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.