[Avodah] The Meshekh Chokhmah on Abortion

[Micha Berger]

On Tue, Feb 26, 2019 at 02:37:22PM -0500, I wrote R' Korbin of Toronto's
BAYT, and CC-ed y'all:
: 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) ...
: 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.

Well, I got to a couple of relevant se'ifim of AhS.

CM 423:6. R YM Epstein ends the se'if (and siman), emphasis mine:
    ...And why don't we judge the laws of ason on the fetus?

    Because one is not chayav misah for an ubar, even if killed
    intntionally. For even on a neifel we aren't chayav [misah], as it
    says "and for every nefesh adam he shall suerly die, and an ubar IS
    NOT A NEFESH. (Nissah 44)

And similarly 425:7 quotes the famous Rambam about abortion to save the
mother vs "ein dochin nefesh mipenei nefesh" once the baby crowns. His
explanation as to the difference (citing the mishnah in Ohalos 7):

    Because he life comes before [the fetus]'s life. For the fetus isn't
    yet a nefesh.
    And not because he is a rodeif, because that's the nature of the world!
    And more, if it were because of rodeif, what would be the difference
    between one who emerged his head to one who didn't emerge?

As I noted when citing the Bach, the Rambam does not call the ubar a
rodeif, but says he is to be killed to save the mother "kerodeif".

But in any case, another acharon who says that fetuses aren't "unborn
chidren", that there is no "life" (eino nefesh) to be Pro-Life about.
The issur -- in their opinion (and I'm convinced it's the majority) --
is rooted elsewhere.

-Micha

-- 
Micha Berger             "'When Adar enters, we increase our joy'
micha at aishdas.org         'Joy is nothing but Torah.'
http://www.aishdas.org    'And whoever does more, he is praiseworthy.'"
Fax: (270) 514-1507                     - Rav Dovid Lifshitz zt"l