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).