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.
- Tosfos - abortion is Muttar
- Ran and Rosh - abortion is muttar as long as you are not putting the mother in physical danger by terminating the pregnancy
- 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
- 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.
- 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)
- 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.
- 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.
- Chavos Yair, due to the prohibition of wasting seed (which according to him is a torah prohibition)
- 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).
- 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.
- 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.
- Abortion is a rabbinic decree because permitting abortions would encourage promiscuity (Chavos Yair 31)
- 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)
- Abortion was a rabbinic decree because it will prevent the potential of a future life (Mishpetei Uziel here)
- 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)
- Abortions are considered morally wrong by other religions, and thus we should also take a moral stand (Ohel Moshe, see above)
- The opinion of Rav Moshe Feinstein that it is indeed prohibited due to murder
- The opinion of the Maharam Shick and Sdei Chemed that it is Avizrayhu of retzichah due to chatzi shiur
- 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
- 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
- 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)
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