Abortion and Deception

Print Friendly, PDF & Email

Honesty is a necessary ingredient for civil intercourse but complete veracity can sometimes impede society. Deception is biblically prohibited by the verse “Keep yourself far from a false matter” (Ex. 23:7). If we agree that the ends never justify the means, then lying should never be allowed. But what about when the ends are very pressing? Is there really no situation in which deception is appropriate?

Janet E. Smith grapples with this in a recent First Things article (“Fig Leaves and Falsehoods“). After pro-life activists went undercover and, pretending to be pimps employing underage prostitutes, videotaped abortion workers offering illegal and immoral assistance, Catholic thinkers struggled with the morality of the investigation. Does exposing that improper conduct permit deception? Smith addresses the question from a Catholic viewpoint. I’d like to discuss the Torah’s perspective.

My gut tells me that this should be allowed but I have trouble locating an explicit reason to justify the lies. The Talmud allows for lying in the case of maintaining peace (Yevamos 65b), humility (Bava Metzia 24a) and protection from someone else’s deception (link, and for all these see Shulchan Arukh, Choshen Mishpat 262:21 and here). It would also certainly allow deception in order to save a life (see Sanhedrin 74a). If you assume that abortion is murder and therefore preventing an abortion is saving a life, then I see a clear justification. However, that assumption seems unwarranted to me (see here: I, II, III, IV).

In a brief conversation, I asked R. Gedaliah Schwartz whether deception would be allowed in such a case. If I understood his answer correctly, he responded in the negative. In this case, there is no mitigating factor that would allow lying. When I further asked whether undercover police investigations are allowed, R. Schwartz responded that they are allowed when there is life-threatening danger. I did not have the opportunity to confirm that undercover investigations are not allowed for non-violent crimes.

When I spoke about this briefly with R. Daniel Z. Feldman, whose book The Right and The Good contains two chapters on the subject of honesty, he directed my attention to the following discussion. R. Ya’akov Reischer (Shevus Ya’akov 1:138) was asked whether a rabbinic judge who feels his two judicial colleagues are ruling mistakenly may falsely claim an uncertainty about the case, thereby necessitating the addition of two new judges to the court, or must he voice his contrary opinion and be outvoted. R. Reischer responded that the judge is acting out of concern for justice. Since one may lie for the sake of peace, and justice is equivalent to peace, the judge may falsely state that he is uncertain about the case in order to obtain a just verdict. This equation of justice and peace is quite significant (Urim 12:3 and Nesivos, chiddushim 12:2 agree with R. Reischer’s conclusion). However, its application may be more restricted than initial appearance suggests.

When dealing with two claimants in a financial dispute, justice is often a distinct ruling that awards one or the other. Criminal cases are not necessarily similar. While the conviction of a violator of a technicality is a fulfillment of broadly defined justice, do our purposes require a more narrowly defined justice? In our case, the violators are providing assistance to people who may not qualify or should be given additional guidance for related issues. Is uncovering these violations considered justice? While it may be colloquially given that term, the dissimilarity to a financial dispute gives me pause.

In the end, I am not sure whether Judaism would allow undercover investigations absent a danger to life. In this case, even if we consider abortion to be a sufficient danger, the investigations were not intended to prevent abortions. They were designed to catch those who provide abortions in illegal ways. While this may be termed justice, I am not sure the cause is sufficient to permit deception.

Certainly, though, anyone wishing to utilize this or any other type of exception permitting deception must consult with an unbiased third party (such as a rabbi). Personal biases and temptations can easily sway an otherwise sober mind. Nevertheless, while Judaism requires honesty as a primary trait, it recognizes situations in which other specific concerns dominate. Whether the case under consideration is such a situation remains to be determined.

(Please note that my conversations with Rabbis Schwartz and Feldman were just casual discussions and were not intended to produce practical conclusions.)

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

54 comments

  1. Interesting.

  2. “Since one may lie for the sake of peace, and justice is equivalent to peace, the judge may falsely state that he is uncertain about the case in order to obtain a just verdict.”

    This seems like an unjustified, giant stretch, that has the fringe detriment of undermining the authority of the other two dayanim.

