[Avodah] Abortion isn't Murder

[Zev Sero]

On 18/07/2013 6:43 AM, Chana Luntz wrote:
> 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.

That is a good point, but we pasken like R Yishmael.  Or at least the Rambam
does, and almost everyone follows him on this topic.


> Now while the Rambam in Hilchot Melachim perek 9 halacha 4 poskens
> like Rabbi Yishmael, as the Kesef Mishna there notes  [...]
> 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.

OK, but that seems not to be the consensus of halacha.


> 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).

I don't think that's a problem, for the same reason that it's not a
problem with a Jewish woman who's convicted of a capital crime. AIUI,
"ubar yerech imo" doesn't mean the ubar isn't a person, it means he's
not a *separate* person from his mother. He's part of his mother, and
shares her identity, so her chiyuv misa applies to him too. (Perhaps we
can analogise this to the way a ben pekua's mother's shechita renders
him kosher.)


-- 
Zev Sero
zev at sero.name