[Avodah] Abortion isn't Murder

[Chana Luntz]

RZS writes:
>Please cite *any* source that distinguishes between harigas ubar and
>harigas ben noach.

How about we start with the Tanna who disagrees with Rabbi Yishmoel on
Sanhedrin 57b. Rabbi Yishmoel adds af haubarim, and quotes the pasuk
in Breishis of (9:6) "adam b'adam" as support for his position of adding
abortion into the matters that require the death penalty for a Ben Noach.
The gemora then asks, well how does the Tanna Kama, who does not list
ubarim, understand this pasuk, and explains that he understands it like
the Tanna of Beis Menashe understand it - namely that it is specifying
the death penalty being discussed as being chenek [strangulation].

Ie it would therefore seem that the Tanna Kama of the Braisa, the bar
plugta of Rabbi Yishmael, does not hold that abortion is prohibited to
Bnei Noach.

Now while the Rambam in Hilchot Melachim perek 9 halacha 4 poskens
like Rabbi Yishmael, as the Kesef Mishna there notes (the Kesef Mishna
explains that he does so, because he poskens that the form of judicial
killing required is sayif, the sword, and not chenek, strangulation -
a dispute that comes up elsewhere). Otherwise it is not exactly obvious
why one would do so, and it might perhaps be even argued that the Tanna
Kama, given the reference to Beis Menashe, might be considered a rabbim
against Rabbi Yishmoel's yachid.

And, as the Achiezer notes (Achiezer Chelek 3 siman 65 towards the end
of the siman) the simplest way to explain the Tosphos in Nida 44a-b and
the Chiddushei HaRan in the third perek of Chullin is that they posken
like the Tanna Kama and not Rabbi Yishmael.

And note that if you do posken like Rabbi Yishmael, you might have
something of a problem with the actions of Yehuda and Tamar. After all,
Tamar was three months pregnant at the time that Yehuda ordered her
killed. But after all, if there is a prohibition on killing foetuses,
then Yehuda would have been violating that prohibition twice over (for
Peretz and Zerach) in not waiting until she gave birth. And the same
would have to be said for Tamar. It is one thing to say that it is
better to that I, Tamar, be thrown into a fiery furnace than whiten
the face of my fellow [ie Yehuda] in public. It is another to say,
it is better that I, and two additional innocent halachically defined
souls, whose destruction is murder, be thrown into the fiery furnace
rather than one person [Yehuda] be embarrassed in public. Even if being
embarrassed in public is akin to murder, you suddenly don't have the
1-1 ratio everybody assumes (Yehuda versus Tamar) but 3:1. How could
Tamar take that sort of risk? The whole story really only makes sense
if one holds that uber k'yerech imo applied also to Tamar, even though
she had the din of a Bas Noach (it being pre Matan Torah).

Regards
Chana