  3. i was thinking similarly to jon, except that i thought it undermines not just the authority of the other 2 dayyanim, but the court/justice system altogether. (unless i’m misunderstanding the role of the 2 junior dayyanim)

  4. GIL:

    “just casual discussions and were not intended to produce practical conclusions.”

    glad you ended with that, because otherwise there are very troubling (imho) statements.

  5. “i was thinking similarly to jon, except that i thought it undermines not just the authority of the other 2 dayyanim, but the court/justice system altogether. (unless i’m misunderstanding the role of the 2 junior dayyanim)”

    Let’s put this another way… A boss is allowed to tell his workers that “he doesn’t know” to prevent his opinion from swaying their own.

    Now replace Boss with “most popular judge”…

  6. Shalom Rosenfeld

    R’ Gil,

    You saw both rabbis @ the RCA convention, I assume?

  7. “After pro-life activists went undercover and, pretending to be pimps employing underage prostitutes, videotaped abortion workers offering illegal and immoral assistance,”

    While suing the Planned Parenthood events as a jumping off point for an halachic discussion is okay, this is a factual overstatement.

  8. “suing” should have ben “using.”

  9. There are two sides to the “justice is peace” argument. While it lends itself to abuse, it also permits common sense cases that do not fall into any other category.

  10. Gil,
    Do you really think that a civil society would work well without undercover investigations, and if not, how would you want (in principle) the state of Israel to comply with what you appear to think the halacha is?

  11. My daas torah 🙂 on the issue –
    1) the melech (some would say now beit din) in order to keep a civil society could authorize such subtrefuges and enforce based on them, no harm to the subtrefuger

    2)an unauthorized subtrefuge would still be enforceable in beit din but the subtrfuger may be liable (bydei shamayim?) for lfnei iver/msaayeah.

    3) I will need a very bright light and a magnifying glass to read that shvut yaakov!

    KT

  12. MDJ: Without undercover investigations in cases with no threat of life? I’m not so sure society can’t exist without them.

    Joseph Kaplan: I’m not aware of the details. I based my words on the summary in the First Things article.

  13. “There are two sides to the “justice is peace” argument. While it lends itself to abuse, it also permits common sense cases that do not fall into any other category.”

    The ends justify the means, I guess?

  14. IMHO there is room to be lenient for two reasons:

    1) Dealing with a crook may permit one to lie. See Megilla (13b) Jacob assures Rachel he can swindle her father. Mesillat Yesharim (11) claims it is a mitzva to cheat a crook and proves it from Chushai haArci. See Bava Basra (46a) re counter-strategies against the swindlers of Pumbedusa. See Bava Metzia (76b) re misleading a person to regain that which is rightfully his.

    2) In any battle (assuming the war against crime which is a battle of wits is similar) lying is essential. Mishlei (24 6) with trickery shall you battle. We find that Jacob’s children misled Schem in order to rescue Dina from captivity. Yakov lied to Esau telling him he’ll rejoin him at Sayir to get rid of him. When the law is “Kul dAlim Gavar” ie. the strongest wins, one may engage in deception to win, see Gittin (60b) and Tosfos there.

  15. Gil,
    A civil society relies on a lot more than preventing treats to life. Drug dealers and organized crime often do not present a (direct) threat to life. At any rate, these threats are not the reason they are of concern to law enforcement. Rather,it is the more general threat they pose to social funcioning. Do you think undercover operations are permissible in those cases?

  16. MDJ: I’m not sure. Can you make a coherent halakhic argument to permit them in those cases?

  17. While we’re on the subject, does anyone have a source for lying being halachically prohibited (when not being done in court), as opposed to just morally and psychologically objectionable?

