[Avodah] Abortion isn't Murder

[Chana Luntz]

I  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.

And RZS responded:

>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.

That the Rambam does I certainly agree, as I posted in my previous piece:

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

But

>> 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.

The reality is that Rambam comes with three huge advantages that makes him
the rishonic source of choice for laypeople to cite (or to be taught to
children) namely:

a) he writes in clear, concise, simple Hebrew;
b) he does not assume that the reader is familiar with the terminology and
concepts of the gemora, but rephrases and explains them (according to his
shita); and
c) the Mishna Torah is superbly organised, so much so, that if you are
looking for what the Rambam says on a topic, it is often very easy to go to
the logical place, and hey presto, there it is.

Ma shein ken for the other rishonim who tend to:

a) write in an difficult mixture of Hebrew and Aramaic;
b) use shorthand references to gemora concepts and terminology, assuming you
are totally conversant with such language; and
c) are commonly found (at best) on relevant dafim of the gemora (which means
you need to know where to find the topic in the gemora), but (aside from
Rashi) not even usually the most logical place on the gemora, but on some
gemora that has a tangential connection with the main relevant gemora and
where they cross reference and then explain.

As a consequence, whole swathes of the olam just have no tools to properly
access the other rishonim.

I am amazed by how often, even in situations where the Shulchan Aruch has a
ruling, that the Rambam is quoted out there in the "olam", without reference
to the Shulchan Aruch (which of course is the more authoritative  work).  It
is true that frequently the Shulchan Aruch rules precisely according to the
words of the Rambam, but also frequently he changes it a little bit, to pick
up some nuance of the other rishonim (often as explicated in the Beis Yosef)
or rules against him, based on his assessment of the other rishonim.

And certainly in an area which the Shulchan Aruch and Tur does not touch,
there often seems to be an assumption amongst laypeople that we rule like
the Rambam (on just about anything).  But that is unquestionably not the
approach taken in the teshuvos of the achronim, who invariably do a survey
of wider rishonic opinion (more or less extensively).  Even if (sometimes)
they end up poskening like the Rambam.

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

In this particular case, there are at least a couple of dozen or more
teshuvos from the achronim on the question of abortion (admittedly, the vast
majority the actual shiala deals with abortion in a Jewish context) and
while of course, all of them cite the Rambam, including his ruling regarding
Bnei Noach, this is where you are wrong, and the consensus of halacha is in
fact not like the Rambam. This is the point that RMB and RET and others keep
trying to make.  RMF is a notable exception.  Unlike the others, he holds
basically like the Rambam, reads expansively instead of more limitedly,
starts with the position vis a vis Bnei Noach, and then tries to bring the
other rishonim into line with that Rambam, rather than the other way around.

Now, as I said, the vast majority of these teshuvos deal with abortion in a
Jewish context.  The reason that the whole question of Bnei Noach has to
come up, is the principle set out on Sanhedrin 59a that there is nothing
forbidden to a Bnei Noach that is permitted to a Jew (almost always
accompanied by Rashi's explanation there that this is to ensure that when a
person goes out from the category of Bnei Noach to become a Jew, he does it
to sanctify himself and not to be lenient). 

If anything I would say that the split is between:

a) those who hold like the explanation of Tosphos on Sanhedrin 59a and
Chullin 33a (ie as opposed to the position of Tosphos on Nida 44a-b) that
while a Ben Noach is chayav for killing foetuses, based on Rabbi Yishmael's
drasha, and Jews are patur, based on the gemora in Nida, it is still assur
for Jews to abort for a different reason, ie that an issur from the Torah
exists nevertheless (and that is enough to satisfy the rule about nothing
being permitted for a Jew and forbidden to a Bnei Noach); and 

b) those who hold like the Ran, the Tosphos in Nida, the Ra'avid and the
Ramban that the issur for Jews is d'rabbanan, and that therefore, at least
implicitly, if not explicitly (cf the Meharit chelek 1 siman 99) that it is
mutar for Bnei Noach.  

The most logical explanation for those of the second school is the Achiezer
I quoted, ie that they are just not poskening like Rabbi Yishmael.  

And if one plays the numbers game amongst the rishonim, they would seem to
outnumber the Rambam, just as the numbers of achronim who do not follow the
Rambam vastly outnumber those who do.  Thus it is just not true that
consensus of halacha favours the Rambam.

>> 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.)

I probably shouldn't have used the term ubar yerech imo, because that
muddies the waters.  But your argument doesn't work either - if he is "part
of his mother, and shares her identity, so her chiyuv misa applies to him
too", then you have got a problem at the other end.  What if after the gmar
din, but before the woman is actually executed, she gives birth?  According
to you, her chiyuv misa applies to him too, so that one would be obligated
to execute him as well, now that he was born.  That is precisely the
conclusion of Ravina on Sanhedrin 80b (in relation to a cow that killed a
person and her offspring, if she gave birth between the gmar din and
actually being executed - because ubar yerech imo) and the reason the Ran
gives in explaining Rabbanu Tam's rejection of poskening like Ravina (and
hence holding ubar lav yerech imo).  However those who still holds that ubar
yerech imo and posken like Ravina (as does seem to be the maskana of the
gemora there in Sanhedrin), can argue that in the case of Arechin 7a (ie
where the mother is convicted of a capital crime), once the woman sits on
the birthing stool (we might say, goes into labour, although that may be a
slightly earlier stage), in the case of a human, there is a change from ubar
yerech imo to lav ubar yerech imo (ie it is not longer k'yerech imo, as is
explicit in Arachin there, since once it uprooted itself it is considered
another body (presumably ma she ain ken for a cow)).

That by the way is the simplest explanation of the rodef discussion in the
Rambam (and the Shulchan Aruch who follows him Choshen Misphat Siman 425
si'if 2) regarding chopping up the baby to get it out.  Both specifically
refer to a woman mekashe l'led - ie we are clearly talking about a woman in
labour here, who is in difficulty.  This is case where, according to Arachin
7a, the uber has uprooted itself, and can now be considered a gufa achrina
(at which point it is required to hold up the execution of the woman until
she gives birth). (Although I do confess that while it seems pashut to me
that the uber is a k'rodef, and not rodef mamash, that seems to me to have
little to do with the question at hand.  A rodef mamash has to have intend
to kill (or rape or whatever).  If I chase after you to kill you, I am a
rodef.  If I accidently fall out of a tall building, or are pushed by
somebody wanting to hurt me, and you happen to be underneath where I am
falling, you might get killed, but I can't see how you can say that I am a
rodef mamash.  A baby has no intent to kill its mother, quite the opposite,
if it had an intent, it would be to save her.  Therefore it cannot be
described it as a rodef mamash, the most it might have is a halachic status
like a rodef).

Note also, getting back to Tamar, that even were you correct in your
position regarding the gmar din falling also on the uber vis a vis Yehuda
(who believed she was guilty and hence would therefore be justified in
putting her and the two ubarim to death, since the gmar din fell on them
too), but that doesn't work for Tamar herself.  Tamar knows she is innocent,
and hence her deliberately putting Peretz and Zerach into the fire (via
herself) to be killed, would clearly be a violation of the issur of rechitza
if indeed issur of rechitza there was.

Zev Sero

Shavuah Tov

Chana