Volume 8 Number 59
Subjects Discussed In This Issue:
Abortion (3)
[Arthur Roth, David Gerstman, Yosef Bechhofer]
Abortion Protesting
[Robert A. Book]
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From: <rotha@...> (Arthur Roth)
Date: Mon, 26 Jul 93 15:04:41 -0500
Subject: Abortion
On 8/13/89, Rabbi Irons (who is head of a large kollel in the
Detroit area) gave a fascinating lecture at my shul in Skokie, Ill. on
abortion in halacha. I have decided to share my notes on this lecture
in this forum, given the current flurry of postings on abortion, several
of which remark that abortions are permitted in certain circumstances
(with levels of leniency that vary according to the particular posek).
Rabbi Irons seems very strict with respect to some aspects of this
question, yet surprisingly lenient compared to most Orthodox authorities
regarding other aspects of the question, making his total set of views
most striking. In fact, he prefaced his lecture with remarks to the
effect that we must be able to learn Torah on controversial issues
without preconceived notions, and let Torah come to the right
conclusions IN BOTH DIRECTIONS, giving us advance notice that his words
might not sit well with people on either side of the issue. I'm sure
Rabbi Irons would be glad to answer any questions generated by this
posting; it would be pointless to address questions to me, since I know
no more of his views than what I am conveying here from my notes.
Needless to say, I bear responsibility for any errors or misquotes that
might be contained below in the event that I misunderstood any of Rabbi
Irons' message. The notes follow.
1. Based on a gemara in Sanhedrin, a fetus acquires some status of
life at 40 days after conception. Rashi and Rambam disagree on the
extent of this status, as explained below. This seems consistent with
evidence from modern science, which has detected heartbeat and brain
waves at around 6 weeks of gestation. Hence from Day 40 on, all
abortions are prohibited except in situations of pikuach nefesh (danger
to life). The prohibition against murder in the sheva mitzvot b'nei
Noach (seven Torah laws for non-Jews) includes protection for fetuses
after 40 days. Hence the non-Jewish abortionist is liable for the death
penalty after Day 40; however, a Jewish abortionist is specifically
absolved from the death penalty by the famous verse in Parshat Mishpatim
about the man who causes a pregnant woman to miscarry. Of course, that
does not make his act permissible. Catholics have misinterpreted the
word "ason" from the verse in Mishpatim to mean pain and suffering to
the fetus; it really means the death of the mother.
2. There are some differences in the treatment of Jewish and
non-Jewish fetuses after Day 40, e.g., the Jewish fetus is given a name
and buried in a Jewish cemetery. However, there is no difference in
terms of right to life.
3. Halacha does not accept the modern feminist argument that the fetus
is part of the mother's body. However, even if we accepted this
principle, it would not justify abortions after Day 40 because we don't
own our bodies anyway, but rather we have USE of our bodies while we
live. So, for example, we may not sell the organs we can survive
without for profit.
4. There are no provisions in any of the above rules for rape or
incest. Right to life is unaffected by status as a mamzer. Rabbi Irons
did quote an authority named Eliezer Waldman (or Waldeman?) who allows
first trimester abortions for either a mamzer or a fetus with Tay-Sachs
disease, but Rabbi Irons considered this to be a da'at hayachid
(isolated individual opinion that cannot be relied upon) and couldn't
personally understand the logic behind it.
5. Before the 40th day, the status of a fetus is mayim b'alma, i.e.,
it has the same status as semen, which contains the potential for life
but has no status as a living being. As such, the fetus has no "right
to life", and it makes no difference whether or not the mother is
Jewish, because the "Jewishness" of the fetus is also a quality that is
not acquired until Day 40. Hence a fetus is not named or buried before
Day 40. However, Jewish males are prohibited from destroying even this
amount of life status --- whether it is semen or a fetus before Day 40,
and whether it is their own or someone else's. The azharah (warning)
about this comes from the story of Er and Onan, and the lack of
distinction between their own and someone else's is an obvious
consequence of the fact that the semen (or a fetus before Day 40) has no
halachic identity to connect it to its source. The reason for this
warning is that the Jewish male has the mitzvah of piryah v'rivyah
(procreation), which requires him to do anything he can to preserve even
the POTENTIAL for life. Piryah v'rivyah is the only mitzvah given
originally to b'nei Noach (the nations of the world) and then transfered
to the Jews when the Torah was given.