  18. R’ Steve,
    Well since we know “mshaneh mpnei hashalom” it can’t be that all lying is halachically prohibited. The question is where do you draw the line between halachically permitted (required?) lying (and to be Brisker-does that have a sheim lying :-)) and forbidden.
    KT

  19. Yes, Joel, I understand. But what’s the source that lying is ever prohibited? (And please don’t say “M’dvar sheker tirchak.”:))

  20. Yi’yasher kochakha, R. Student. In response:

    1) At the present time, the abortion statutes of the U.S.A. (and my own country Canada for that matter) do not conform with the Noahide Code. See R. J. David Bleich’s Bioethical Dilemmas, Vol. 2, pp. 357-361 for R. Bleich’s guidance to the U.S. Supreme Court how to rectify this matter. This isn’t the number one public policy priority for Orthodox Jewry (since, B”H, no one is ever compelled by the state to undergo an abortion, and basically our hakarat hatov for the U.S. and Canada as medinot shel chessed [apropos IM CM 2:29] outweighs our concern over the abortion issue) but it is still an issue. Three times a day, when we pray in Aleinu “litaken olam” (whichever spelling one prefers, apropos the recent brilliant article on the subject in Hakirah), we mean – among other concepts – the hope that the U.S. Supreme Court will implement R. Bleich’s words and outlaw abortion. [See Tradition 39:2, pp. 103-107, for a discussion between R. Hershel Goldwasser and R. Chaim David Zwiebel about the precise specifics of this point.] Until that comes to fruition, I can’t pass judgement on Noahide abortion workers, because basically they are “tinokot shenishbu” – they honestly believe they are acting correctly in good moral conscience. After all, their chief legal authority, the U.S. Supreme Court, grants them their approval. So I am not blaming any of the actors in this episode. On the other hand, I do congratulate the pro-life activists who educate people about the Noahide Code prohibition against abortion. Hopefully, there will be no future abortions.

    2) Whether or not piku’ach nefesh includes saving the life of a fetus is a dispute among the poskim, as discussed by R. Bleich in Bioethical Dilemmas, Vol. 2, pp. 206-207, 222.

    3) Even if piku’ach nefesh extends to saving the life of a fetus, that means saving a fetus “lefaneinu”. Conducting an undercover investigation in the hopes of preventing future abortions does not save a fetus “lefaneinu”. Conducting an undercover investigation is analogous to medical research which may yield therapeutic results in the future that will save lives. It is not a mitzvah of piku’ach nefesh. For this reason, medical researchers may not work on Shabbat. (See Bioethical Dilemma Vol. 2, pp. 200-205)] Still, medical research helps society (like the building of a wall around the city, apropos Bava Batra 7b) and the same would presumably be true for the efforts of pro-life activists. Moreover, conducting an undercover investigation which prevents future abortions may arguably be part of the mitzvah of “dinin”, as per the analysis of R. Bleich in Tradition 39:4, pp. 110-112. [Just for the record, I am firmly opposed to torture (which is the particular context of R. Bleich’s discussion there), since derakheha darkhei noam. But compared to torture, deception seems “nisht geferlikht”, and so deception might be acceptable.]

  21. “I did not have the opportunity to confirm that undercover investigations are not allowed for non-violent crimes.”

    That is an interesting question. If undercover investigation of non-violent crime is not permitted, how will we ever discover money laundering business like those described in *The Jersey Sting*?

  22. “At the present time, the abortion statutes of the U.S.A. (and my own country Canada for that matter) do not conform with the Noahide Code”

    Nor of any other country.

    “no one is ever compelled by the state to undergo an abortion”

    Nor to assist with one.

    “Three times a day, when we pray in Aleinu “litaken olam” (whichever spelling one prefers, apropos the recent brilliant article on the subject in Hakirah), we mean – among other concepts – the hope that the U.S. Supreme Court will implement R. Bleich’s words and outlaw abortion”

    I absolutely do not have that hope. Outlawing abortions would mean that halachically required abortions would be outlawed. And if you don’t think that is the goal of the anti-abortion advocates, look at Nicaragua or Chile — the law in those countries is that if a woman will die if the woman does not have her pregnancy terminated, well, the woman dies.

  23. Gil,
    That’s my point. Based on your premises, I may not be able to. What do you think that says about running a modern country (read, Israel) purely under halacha (as at least some people interpret it). My point is that your analysis raises a much bigger question that whether lying and undercover operations are muttar.

  24. FWIW, it is now impossible to stop all abortions, because of the advent of medical abortions using mifepristone or methotrexate.

