[Avodah] Abortion isn't Murder

[Zev Sero]

On 23/07/2013 9:54 AM, Chana Luntz wrote:
>> And the*law* of rodef (or "kerodef" if you want to be hypercorrect) does
>> not require intent. The person falling off the roof and about to fall on a
>> person and kill him is kerodef and may be killed.

> Do you have a source for this (other than the gemora/Rambam regarding an
> uber)? One might want to argue that of the Rambam's three categories of
> those who kill without kavana (perek 6 of hilchos rotzeach), at least those
> who are considered karov to meizid should be within this category (but where
> do you find it?) - but to take the extreme case of the shogeg karov l'ones -
> wouldn't a more standard halachic analysis be shev v'al ta'aseh adif. The
> pasuk of al ta'amod al dam re'echa is described in the gemora (Sanhedrin
> 73a) using the examples of drowning in a river or being attacked by wild
> beasts or by bandits (who can surely be assumed to have intent). On what
> basis are you able to extend this to somebody who inadvertently falls off a
> roof, or otherwise is about to kill without intent? - ie situations where if
> brought to beis din, the person would at most be exile to the irei miklat,
> or even be deemed patur.

My source is Rambam Hil' Rotzeach 1:6 http://mechon-mamre.org/i/b501.htm#6
"One who is chasing someone else to kill him, even if the chaser is a
minor, all Israel are commanded to rescue the victim from the chaser,
even [if necessary] at the expense of the chaser's life." The law about
the foetus follows directly from this: "*Therefore* the chachamim directed
that if a woman is having difficulties giving birth it is permitted to cut
the foetus in her belly." The only heter is because of the din of rodef,
and because it applies even to a minor. If not for this, the Rambam says,
there would be no heter.

That it applies to a minor proves that it doesn't depend at all on the
endangerer's culpability. It doesn't matter how culpable or innocent he
is, because it's not about him, it's about the person he's endangering.
That's why one may not use more force than necessary, even if he is full
of malicious intent; it's also why one may use as much force as necessary
even if he's completely innocent. All that's required is that one person
is endangering another. When the danger can't be said to emanate from
one person but from the situation as a whole, so that one can't point to
one person as the rodef and the other as the nirdaf, then "this is the
nature of the world", and one can't save one at the expense of the other.

There's an incident in R Oshry's ShuT Mimaamakim, where some Jews were
hiding and a baby started crying. They put a pillow over it to prevent
the sound from getting out, and when the danger passed they discovered
that they'd killed the baby. R Oshry ruled that the baby was a rodef,
innocently bringing the Nazis to them, and thus they had done the
right thing.


On 23/07/2013 9:54 AM, Chana Luntz wrote:
>> She wouldn't be deliberately putting anyone into the fire. If she were,
>> then forget about her children, she would be murdering herself, which is
>> just as bad as murdering someone else. She would merely be failing to
>> prevent others from killing them, and she had no more duty to prevent them
>> from killing her children than she did to prevent them from killing her.

> The Rambam (the same Rambam you are holding up as the halacha for a BN)
> doesn't agree with you (assuming you read him as regarding abortion as
> murder, as you have been doing up until now). He says in Hilchot Melachim
> perek 9 halacha 4:
...
> A Ben Noach who kills a soul even a fetus in his mother’s womb is put to
> death for it, and so if he kills a treifa or he captures him and puts him in
> front of a lion or he places him in a [situation of] starvation until he
> dies, since one who causes death in any event is killed...

> You can't have it both ways. If, according to the Rambam, abortion is
> murder, then so too is the putting of someone in front of a lion, or placing
> them in a situation of starvation, or allowing them to be cast into a fiery
> furnace when one word could have released them.

No.  Murder is murder, no matter how one does it. But failing to
rescue someone is *not* murder. Jews are commanded "lo sa`amod al dam
re`echa"; but even so, if they fail to do this they are not murderers.
We do not find that Bnei Noach are commanded "lo sa`amod" (and for that
matter we are only commanded regarding "dam re`echa", not anyone else).
A Ben Noach is entitled, if he chooses, to stand by and allow someone
to die, and no court can touch him. If he chooses to save a life he is
a hero, but if he chooses not to he may be a coward and a villain but
he is not a criminal. As I pointed out, if it were otherwise then
how could Tamar have been willing to allow *herself* to be killed?
According to you that would be the same as committing suicide.


> I am sure that abortions could be arranged (if they are not already
> done this way) by some sort of causation mechanism (the giving of
> drugs, the cutting of the umbilical cord or something) - following
> the Rambam, that would still be a problem, but it would seem from
> your defence of Tamar, that it would not be to you.

No, these are all acts that directly cause the death, and therefore murder
(though if done by a Ben Yisrael, even to an adult, they are not within
the jurisdiction of BD Shel Matta). They are not at all similar to a
failure to rescue someone from death.


On 23/07/2013 11:02 AM, Yonatan Kaganoff wrote:
> One position is that they have to while the other is that they can
> create their own rule-system within the general category of Sheva Mitzvos
> Bnei Noach as long as such a system is just. I believe that the former
> is the position Rambam and the latter is the position of the Ramah.

Where is this Rama?

-- 
Zev Sero
zev at sero.name