BACKGROUND AND CONTEXT
In Sanhedrin 57b we return to a verse which we looked at in unit 3(A): "One who spills the blood of a person, by a person his blood shall be spilled" (Genesis 9:6). The verse becomes important in the discussion of abortion because the Hebrew preposition ב can mean many different things, and often means "in." Therefore, it was theoretically possible to read the Biblical sentence as follows: "One who spills the blood of a person in a person, their blood shall be spilled." The phrase "the blood of a person in a person" was taken by at least one school of Rabbinic thought to be referencing a fetus. And because the verse was said to Noah, it was interpreted to apply to Gentiles alone (since Jewish laws come, essentially, from the Sinai covenant much later in time). But like with so many issues, here too there is a machloket among Rabbinic thinkers about how to apply the verse—even if you read it in this midrashic, non-contextual way using "in."
They [later Talmudic Sages] said in the name of Rabbi Yishmael: The Children of Noah are executed also for [killing] fetuses. What is Rabbi Yishmael's reasoning? Since it is written, "One who spills the blood of a person in a person, their blood shall be spilled" (Genesis 9:6). What sort of person is there who is "in a person"? You must conclude that it is a fetus in its mother’s womb.
But what about the Tanna Kamma [who disagrees with the interpretation of Rabbi Yishmael]? He is a tanna from the School of Menasheh, who said: Every death penalty prescribed for the Children of Noah [if they commit a capital crime] must be [in the form of] strangulation. And you should apply that word [from Gen 9:6] "in a person" to the end of the verse and understand it like this: "...in a person his blood will be spilled." What sort of bloodshed is there which happens inside a person's body? You must conclude that it is strangulation.
Study Questions on Sanhedrin 57b
1. Let's assume that Rabbi Yishmael (who was a Tanna living in the 2nd century CE) knew that what he taught was not the literal, contextual meaning of Genesis 9:6. Why do you think he chose to read the verse that way? How might it reflect his opinion of Gentiles?
2. Explain how the Tanna from the School of Menasheh read that same verse differently. Also, write out the verse in English and put the comma where it belongs, according to him.
3. How does Rabbi Yishmael's view seem to contradict other things we've previously learned about fetuses?
BACKGROUND AND CONTEXT
The Talmud builds on the fact that God makes a covenant with Noah after the Flood to articulate a set of commandments that are binding on all human beings. They are called the "Seven Commandments of the Children of Noah." These basic theological and ethical commandments are derived or invented via a few verses in Genesis, including text that is found in the Adam and Eve story.
Maimonides in his great Code of Law summarizes this Rabbinic tradition of the seven Noahide (or "Adamite") commandments, while adding a bit of commentary about what they are and where they come from. In 9:4 of the "Laws of Kings and Wars," he also elaborates on his understanding of what the commandment against "bloodshed" implies for Gentiles (as opposed to Jews).
עַל שִׁשָּׁה דְּבָרִים נִצְטַוָּה אָדָם הָרִאשׁוֹן. עַל עֲבוֹדָה זָרָה. וְעַל בִּרְכַּת הַשֵּׁם. וְעַל שְׁפִיכוּת דָּמִים. וְעַל גִּלּוּי עֲרָיוֹת. וְעַל הַגֵּזֶל. וְעַל הַדִּינִים. אַף עַל פִּי שֶׁכֻּלָּן הֵן קַבָּלָה בְּיָדֵינוּ מִמּשֶׁה רַבֵּנוּ. וְהַדַּעַת נוֹטָה לָהֶן. מִכְּלַל דִּבְרֵי תּוֹרָה יֵרָאֶה שֶׁעַל אֵלּוּ נִצְטַוָּה. הוֹסִיף לְנֹחַ אֵבֶר מִן הַחַי שֶׁנֶּאֱמַר (בראשית ט, ד) "אַךְ בָּשָׂר בְּנַפְשׁוֹ דָמוֹ לֹא תֹאכֵלוּ". נִמְצְאוּ שֶׁבַע מִצְוֹת.
Adam, the first human being, was commanded regarding six things:
Idolatry;
Cursing God's name;
Bloodshed [murder];
Sexual Prohibitions [such as incest and adultery];
Theft;
And enforcing these [other] laws.
Even though all these [commandments] are a tradition we received from our master Moses, and human reason leads to them, it is possible to derive from the words of the Torah that he [Adam] was commanded regarding them.
To Noah the prohibition against eating the limb of a live animal was added, as it is stated, "But flesh with its own life-blood you shall not eat" (Genesis 9:4). So there are seven commandments [that apply to the Children of Noah].