  25. GIL:

    “Without undercover investigations in cases with no threat of life? I’m not so sure society can’t exist without them.”

    of course society can exist without them. but what type of a society would that likely turn into?

    MDJ:

    ” how would you want (in principle) the state of Israel to comply with what you appear to think the halacha is?”

    why “in principle”? how about some tachlis? the state of israel (and us here too) deals with the real world, not theory.

    “Can you make a coherent halakhic argument to permit them in those cases?”

    can you offer a coherent alternative to undercover operations? it’s easy to argue that something is assur, but then offer a realistic, practical and equally effective halakhically .permissible alternative.

  26. “If undercover investigation of non-violent crime is not permitted, how will we ever discover money laundering business like those described in *The Jersey Sting*?”

    After I wrote that, it occurred to me that money laundering is often associated with physically dangerous crime such as drug and munitions smuggling, so although it may be technically a non-violent crime, it enables violent crime. Might that make undercover investigations mutar when they otherwise would not be?

    When I was on a federal grand jury I voted to indict a lot of people for illegal entry into the US. That is something that probably would not be asur at all halachically. However, every one of these indictees had previously been convicted of a felony in the US, mostly for drug- or weapons- offenses. One had been convicted of first-degree murder, been deported, and had managed to get back into the US! I had no second thoughts about voting to indict.

  27. You joined the right to life movement? The fetus has civil rights in Judaism?
    Please.
    And at least give the correct facts in the case.

  28. R’ Steve,
    R’HS locates it in imitato dei / mah hu af atah/ zeh keli.
    KT

  29. Joel,

    Interestingly enough, I once asked R’HS the same question, and he mentioned same (I think an issur aseh via a Yerushalmi), but with all due respect to R’HS, is that all we’ve got? Basically, I was pointing out that it’s not completely clear that lying is halachically prohibited – unless there’s something else I don’t know about.

  30. CHARLIE HALL:

    “FWIW, it is now impossible to stop all abortions, because of the advent of medical abortions using mifepristone or methotrexate.”

    i assume you mean “since the advent of.” check you calendar, we’re in 2011 🙂

    “Nor to assist with one”

    are we including emergency contraception (plan B), because there are health care providers who are required to provide it. (yes, i’m aware that pharmacologically emergency contraception is not an abortifacient, but how does halacha treat it?)

  31. Abba,
    I think we are on the same page. I no longer recall why I added that caveat.

  32. “emergency contraception”

    The law provides that no health care provider is required to participate in an abortion. However, there is no such provision regarding contraception. And as you pointed out, emergency contraception is not abortion. However, as far as the Catholic church is concerned, contraception and abortion are both asur.

    When my wife worked as a physician in a medical clinic that performed abortions, she was never asked to participate in one. If one of her patients was interested in one, she would simply refer her to a colleague who did perform them. Once she had a patient whose fetus had a medical condition that meant that it would likely die *in utero*, and if not, would certainly die shortly after birth. She did not hesitate to recommend an abortion in that one case.

  33. CHARLIE HALL:

    “as far as the Catholic church is concerned, contraception and abortion are both asur.”

    as far halakhah is concerned, certain forms of birth control are also assur. (and of course some would argue all forms are assur.) how does halakhah view planB? (as an aside, some people use planB as regular contraception, not emergency contraception.)

    “The law provides that no health care provider is required to participate in an abortion.”

    and what would happen to a pharmacist who refuses to dispense an Rx for misopristol/MTX?

    “However, there is no such provision regarding contraception”

    state laws vary on the obligation to recommend/counsel and/or dispense plan B (and has been under judicial review in various jurisdictions)

  34. R’ Charlie Hall,
    Thank you for your important response. Accordingly, the tikkun olam I envisage when I recite Aleinu is (among other concepts) a constitutional amendment which reads:

    “All abortions are forbidden *except* where mandated by Halakhah. See, for example, Rabbi J. David Bleich’s Benetivot Hahalakhah III, pp. 8-39.”