6. The conclusion from this is that abortions before Day 40 of
gestation are completely permissible for Jew and non-Jew alike, AS LONG
AS THE PROCEDURE IS NOT PERFORMED BY A JEWISH MALE DOCTOR. There are
some who prohibit even a Jewish female doctor (for reasons that Rabbi
Irons said he had no time to go into) and hence require a non-Jewish
doctor, but most do not impose this restriction. In any case, the
relevant factor is the status of the doctor rather than the status of
the mother, a fact that would have been quite astonishing without the
above reasoning. The penalty for a Jewish male abortionist before Day
40 is the same as the penalty for masturbation. This is pretty severe
in itself, but before we understood that both acts destroy things that
have the same halachic status in terms of life and right to life, we
might have been surprised that the abortion is not considered far worse.
7. If the mother's life is in danger, the following comes from the
same gemara in Sanhedrin referred to in #1 above:
(a) Up until the head emerges (or, in the case of a breach birth, half
the body), the fetus may even be dismembered limb by limb if it is
necessary to save the mother.
(b) After this, the gemara says we cannot choose between fetus and
mother, so we must sit and wait. However, poskim have restricted this
to the case where there is at least a possibility that one (or both)
will survive. If the doctors are CERTAIN that both will die, then we
may kill the baby to save the mother, on the grounds that there is a
slight possibility that the baby might die before it is 30 days old even
if it survives the birth in healthy condition. Since there is this
slight doubt that the baby will become a "velad shel kaymah" (fully
established life for which parents are subject to the laws of mourning,
among other things), the mother should be given precedence in this case.
8. Rashi and Rambam disagree on the reason for 7(a). Rashi holds that
the fetus has less of a life status than the mother until birth. He
thus holds that there are three life statuses: none before Day 40, some
from Day 40 until birth, and full status after birth. Rambam, on the
other hand, holds that the fetus has full life status from Day 40 on.
He learns 7(a) from the principle of rodef (someone who is threatening
someone else's life). He gives examples to refute the argument that
malice is required for someone to be considered a rodef. But if mother
and fetus have the same life status (i.e., degree of right to life), how
can you choose between the two rodfim, each threatening the life of the
other? Rambam argues that though they have the same right to life, the
halacha for a rodef depends on whether or not the life it threatens has
been born yet. Each individual has the right (indeed, the obligation)
to kill a rodef who will otherwise kill another person after that person
has been born. However, the rodef after the unborn fetus can only be
put to death by Bet Din, and only after (not before) the fact. Also, as
we learned above, the death penalty for such a rodef applies only to a
non-Jew; a Jew is exempted from the death penalty by the verse from
Mishpatim. Nevertheless, according to the Rambam, the Bet Din should
act (afterwards) as if this rodef had committed full murder, whether or
not the death penalty applies, because it had killed a being with full
right to life. At the time the mother and unborn fetus are each rodfim
after each other's lives, however, the individual has the right and
obligation to kill the rodef after the mother's life but not the rodef
after the life of the unborn fetus.
9. Note that Rashi and Rambam agree on both 7(a) and 7(b); the
disagreement is only about the reason. Rabbi Irons, however, proposed a
hypothetical case where Rashi and Rambam would require different actions
because of their respective approaches. If the mother has a tumor that
can't be removed without first killing the fetus, Rashi would have the
tumor removed because the mother's life status is greater than that of
the fetus. But Rambam would disallow the procedure on the grounds that
the tumor rather than the fetus is the rodef in this case, so killing
the fetus cannot be justified. As an interesting side point, the
mechaber of the shulchan aruch (Rav Yosef Cairo) brings down the halacha
together with the Rambam's reasoning, word for word.
10. Several days after the lecture, when I was reviewing my notes and
putting them into an easy form to refer to, I thought of a question that
I would have liked to ask Rabbi Irons, which I wrote down at the end of
my notes and never pursued further. The halachot regarding rodef, as
Rabbi Irons pointed out at least twice, are derived from the verse, "Lo
ta'amod al dam reiecha", which means, "Don't stand on your friend's
blood." It is well known that the word reiecha (your friend) is taken
to mean that this refers only to Jews saving Jews. Hence killing the
fetus to save the mother EVEN BEFORE BIRTH based on the laws of rodef
would seem to be justified only if both the mother and the doctor are
Jewish; otherwise, Rambam seems to have a problem. Of course, none of
this presents any difficulty for Rashi, who doesn't use the idea of
rodef at all.
