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PRO-CHOICE VERSUS PRO LIFE: WERE DO WE STAND AS JEWS?

Part One: Is a Fetus a Person?

(יז) וְאִ֕ישׁ כִּ֥י יַכֶּ֖ה כָּל־נֶ֣פֶשׁ אָדָ֑ם מ֖וֹת יוּמָֽת׃

(17) If anyone kills any human being, he shall be put to death.

(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ (כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃ (כד) עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃ (כה) כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)

(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, bruise for bruise.
ואצטריך למיכתב מכה איש ואיצטריך למכתב כל מכה נפש דאי כתב רחמנא מכה איש ומת הוה אמינא איש דבר מצוה אין קטן לא כתב רחמנא כל מכה נפש ואי כתב רחמנא כל מכה נפש הוה אמינא אפילו נפלים אפילו בן שמונה צריכי
The Gemara notes: And it was necessary for the Torah to write: “One who strikes a man,” and it was necessary for the Torah to write: “Anyone who kills a soul, the murderer shall be slain on the basis of witnesses” (Numbers 35:30), since if the Merciful One wrote only: “One who strikes a man and he dies,” I would say that one who strikes a man, i.e., an adult, who is obligated in the fulfillment of mitzvot, yes, he is executed, but one who kills a minor, no, he is not executed. Therefore, the Merciful One writes: “Anyone who kills a soul.” And if the Merciful One wrote only: “Anyone who kills a soul,” I would say that one is executed even if he killed a non-viable newborn, or even if he killed a child born after a gestation period of eight months, who, in talmudic times, was also considered non-viable. Consequently, both verses are necessary.

What is the penalty for murder in these sources?

What is the penalty for causing a miscarriage to a fetus?

What conclusions can we draw about the status of a fetus from this set of sources?

Note that the Greek version of this passage from the Septuagent, used by the Catholic Church as the basis for the Church's translation, reads differently.

22 And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty: as the woman's husband may lay upon him, he shall pay with a valuation. 23 But if it be perfectly formed, he shall give life for life,
ובנישואין מי חששו והתניא בת כהן שנישאת לישראל ומת טובלת ואוכלת בתרומה לערב אמר רב חסדא טובלת ואוכלת עד ארבעים דאי לא מיעברא הא לא מיעברא ואי מיעברא עד ארבעים מיא בעלמא היא

The Gemara asks: And about marriage were they concerned? Isn’t it taught in a baraita: In the case of the daughter of a priest who married an Israelite and her husband died on that same day, she immerses to purify herself, as she is ritually impure due to their intercourse, and she may partake of teruma that same evening? Evidently, the Sages were not concerned that she became pregnant from the initial act of intercourse, even that of marriage. Rav Ḥisda said: She immerses and partakes of teruma only until forty days after her husband’s death, when there is still no reason for concern, as if she is not pregnant then she is not pregnant. And if she is pregnant, until forty days from conception the fetus is merely water. It is not yet considered a living being, and therefore it does not disqualify its mother from partaking of teruma.

(ז) הַמַּפֶּלֶת לְיוֹם אַרְבָּעִים, אֵינָהּ חוֹשֶׁשֶׁת לְוָלָד. לְיוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה. רַבִּי יִשְׁמָעֵאל אוֹמֵר, יוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וּלְנִדָּה. יוֹם שְׁמוֹנִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה, שֶׁהַזָּכָר נִגְמָר לְאַרְבָּעִים וְאֶחָד, וְהַנְּקֵבָה לִשְׁמוֹנִים וְאֶחָד. וַחֲכָמִים אוֹמְרִים, אֶחָד בְּרִיַּת הַזָּכָר וְאֶחָד בְּרִיַּת הַנְּקֵבָה, זֶה וָזֶה לְאַרְבָּעִים וְאֶחָד:

(7) If a woman miscarried on the fortieth day, she need not be concerned that it was a valid childbirth. On the forty-first day, she sits as for both a male and a female and as for a menstruant. Rabbi Ishmael says: [if she miscarried on] the forty-first day she sits as for a male and as for a menstruant, But if on the eighty-first day she sits as for a male and a female and a menstruant, because a male is fully fashioned on the forty-first day and a female on the eighty-first day. But the sages say: the fashioning of the male and the fashioning of the female both take forty-one days.

What is the significance of the forty day mark for the fetus?

What is the status of the fetus prior to forty days?

Note that Rabbi Immanuel Jakobowitz, a leading 20th century authority, suggests that the Talmud's forty days may be equal to sixty days in our terms, because of our ability to detect a pregnancy earlier.

Part Two: Fetal Development and Abortion

חד אמר הא מני רבי היא דאמר המשחרר חצי עבדו קנה וחד אמר מאי טעמא דרבי בהא קסבר עובר ירך אמו הוא ונעשה כמי שהקנה לה אחד מאבריה:

One of them said: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Yehuda HaNasi, who says: With regard to one who emancipates half of his slave, the slave acquires freedom for half of himself, and one of them added an explanation and said: What is the reasoning of Rabbi Yehuda HaNasi for this ruling? He holds: A fetus is considered as its mother’s thigh, i.e., a part of its mother’s body, and it is as though the master transferred ownership of one of her limbs to her. Since the maidservant is pregnant, the child is considered to be a part of her, and it is as though he emancipated a portion of her body. Therefore, the mother is not acting as an agent for the child, and this halakha does not present a difficulty for Rabbi Yoḥanan’s opinion.