    Admittedly, however, I think a sequential correction to R. Bleich’s treatise on this topic is required in his lengthy footnote in Contemporary Halakhic Problems IV, pp. 194-196. There, R. Bleich explains in six different dimensions why Tosafot to Sanhedrin 59a possess an unresolved doubt whether a Noahide may perform an abortion to save the mother’s life. In my opinion (after consulting with R. Bleich to clarify the meaning of this footnote), the six dimensions should be resequenced as 1-2-6-5-4-3, yieleding the following coherent flow:

    (i) Perhaps feticide is homicide for Noahides [in which case a Noahide could not kill the fetus to save the mother], versus perhaps feticide is a non-homicidal crime [in which case a Noahide could kill the fetus to save the mother].

    (ii) Even if feticide is homicide for Noahides, perhaps the blood of the mother is more red.

    (iii) Even if feticide is homicide and even if the blood of the mother is not more red, perhaps Noahides may commit homicide for piku’ach nefesh.

    (iv) On the countervailing side: Even if feticide is a non-homicidal crime, perhaps the whole reason that the mishnah in Ohalot 7:6 directs an obstetrician to kill a fetus that is endangering its mother is because the fetus is a rodef, and Noachides do not have the prerogative to neutralize a rodef who threatens a third party (-or, alternatively, perhaps this itself is the safek, viz., whether or not Noahides have the prerogative to neutralize a rodef who threatens a third party.)

    (v) Even if feticide is a non-homicidal crime, and even if the mishnah in Ohalot 7:6 does not demand the literal invocation of the law of a rodef (or, alternatively, even if Noahides possess the the prerogative to neutralize a rodef who threatens a third party), perhaps the travail caused by the fetus is considered illness (rather than force majeure) such that one could not violate the Noahide Code for piku’ach nefesh [as per the Minchat Chinukh’s thesis that only force majeure and not illness allows piku’ach nefesh to be invoked for Noahides].

    (vi) Even if feticide is a non-homicidal crime, and even if the mishnah in Ohalot 7:6 does not demand the invocation of a rodef (or, alternatively, even if Noahides possess the the prerogative to neutralize a rodef who threatens a third party),and even if the travail caused by the fetus is considered force majeure (since – arguably – the fetus could be described as an aggressor of sorts), or alternatively even if Tosafot completely reject the Minchat Chinukh’s distinction between martyrdom and illness and therefore allow violation of the Noahide Code even for pure illness, perhaps the only kind of piku’ach nefesh that allows violation of the Noahide Code is to save one’s own life and not someone else’s.

  35. I should point out that there is definitely a dispute here between R. Bleich and R. Feldman (cited by R. Student in link II in this post) how to interpret Tosafot to Sanhedrin 59a, s.v. leika. R. Feldman understands Tosafot to mean that it is definitely appropriate for a Noahide to kill a fetus to save the mother and so – halakhah lima’aseh – the Noahide should save the mother’s life. R. Bleich understands Tosafot to mean that it is doubtfully appropriate for a Noahide to kill a fetus to save the mother (for one of the six reasons enumerated above), and so – halakhah lima’aseh – the Noahide must remain passive and allow the fetus to survive.

  36. Gil,
    R. Shwartz’s ruling makes sense in the case at hand, which involve private citizens.

    Governments however are obligated to enforce the law and maintain public order, and they can use force to do so. If they can use violence, why not decption. the interesting question here is what constitutes illegitmate entrapment and other abuses government authority.

  37. Moshe: It could be that’s what R. Schwartz meant. Like I wrote, it was a brief, casual conversation.

  38. I just asked R. Hershel Schachter and he said that this kind of deception is allowed, although he didn’t elaborate and I didn’t want to push because he looks exhausted. He also said that he saw that Prof. Nachum Rackover is giving a Shavuos night shiur on this topic (sheker le-to’eles) in the Great Synagogue in Jerusalem.

  39. What kind of deception did R. Schachter aya is permitted: imminent danger to life, state police enforcement, or even by private citizens?

  40. He didn’t specify. His implication was that there is a justified and important benefit.

  41. “and what would happen to a pharmacist who refuses to dispense an Rx for misopristol/MTX?”

    He/she should be fired. For one thing, both drugs have other indications. Methotrexate is used for cancer and autoimmune diseases, and the indication is never listed on any prescription I’ve ever seen. Misoprostol is used for labor induction and for treatment of gastric ulcers.

