[Avodah] The Meshekh Chokhmah on Abortion

[Micha Berger]

Dear Rabbi Korbin,

I just read your reply to R Herzfeld's op-ed in the Fev 13th post on
Jewish Journal, "Open Debate Continued: Is N.Y.s Abortion Law Halachic?"
<https://jewishjournal.com/culture/lifestyle/first_person/293833>

What caught my eye is your citation of the first Meshekh Chokhmah on
this week's parashah (Shemos 35:2) which I happen to be in the middle
of preparing to teach.

You imply that R' Meir Simchah haKohein miDvinsk holds that abortion is
murder, by citing the first Meshekh Chokhmah on this week's parashah.

What he says, though, is that it's assur, even if the punishment is left
to beis din shel maalah. RYMhK does not actually say that said issur is
retzichah. He calls it "makeih adam", a quote of the pasuq. But never
says anything about murder.

Rabbi Herzfeld's statement that it takes a somewhat unique reading of the
Rambam to conclude that he believes that abortion of retzichah appears a
solid argument to me. the Bach doesn't reach that conclusion. After all,
Hil' Rotzeich 1:9 gives different pesaqwim for an ubar a moment before
hotzi rosho, and the same baby a moment after. The Rambam's "kerodeif
achareha lehorgah" appears to only be sufficient for an ubar, and for
an actual tinoq, "ein dochin nefesh mipenei nefesh". Because, leshitaso,
an ubar isn't a "nefesh" yet.

Similarly, you cite Nishmas Avraham CM IV 425.1 (vol II, pg 220). But he
explicitly says that "mevu'ar midivrei haRambam, haSmag, haR' Bechayei
vehaSA" that there is a prohibition of killing an ubar, "im lo midin
rodeif". Similarly his citation of the CI says that "mai chatzis dama
didakh" doesn't apply. Why not, if the ubar is a human whose abortion
is actual retzichah?

And the NA even discusses whether the issur is deOraisa or
deRabbanan! Even though he does conclude rov poqim hold it's deOraisa,
at least if done directly and not gerama (eg fasting). Citing him as a
source that says abortion is retzichah is far from what one can actually
prove from Rav Avraham. Because he doesn't actually say in that citation
what that issur is. And all that back and forth implies it's nothing
as cut-and-dry as just throwing his name into the list.

Similarly, Achiezer III 65.14 (daf 65 amudah 4) concludes that aborting
an ubar before 40 days may not be assur min haTorah. And after 40 days
(first paragraph on the amudah) he explicitly states, "gam be'ubar
af al pi delo igrei nefesh legabei din retzichah" we are still machelel
Shabbos to save him.

In the paragraph in between, R CO Grozhinsky discusses whether the issur
is even deOraisa! Tosafos in Chullin holds its assur derabbanan, but in
Sanhedrin that it's deOraisa. The Achitezer cites the Chiddushei haRan on
the case of a pregnant woman hayotzeis leihareig, that we don't wait until
the baby is born, "kivan shelo yatza la'avir ha'olam, lo chaishinan". And
RCOG concludes from the Ran that the issur is not min haTorah.

In Yachel Yisrael II #65, end of pg 150 Rabbi Lau explicitly writes that
an ubar is not a human for retzichah to apply, "ein ledamos es hamatzav
shel chayei ha'ubar lechayim shel adam."

So, of the meqoros you site, I only see where Rav Moshe calls abortion
retzichah. From what I've seen of the shu"t in the past, the only
ones who says that abortion is murder are 20th cent American yeshivish
posqim. Which admittedly is itself an impressive group one can't
summarily dismisss, as we're including not only Rav Moshe, but also R'
Aharon Kotler and R Yaaqov Kamenecki.

And I say "yeshivish" because R YB Soloveitchik allowed the abortion
of a fetus with Tay Sachs in the 6th month. ("Mentor of Generations:
Reflections on Rabbi Joseph B. Soloveitchik edited by R Zev Eleff,
"The Rav: His Impact on My Life, [R] Haskel Looksteing, pg 106.)

It is true that in "The Emergence of Ethical Man", pg 28, the Rav writes
"The murder of an unborn child is classified as a crime", it is still
unclear the crime is retzichah. To quote the previous sentence "Turning
to the beginning of life, even the embryo in the womb is considered under
many aspects a person endowed with juridic prerogatives." And on the next
page RYBS contrasts abortion or euthenasia, which are outright assur, with
the machloqes whether ha-mezakeh le-ubar kanah. It is very hard to argue
he holds that an ubar is a full human in all ways.

I can't say we have a raayah the Rav held it wasn't murder, but we really
have little indication that he did. Especially in light of the above
pesaq. Tay Sachs isn't piquach nefesh for the mother, that we have the
Rambam's usual matir of the ubar being in effect kerodeif.

And Rav Aharon Lichtenstein said, according to an unreviewed presentation
of a sichah at
<https://www.etzion.org.il/en/cultivate-and-guard-universal-duties-mankind>:
    Even if we were to accept that indeed it is the womans own body,
    we totally reject the conception that she then can do with it as
    she pleases. This is a completely anti-halakhic perception. It
    rests on a secular assumption that, as it were, "My Nile is my own;
    I made it for myself" (Yechezkel 29:3), as if we are the source of
    our own existence and therefore the masters of our own being. This
    is assuredly not the case.

He could be arguing leshitasam, but more straightforwardly it would seem
that Rav Aharon holds that an ubar is indeed part of the mother (as implied
by the dinim of hezeq of a shifchah), but still aborting it is assur.


Lemaaseh:

If abortion is indeed assur for reasons other than retzichah, that would
change what legislation we should support. Because even just one women
in a piquach nefesh situation, would be a greater consideration than all
those assur abortions a law may permit. And even that piquach nefesh is
not literal death, or the probability of death isn't high enough for
the law to allow, but is sufficient for her poseiq to permit. And so,
since it is impossible to get consensus about what that would mean,
never mind getting a voting block strong enough for halachic limits to
reach a court, how would we be allowed to back any Pro-Life legislation?

Whereas if we were talking about abortion as actual retzichah, then a rape
victim who couldn't step forward for 40 days couldn't get an abortion.
Even if she is a naive chassidishe teenage girl whose therapist believes
she couldn't handle carrying her attacker's baby to term without real
risk of ending up a shotah to the point of not being mechuyeves bemitzvos.

Tir'u baTov!
-Micha

Cc: Avodah Torah Discussion Group

-- 
Micha Berger             Spirituality is like a bird: if you tighten
micha at aishdas.org        your grip on it, it chokes; slacken your grip,
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