What does this source tell us about the status of the fetus between 40 days and birth?

Part Three: Justifiable Abortion

(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:

(6) If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person's life for that of another.

נימא מסייעא ליה רודף שהיה רודף אחר חבירו להורגו אומר לו ראה שישראל הוא ובן ברית הוא והתורה אמרה (בראשית ט, ו) שופך דם האדם באדם דמו ישפך אמרה תורה הצל דמו של זה בדמו של זה
The Gemara suggests: Let us say that a baraita supports the ruling of Rav Huna, who said that a pursuer does not require a forewarning: If a pursuer was pursuing another person in order to kill him, a third party says to the pursuer: See that he whom you are pursuing to kill is a Jew, and a loyal member of the covenant, and the Torah stated: “Whoever sheds the blood of man, by man shall his blood be shed” (Genesis 9:6). The Torah stated: Save the blood of this person who is being pursued with the blood of that person who is pursuing him. The fact that there is no indication here that the pursuer must say that he heard the forewarning suggests that forewarning is not required, as stated by Rav Huna.
והתורה אמרה שופך דם האדם באדם דמו ישפך - כל הרואה אותו ישפוך דמו בשביל אותו אדם שהוא רודף דהיינו באדם בשביל הצלת אדם הנרדף והא הכא דלא קתני יודע אני ועל מנת כן אני עושה ואין כאן קבלת התראה ואפילו הכי מיחייב:

[In the case of] a pregnant woman [who is in mortal danger during childbirth, she may] extend her hand and cut up [her fetus] and remove it limb by limb, for as long as it has not emerged to the world, it is not a nefesh [soul] and it is permitted to kill it and to save its mother. But if its head has emerged, one may not touch it to kill it, for it is as living offspring, and one does not set aside one nefesh for another. ...

(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:

(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a rodef. On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother. If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.

1. According to the MIshnah, when the mother's life is in danger during childbrith, whose life takes precedence, the mother or the fetus? When does the answer to this question change?

2. How do Rashi and Rambam differ in their understanding of this situation?

3. What might the implications be of Rashi and Rambam's positions for the questions about abortion we face today?

Part Four: Contemporary Views

Excerpts from Igrot Moshe (Reb Moshe Feinstein, 1895 – 1986)
It would be forbidden to kill it even to save someone’s life. The exception would be to save the life of the mother during childbirth, not for any other need of the mother, which would definitely be forbidden.
Even for children for whom the doctors predict a very short life span, such as those children who are born with the disease called Tay-Sachs, which through newly developed tests can be diagnosed prenatally, it would be forbidden since there is no danger to the mother and the infant is not a rodef. One cannot permit an abortion even though there is very great suffering involved … It is incontrovertible and clear as I have written, a straightforward halachah according to the words of our Masters, the traditional commentaries and halachic authorities, that abortion would be forbidden as bona-fide murder, for any fetus; legitimate or a mamzer, genetically normal or afflicted with Tay-Sachs, are all included in the prohibition according to Jewish law.
Excerpts from Tzitz Eliezer (Eliezer Waldenberg, Jerusalem, 1915 – 2006)
If there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation. Also, if her health is poor and to cure her or to relieve her from great pain it is necessary to abort the fetus, even if she is not in actual danger, there is room to permit it, based on the halachic authority’s evaluation of the situation.
In the case of a baby who will have Tay-Sachs, "One should permit...abortion as soon as it becomes evident without doubt from the test that, indeed such a baby shall be born...if, indeed, we may permit an abortion according to the halachah because of 'a great need' and because of pain and suffering, it seems that this is the classic case for such permission. And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh.
A Statement on the Permissibility of Abortion (Rabbinical Assembly)
Jewish tradition is sensitive to the sanctity of life, and does not permit abortion on demand. However, it sanctions abortion under some circumstances because it dos not regard the fetus as an autonomous person. This is based partly on the Bible (Exodus 21:22-23), which prescribes monetary damages where a person injures a pregnant woman, causing a miscarriage. The Mishnah (Ohalot 7:6) explicitly indicates that one is to abort a fetus if the continuation of pregnancy might imperil the life of the mother. Later authorities have differed as to how far we might go in defining the peril to the mother in order to justify an abortion. The Rabbinical Assembly Committee on Jewish Law and Standards takes the view that an abortion is justifiable if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the fetus is judged by competent medical opinion as severely defective. The fetus is a life in the process of development, and the decision to abort it should never be taken lightly. Before reaching her final decision, the mother should consult with the father, other members of her family, her physician, her spiritual leader and any other person who can help her in assessing the many grave legal and moral issues involved.

Compare and contrast the three modern opinions above. How does each relate to the current controversy over abortion rights and restrictions?