    “All abortions are forbidden *except* where mandated by Halakhah. ”

    Many poskim have ruled that an abortion is permitted (and presumably not required) for genetic defects such as Tay-Sachs.

    ” the Noahide must remain passive and allow the fetus to survive”

    In practice, in most cases, if the mother dies, the fetus dies. That is what makes the Catholic-inspired laws in Nicaragua and Chile really stupid.

    And in any case, in a western democracy, you can’t enact a “halachic” abortion law that treats Jews differently. That may not be necessary, though, as the pshat of the sugya in Sanhedrin you mention is that there is nothing permitted to Jews that is prohibited to non-Jews.

  42. >>He/she should be fired. For one thing, both drugs have other indications. Methotrexate is used for cancer and autoimmune diseases, and the indication is never listed on any prescription I’ve ever seen. Misoprostol is used for labor induction and for treatment of gastric ulcers.

    Any pharmacist would know what the drug is being prescribed for. the number dispensed and the instructions for taking would be different in each case.

  43. R’ Charlie Hall,
    Yi’yasher kochakha and thank you for your important response. I value your analysis. At the same time, I note that when R. Bleich was asked in 2005 about the Tzitz Eliezer’s opinion to allow aborting a Tay Sachs baby, he responded:

    “If you ask me about serious poskim; I know what the answer is. Uh… This is considered to be a minority opinion, very interesting but not to be applied. I don’t know of any recognized posek who would adopt that position in terms of deciding a practical case.”

    http://www.yutorah.org/lectures/lecture.cfm/710209/Rabbi_Dr._J._David_Bleich/Contemporary_Bioethical_Issues_-_Part_2
    (11 minutes into the lecture)

    After saying that, R. Bleich is asked regarding the important question you raised where both the baby and the mother will die if no abortion is performed. Here, R. Bleich says that if we can predict with certainty the baby will not survive 30 days, it is a nefel and there is no prohibition of aborting the fetus. [He does note, however, an anomalous responsum of R. Eliezer Fleckles in Teshuvah me-Ahavah I, no. 43, who (strangely enough) believes that killing a nefel is also prohibited. R. Bleich is evasive as to whether or not he is concerned for this minority opinion of R. Fleckles.]

    Regarding a Western democracy not allowing abortion laws that distinguish between Noahides and Jews, I agree with you. It is not politically possible to pass such an constitutional amendment in a Western democracy given the current psychological mindset of humanity. Indeed, this is why the Agudath Israel refrained from forwarding this information to the U.S. Supreme Court in a 1989 case which reconsidered the legality of abortion (as discussed in Tradition 39:2, pp. 103-107). R. Feldman will say that this is a blessing, because R. Bleich (and the Agudath Israel) is mistaken and really Tosafot in Sanhedrin 59a never intended to distinguish between a Noahide and a Jew. R. Bleich, on the other hand, will presumably say (I’m speculating here) that – only after humanity evolves beyond the concept of a Western democracy and becomes more interested in obeying the Torah – then it will be possible to pass such a consitutional amendment.

    But even here, there is a note of evasiveness in R. Bleich’s response. In the previous part of that lecture (separately recorded at http://www.yutorah.org/lectures/lecture.cfm/710199/Rabbi_Dr._J._David_Bleich/Contemporary_Bioethical_Issues_ , at 23:20 into the lecture)
    R. Bleich discusses the catholic church’s “double effect” theory, which allows killing a baby as a side-effect of oncological medical treatment on the mother. R. Bleich explains that this opinion of the catholic church was derived from the progenitors of the catholic church who – in the times of Mishnah – were actually Jews transmitting the mesorah of the Noahide Code to non-Jews. R. Bleich explains that since there is an opinion that a pesik reisheih delo nichah leih is permitted for Noahides, therefore the catholic church arrived at a “sfek sfeka” conclusion that (a) maybe the halakhah is like the side of the Tosafot in Sanhedrin 59a that therapeutic abortion is permitted for Noahides; and (b) maybe a pesik reisheih delo nichah leih is permitted for Noahides. And so, what is the upshot if a Noahide obstetrician asks this question to a posek? R. Bleich answers “I’d prefer they go to somebody else.” [R. Bleich’s interesting conclusion sounds to me like what the Sages answered when they were asked a halakhic question by Achashverosh (as per the gemara in Megillah 12b), but I don’t know if R. Bleich is speaking tongue-in-cheek here.]