בֶּן נֹחַ שֶׁהָרַג נֶפֶשׁ אֲפִלּוּ עֻבָּר בִּמְעֵי אִמּוֹ נֶהֱרָג עָלָיו. וְכֵן אִם הָרַג טְרֵפָה אוֹ שֶׁכְּפָתוֹ וּנְתָנוֹ לִפְנֵי אֲרִי אוֹ שֶׁהִנִּיחוֹ בָּרָעָב עַד שֶׁמֵּת. הוֹאִיל וְהֵמִית מִכָּל מָקוֹם נֶהֱרָג. וְכֵן אִם הָרַג רוֹדֵף שֶׁיָּכוֹל לְהַצִּילוֹ בְּאֶחָד מֵאֵיבָרָיו נֶהֱרָג עָלָיו. מַה שֶּׁאֵין כֵּן בְּיִשְׂרָאֵל:
A Child of Noah who takes any life [nefesh], even a fetus in its mother's womb, is put to death for it.
And similarly, if he killed someone who was about to die soon, or restrained them and placed them in front of a lion, or starved them to death—since he ended a life [heimit] in any manner, he is put to death.
And similarly, if he killed a pursuer whom he could have stopped by [only] wounding him, he is put to death for it—which [all of the capital punishments listed above for different kinds of killing] are not the case for a Jew.
Study Questions on Mishneh Torah
1. What do you think Maimonides means when he says that "human reason leads to" these commandments?
2. To what extent do you personally agree with him about that claim?
3. How can we tell that Maimonides is a bit skeptical that the source of these commandments is really certain verses in Genesis? (Look at Genesis, chapter 2. Can you find any commandments against the six things mentioned in Rambam's list?) Give at least three possible ways to see Maimonides' skepticism.
4. Regarding the Tannaitic machloket presented in Sanhedrin 57b, who does Maimonides rule like in section 9:4?
5. Are Jews permitted to kill people who are going to die soon, or starve people, or kill a pursuer, if it were possible to stop them by wounding, etc.? If not, what is the difference between Jews and Gentiles that he is describing?
6. How does your answer in #5 suggest that Maimonides' view of abortion is probably quite strict? Can you find another clue about this strictness in the language he uses in 9:4?
BACKGROUND AND CONTEXT
In general, traditional Jews have believed that the duties and responsibilities connected with keeping the Torah far exceed that of any other nation, religion, or culture—both in quantity and quality. For example, as we've noted, from a Talmudic perspective Jews possess 613 commandments and Gentiles only 7. (And that's not even counting all the Rabbinic mitzvot that Jews observe.) This aligns with the Talmudic orientation that more commandments equals more holiness. But all this may lead to a problem when we consider what has been said in this unit about abortion. How could abortion law be stricter for Gentiles than for Jews? Does that disrupt the idea that the covenant between God and Israel is always more demanding than the Noahide covenant?
"Tosafot," who authored the second text below, were schools of Talmudic scholars, principally in France and Germany during the 12th through 14th centuries, who analyzed and also attempted to harmonize problems and contradictions that appear among the Talmud's 5,400 pages. These commentaries are printed in most standard editions of Talmud, opposite the comments of Rashi.
ליכא מידעם דלישראל שרי ולעובד כוכבים אסור
There is nothing that is permitted to a Jew and forbidden to a Gentile.
קשה דאמרינן בפרק בן סורר ומורה (לקמן סנהדרין דף עב:) יצא ראשו אין נוגעין בו דאין דוחין נפש מפני נפש אבל קודם שיצא ראשו החי' פושטת ידה וחתכתו לאברים ומוציאה כדי להציל את אמו וכה"ג בעובד כוכבים אסור כיון שהוזהרו על העוברים
וי"ל דהא נמי בישראל מצוה כדי להציל ואפשר דאפילו בעובד כוכבים שרי:
There is a difficulty [with the Talmud's statement, above], for we say in Sanhedrin 72b: "If its head has emerged, they do not touch it, since we do not set aside one life for another life"—but before its head has emerged, the midwife reaches inside, cuts up the fetus limb by limb, and removes it in order to save the mother. But in such a situation a Gentile is forbidden [to do the same], since they were warned against killing fetuses.
And it is possible to suggest [as a solution to this apparent contradiction], that there is also a commandment for Jews [in this situation], in order to save [the life of the mother; and, therefore, Jews have a commandment which Gentiles don't have; but it's not that Jews are permitted to do something that is forbidden for Gentiles to do]. And it is possible that doing this [act of abortion] is even permitted to a Gentile.
Study Questions on Sanhedrin 59a and Tosafot
1. Restate using your own words the problem Tosafot sees in the claim made in Sanhedrin 59a. How does it appear to be wrong, in at least one important case?
2. Tosafot offers two possible solutions to this contradiction. Do your best to list them and explain what they mean. (The words in brackets should help a lot.)
3. Do you believe Maimonides would agree with the last sentence in Tosafot? Explain.
4. Would it make sense to you if you learned that some of the first Tosafot scholars were students and sons-in-law of Rashi? Why? (Look back at previous sources, as needed.)