (Issur Derabbanan) vs. a Torah prohibition (Issur de’oraytah). Now that we have made our way through numerous potential reasons that have been proposed as to the origins of the prohibition against abortion, we have a unique perspective on this issue that is sometimes overlooked when this question is discussed.
We have just described at least 8 possible reasons for the abortion prohibition, with one more opinion that permits abortion. All of the 8 reasons have origins in the Torah (with the possible exception of the "wasting seed” issue - which is a matter of contention, as we mentioned in our last post here). However, as we have noted, many of these Torah prohibitions have all sorts of specifications that would render the prohibition null and void in certain circumstances. Without going into all the details, I will give one example.
If abortion is due to chavalah (wounding) of the mother, then in any circumstance in which the mother would be allowed to wound herself, she would also be allowed to obtain an abortion. So for example, if it is for her benefit, it would be allowed. The Halacha allows for one to wound themselves if the purpose is to benefit themselves.
In a famous Teshuva on the topic of cosmetic surgery, HaRav Moshe Feinstein allowed a woman to undergo cosmetic surgery in order to improve her chances of finding a husband (Igrot Moshe Choshen Mishpat 2:66). Rav Moshe based his permission on the Rambam's opinion regarding the Issur of Chavalah (See Rambam Hilchot Chovel U'Mazzik 5:1). Rav Moshe interprets the Rambam that any chavalah which is done to benefit the person involved is not prohibited by the Torah prohibition of Chavala.
This is obviously not the place for an intensive discussion of the laws pertaining to cosmetic surgery, though that may make an interest topic for a future blog thread. However, my point is to demonstrate that depending on the particular Torah prohibition involved in abortions, you may come up with different types of scenarios where the abortion would be permitted. It would not be a stretch at all to claim, that those who define the prohibition as chavalah, would permit many abortions when the woman feels it is to her benefit. Even though chavalah is a Torah prohibition.
So I submit to the readers of this blog the following point to ponder. What matters here is not so much whether this is a de'oraysah or a de'rabbanan. Rather, what matters much more is which issur de'oraysah you apply!
Another very important point I need to make before I go on. There are many opinions that hold that the prohibition is a rabbinic decree, and has no direct origin in the Torah. This is not the place for a lengthy halachic discussion of when rabbinic decrees can be transgressed, and how they differ from Torah prohibitions. However, it is understood that one can be more lenient when confronted with extreme cases of need when violating a rabbinic decree than when violating a Torah prohibition.
But more importantly, we also need to analyze the proposed rabbinic decrees in the same way. What was the basis of the decree? What are its origins? Why was it declared? This is important is because depending on the purpose of the decree, the parameters regarding when it applies will be different.
I am going to use this blog post as a segue into a new territory. We are going to analyze the opinions that hold that the prohibition of abortion is a rabbinic decree, and not due to any Torah prohibition at all. As we have so far compiled 8 potential Torah prohibitions, but we will now move on to list several rabbinic possibilities. Next post I will begin our discussion of the rabbinic possibilities with a fascinating and tragic teshuva from the great Sephardi Rav of Izhmir Turkey HaRav Chaim Palagi ZT'L(1788-1868).
I know that some of you might be getting exhausted by all of this detail. I am truly sorry about that. But when we are done with this analysis, I promise that you will be very satisfied with the outcome. You will fully understand why this detailed analysis was necessary. I promise.
One of the most fundamental distinctions in Halacha is the distinction between a rabbinic decree (Issur Derabbanan) vs. a Torah prohibition (Issur de’oraytah). Now that we have made our way through numerous potential reasons that have been proposed as to the origins of the prohibition against abortion, we have a unique perspective on this issue that is sometimes overlooked when this question is discussed.
We have just described at least 8 possible reasons for the abortion prohibition, with one more opinion that permits abortion. All of the 8 reasons have origins in the Torah (with the possible exception of the "wasting seed” issue - which is a matter of contention, as we mentioned in our last post here). However, as we have noted, many of these Torah prohibitions have all sorts of specifications that would render the prohibition null and void in certain circumstances. Without going into all the details, I will give one example.
If abortion is due to chavalah (wounding) of the mother, then in any circumstance in which the mother would be allowed to wound herself, she would also be allowed to obtain an abortion. So for example, if it is for her benefit, it would be allowed. The Halacha allows for one to wound themselves if the purpose is to benefit themselves.
In a famous Teshuva on the topic of cosmetic surgery, HaRav Moshe Feinstein allowed a woman to undergo cosmetic surgery in order to improve her chances of finding a husband (Igrot Moshe Choshen Mishpat 2:66). Rav Moshe based his permission on the Rambam's opinion regarding the Issur of Chavalah (See Rambam Hilchot Chovel U'Mazzik 5:1). Rav Moshe interprets the Rambam that any chavalah which is done to benefit the person involved is not prohibited by the Torah prohibition of Chavala.
This is obviously not the place for an intensive discussion of the laws pertaining to cosmetic surgery, though that may make an interest topic for a future blog thread. However, my point is to demonstrate that depending on the particular Torah prohibition involved in abortions, you may come up with different types of scenarios where the abortion would be permitted. It would not be a stretch at all to claim, that those who define the prohibition as chavalah, would permit many abortions when the woman feels it is to her benefit. Even though chavalah is a Torah prohibition.
So I submit to the readers of this blog the following point to ponder. What matters here is not so much whether this is a de'oraysah or a de'rabbanan. Rather, what matters much more is which issur de'oraysah you apply!
Another very important point I need to make before I go on. There are many opinions that hold that the prohibition is a rabbinic decree, and has no direct origin in the Torah. This is not the place for a lengthy halachic discussion of when rabbinic decrees can be transgressed, and how they differ from Torah prohibitions. However, it is understood that one can be more lenient when confronted with extreme cases of need when violating a rabbinic decree than when violating a Torah prohibition.
But more importantly, we also need to analyze the proposed rabbinic decrees in the same way. What was the basis of the decree? What are its origins? Why was it declared? This is important is because depending on the purpose of the decree, the parameters regarding when it applies will be different.
I am going to use this blog post as a segue into a new territory. We are going to analyze the opinions that hold that the prohibition of abortion is a rabbinic decree, and not due to any Torah prohibition at all. As we have so far compiled 8 potential Torah prohibitions, but we will now move on to list several rabbinic possibilities. Next post I will begin our discussion of the rabbinic possibilities with a fascinating and tragic teshuva from the great Sephardi Rav of Izhmir Turkey HaRav Chaim Palagi ZT'L(1788-1868).
I know that some of you might be getting exhausted by all of this detail. I am truly sorry about that. But when we are done with this analysis, I promise that you will be very satisfied with the outcome. You will fully understand why this detailed analysis was necessary. I promise.
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