  44. Here is a key paragraph from Tradition 39:2 (p. 106) which encapsulates the above, written on behalf of the Agudath Israel:

    R. Goldwasser is right that protection of the right to abortion where pregnancy threatens the mother’s life… could result in abortions in cases where halakha would not permit them: for non-Jewish women, for whom halakha recognizes no “life of the mother” exception to the prohibition against abortion… However, under the American system of law, as R. Goldwasser correctly notes, “religious freedoms granted to one faith must be guaranteed to all,” and sometimes the only way to ensure that our halakhic rights are legally protected is to extend such protection beyond the precise parameters of halakha. That is one of the ralities of the imperfect world we inhabit as we await the arival of Mashi’ah.

  45. Sounds to me that if this would change upon the arrival of the mashi’ach, the world, in this respect, would be even more imperfect.

  46. The Talmud allows for lying in the case of maintaining peace (Yevamos 65b), humility (Bava Metzia 24a) and protection from someone else’s deception (link

    This list seems ripe for a “tzad hashaveh” argument.

    A careful one, of course.

  47. CHARLIE HALL:

    “He/she should be fired. For one thing, both drugs have other indications”

    spaced single doses?

  48. For what it is worth, I have recently posted about abortions in relation to the Noahide laws, particularly regarding extra-judicial implementation of punishment: http://mevaseretzion.blogspot.com/2011/05/extra-judicial-killings.html

  49. R’ Joseph Kaplan,

    Yi’yasher kochakha and thank you for your important response. If I may elaborate upon it, permit me to explain how I understand it. If R. Feldman is correct and R. Bleich is mistaken (regarding how to read Tosafot to Sanhedrin 59a), then – as you say – the world would be harmed by preventing Noahide obstretricians from performing therapeutic abortions. But on the other hand, if R. Bleich is correct and R. Feldman is mistaken, then the world will indeed be improved by preventing Noahide obstetricians from perfoming therapeutic abortions. Whatever the Torah says to do, by definition, is good. “Ein tov ela Torah”, as we are told in Pirkei Avot 6:3. Thus, the question is what the Torah says to do in this case (i.e. where the only way a Noahide obstetrician can save the life of the mother is to eliminate the fetus). And, apparently, this will depend on how to read Tosafot in Sanhedrin 59a.

    Does R. Bleich err? Definitely yes. For example, in his most recently recorded lecture (delivered just last Thursday) at
    http://www.yutorah.org/lectures/lecture.cfm/761178/Rabbi_Dr._J._David_Bleich/Ishus_#1_of_3
    at about 9 minutes into the recording, he cites his chapter on the device of the Sages of Spain as a means of preventing agunot. R. Bleich claims he published it in Contemporary Halakhic Problems Volume 4. Alas, that claim is contrafactual. It actually appears in Volume 3.

    Having established that R. Bleich errs, we can now ask: did R. Bleich err in his reading of Tosafot to Sanhedrin 59a?

  50. But, on the countervailing side, I suppose one could argue that the entire question of what will the Halakhah be in the messianic era is somewhat absurd, as per the objection “hilkheta le-meshicha?!” voiced by Tosafot in Yoma 13a. Since the gemara in Sukkah 52a seems to indicate that the Angel of Death will not exist in the messianic era, this may render the entire question of therapeutic abortion in the messianic era moot. In any event, leaving aside eschatology, there is a nafka minah today: if a Noahide obstetrician sincerely wants to follow Halakhah and he asks us for guidance, what do we tell him?

  51. Daniel Weltman

    I am not sure who “we” is. One should tell him to follow the Tzitz Eliezer. At least R Eliezer Berkovits would, and not simply because his teacher. See “Not In Heaven” pp 4-46, where he discusses his three super- or meta-halachik categories (arch-principles, I call them) which help decide what our approach should be in given circumstances. There are times when we need to seek out the view within the halachik system that is permissive, to remain true to Halacha’s arch-principles.