Let me repeat that except for #10 above, I have simply repeated the
words of Rabbi Irons, and any questions/comments should be directed to
him and not to me. --- Arthur Roth
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From: <dhg@...> (David Gerstman)
Date: Mon, 26 Jul 93 16:07:14 -0400
Subject: Abortion
I'm very disturbed by the strong anti-pro-life (how's that for
confusion?) tone taken in some postings here. I'm not advocating them
or their tactics or their views. Clearly they wish more restrictions
than Halachah which is reason to be uncomfortable with them. But,
neither is the pro-choice view consistent with Halachah. Abortion, for
Jews, is not a capital offense. But that doesn't make it Muttar either.
Certainly the view espoused by Planned Parenthood that abortion should
be available on demand, even as a form of birth control, should be as
disturbing. Hetterim exist for abortion, but those are for extenuating
circumstances, not as a matter of convenience.
David
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From: <YOSEF_BECHHOFER@...> (Yosef Bechhofer)
Date: Mon, 26 Jul 93 18:55:56 -0400
Subject: Abortion
Someone who recently protested vehemently against Jewish cooperation
with Operation Rescue mentioned in passing that she had attended a
"clinic defense." While the justification for assisting OR is lacking on
Hashkafic grounds, IMHO it is clearly forbidden on Halachic grounds to
assist goyim in what is, for them, certainly after the first 40 days, a
capital crime. By the way, one who kills a dying person (a "goses") has
commited a capital crime. It is only one who kills one who has suffered
a mortal wound (a "treifa") who has transgressed "THou shalt not murder"
but has not commited a capital crime.
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From: <rbook@...> (Robert A. Book)
Date: Tue, 27 Jul 93 16:06:14 -0400
Subject: Abortion Protesting
Leah S. Reingold (<leah@...>) writes:
> I was shocked to read this posting. Halakha is certainly NOT
> prohibitive of all abortions. There are, indeed, times, when halakha
> MANDATES abortions, i.e. when the mother's life is in danger and the
> fetus is then considered a rodef (pursuer [with intent to kill, in this
> case]).
No one raised the issues of *ALL* abortions. The only issue here is the
type of abortions Operation Rescue was protesting; namely, abortion on
demand for the sake of convenience. It should be noted that Halacha
requires abortions in some circumstances, and prohibits it in most
circumstances, and thus is certainly not "pro-choice."
> Halakha in no way supports the view that a fetus is a full human life.
> In fact, up until the age of 30 days, a dead baby is not buried with
> full rites.
This is a non-sequitur, unless your are trying to argue that infanticide
is permitted up to 30 days on the grounds that a baby under the age of
30 days is also not a full human life. This is certainly not the
Halacha.
> Furthermore, tactics such as groups such as "Operation Rescue" are
> antithetical to Jewish morals. It would be a HUGE chillul hashem
> (defamation of G-d) for Jews to participate in that sort of violent
> protest of medical services.
There is some dispute as to whether this falls under the category of
"medical services." Even so, this is not relevant. Would it be Chillul
HaShem to protest the "medical services" of Jack Kervorkian, who
"assists" his "patients" in committing suicide?
Mandy Greenfield (<MGREENFIELD@...>) writes:
> I just thought I'd add an aside to the topic of whether Orthodox Jews
> have any obligation to actively protest against abortion in the US.
> It's my opinion that the separation of church and state runs both ways
> -- just as we would not be happy seeing Catholicism, for example, being
> codified into US law [...]
No one is suggesting codifying Halacha into U.S. law. Nevertheless, if
we are to be "Or L'Goyim" ("a Light unto the Nations"), then it is
incumbent upon us to attempt to create an ethical society wherever we
may live, and wherever that may be possible. Those of us who live in
the U.S. or other democracies may find that the democratic process can
be used as one tool among many to further this goal. The separation of
church and state is supposed to ensure that religion is not imposed on
us by the state, not to require us to leave our religious convictions
behind when we enter the voting booth.
> Do we have any right "pontificating" to those not even of
> our faith, or are there certain issues, one of which I believe to be
> abortion, for which we ought keep our personal convictions personal?
If the answer to this question is that we have no right to attempt to
influence the ethical (or not) behavior of non-Jews, then the concept of
being "Or L'Goyim" is completely obviated.
As to whether there we ought to keep our convictions "personal," I
submit that the view that all our convictions must remain private is
precisely the opposite of what is required not only by Or L'Goyim, but
also of democracy itself. Consider a less emotionally-charged example:
Halacha holds that stealing is forbidden. This is a law for both Jews
and B'nei Noach ("Children of Noah," i.e., all people including
non-Jews). Suppose there were a U.S. law making bank robbery legal. Am
I to surrender my right to protest such a law on the grounds that my
personal conviction that stealing is wrong ought to remain personal?
--Robert Book
<rbook@...>
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End of Volume 8 Issue 59
