[Avodah] Abortion isn't Murder

[Micha Berger]

Just because the topic came up on Areivim a mere 2-1/2 months after the
last time it did here, I thouhgt I would just list the sources posted
here in the past which insist that abortion isn't murder.

Before I do so, I must acknowledge RMF's daas yachid in IM CM 2:69(b),
which argues it is murder.

Tosafos say abortion is mutar on Niddah 44b "eihu". This is usually
interpreted away: That either they are saying it isn't under the same
issur as for benei Noach, but still assur, or that they are speaking
only bemaom saqanah.

The Ran (Chullin 58a) says abotion is deRabbanan.

The Minchas Chinukh says that abortion for BN is punished with death
because it's a 7MBN and explcitly excludes it being because it's
retzichah mamsh. And that's why the Rosh says that a Yehudi may abort
a bas Noach's velad to save her life because it's dechuyah bemaqom
sakanah like any other issur.a

The Zohar Shemos 3b describes abortion as being a horrible destruction
of HQBH's handiwork, the same language it uses to describe shichvas
zera levatalah. The Chabos Ya'ir (teshuvah 31) also considers abortion
to be hota'as SZL.

The Maharit (1:97) concludes abortion is asur as a form of injury to
the mother.

The Mishtetei Uziel (CM 4:46, others cited 3:47) says it's like shefichas
damim only because the gemara likens all neglect of piryah verivyah to
shefichas damam. Leshitaso, abortion derives from piryah veriyah (an
asei)!

The Tzitz Eliezer, when he is choleiq with RMF (one of 7:48, 9:51:3,
13:102), opines that RMF's raayah chilul Shabbos doesn't prove anything,
since "challel alav Shabbos achas kedei sheyishmo Shabasos harbei"
applies to an ubar. This draws from the Ramban, Toras HaAdam (d"h
"ubeHalakhos Gedolos", R' Chavel ed. pg 29). He too concludes it's
hotza'as zera levatalah, and cites the Yaavetz in 1:43.

Although to be fair, RYE is speaking about aborting without 72 hours,
"morning after" in today's political parlance, to prevent the birth of a
mamzer, or a woman having to carry the product of her being raped. So the
TE is taking it further than one has to insist the Yaavetz intended.
(Although there is no reason to insist otherwise, either.) And in any
case, the TE is an acharon to cite in his own right.

RJHendell quoted RASoloveitchik who notes that the Rambam (Rotzeiach
1:9) says the ubar is "KErofeif achareha", snf it'd only in the case of
mishehotzi rosho that the Rambam says "ein dchon nefesh mipenei nefesh".
RAS understands the Rambam as saying the ubar isn't really a rodeif --
there is no pursuit of the mother, teva put the two in conflict. Which is
why the Rambam doesn't allow infanticide after crowning to save the
mother. But before that, the ubar isn't really a nefesh either, so it
being KErodeif is enough.

This is the shitah of ROY (Yabia Omer 4, EH 1).

RIAZ cited Eirukhin 7a, where the gemarah is discussing a mishnah that
says that BD kills a pregnant woman without waiting for the baby is born.
The gemara's asks that this is too obvious to even warrant a mishnah,
since a fetus is part of the mother. So it explains that I might have
had a hava amina that the father's stake would override.

In a similar vein was my citation this past may of Y-mi Qiddushin 13b,
where a shifchah can accepts a gett shichrur on behalf of her velad
because it's part of her. (An eved cannot accept a gett shichrur for
another.)

R' Eli Turkel (2011) simply listed mar'eh meqomos from Enecy Hilchatit
Refu'it by R' Dr Steinberg:
	Ramban (nidah 41a)
	Yad Ramah (Sanhedrin 57b)
	Radvaz (vol 2 #695)
	Drisha EH 13:4
	Sma CM 425:8,
	Sridei Esh  (vol 3:127)
    and many others
    see also Tosafot Sotah 26a

-Micha

-- 
Micha Berger             Zion will be redeemed through justice,
micha at aishdas.org        and her returnees, through righteousness.
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