  52. MiMedinat HaYam

    r gil’s arguments (re deception) do not (halachically) overcome dina de’malchuta dina issues. (of course, he is only commenting re: the first things / catholic arguments.)

    2. charlie’s 1156am: the jersey sting is VERY different. there, the protagonist actively encouraged the sting, as opposed to a deception issue.

    which brings up the question of parameters of the deception permitted.

    3. nat lewin’s father proves the mishna right — start with the junior dayan and go up to the senior dayan. obviously, he did (?), but that only prompts discussions, which obviously led to the disagreement. but the mishna says add dayanim only where no decision is reached.

    4. for now, one can not be mandated to perform objectionable procedures (prescribing / filling). but the trend is the opposite. the future???

    5. according to machon puah, down syndrome (granted, not discussed yet) only occurs in 10% of cases where it is indicated, so they particularly object to those cases. what about other cases? are we / some going overboard?

  53. R’ Daniel Weltman,
    Thank you for your insightful response.

    1) When I refer to “we” (thank you for the excellent question), I refer to the concept enunciated by R. Bleich in his Benetivot Hahalakhah III, pp. 50-57 that Jews are obligated to provide halakhically accurate guidance to Noahides when so requested by Noahides.

    2) With all due respect to R. Berkovits zt”l, who was certainly a tzaddik gammur, I personally believe that R. Bleich is a superior posek. [Different tzaddikim gemurim can be of different stature, as Rava told two of his disciples in Sotah 31a.] Therefore, it is difficult for me to override R. Bleich’s conclusion on the exclusive grounds of R. Berkovits’ opposition. Nevertheless, I will be sure to read R. Berkovits’ excellent book and carefully study his case.

    3) That said, I do have difficulty with R. Bleich’s assertion that it is permissible to ask a Noahide obstetrician to perform a therapeutic abortion for a Jewish lady (since lifnei iver is permitted for piku’ach nefesh), even though R. Bleich continues that if the Noahide obstetrician were to ask us for specific halakhic guidance, we would have to tell him it is forbidden to perform the therapeutic abortion.
    http://www.yutorah.org/lectures/lecture.cfm/760488/Rabbi_Dr._J._David_Bleich/Questions_and_Answers_with_Doctors_part_5
    [R. Bleich also writes about this in Benetivot Hahalakhah III, p. 160.] To me, these seem to be two sides of the same coin. If we can’t pasken for the Noahide to do the abortion, we shouldn’t be able to “trick” him into doing it, either. When we “trick” the Noahide into performing a therapeutic abortion, we are giving the Noahide a de facto pesak halakhah, and the pesak halakhah must be accurate. The matter requires further investigation.
    As I mentioned on a previous occasion, for a methodologically similar reason I have difficulty with R. Bleich’s conclusion in Contemporary Halakhic Problems Vol. 4 that even though it is forbidden for a healthcare worker to drive home (or do any melakhah di’oraita on the way home) from a mission of mercy on Shabbat, neverthless if the moreh hora’ah knows that there won’t be enough volunteers in the future for healthcare missions and lives will lost if he does not let people drive home, the moreh hora’ah can let people drive home. To me, this is difficult: Since we cannot falsify Halakhah even to save lives, and since the Halakhah is that the healthcare worker cannot drive home, we cannot “trick” the healthcare worker into driving home in order to encourage him to volunteer in the future.
    And as mentioned on yet another previous occasion, for a methodologically similar reason I do not see how anyone can register for an organ today. Since – if the Noahide were to ask us whether it is permissible to harvest an organ from a neurologically dead patient – we would have to tell him it is prohibited, I don’t see how one can register to receive the organ. Registration is effect is giving a de facto pesak that the harvesting is permitted, which it is not. The matter requires further investigation.

Leave a Reply

Subscribe to our Weekly Newsletter


The latest weekly digest is also available by clicking here.

Subscribe to our Daily Newsletter

Archives

Categories

%d bloggers like this: