Abortion Within Limits

R. Moshe Zuriel’s recent article on abortion is surprisingly lenient and requires a response. First, I caution all readers that on all matters, particularly those as sensitive as this, you should consult with your rabbi and not rely on internet rulings. More to the point, I contend that R. Zuriel’s statement that when it is known that a child will not be born completely healthy “parents may rely on the abovementioned Rabbis who permit abortions … until the child exits its head during childbirth” does not appear to be in accordance with normative halakhah.

R. Zuriel argues that the prohibition of abortion is rabbinic in nature. Therefore, we should adopt “the lenient position” when a child will be born unhealthy. However, his argument that abortion is not Biblically forbidden is insufficiently justified and simply wrong according to almost all rishonim. Additionally, his references to lenient positions among the “Great Sages” and “Recent Sages” are inaccurate, and the actual potential for leniency discussed in the poskim is not mentioned.

A. Abortion is a Torah prohibition

There are no rishonim who describe the prohibition of abortion as rabbinic. It is only Achi’ezer (3:65:14) and Torat Chesed (EH 43:31) who ascribe such an opinion to the Ran (Chullin 58a [Rif pagination]), although the Ran makes no explicit suggestion to this effect. Ironically, it is precisely the Talmudic passage that R. Zuriel quotes to support his contention that likely lead most rishonim to conclude that abortion is actually biblically forbidden. The Talmud (Sanhedrin 59b) notes that anything biblically proscribed to Gentiles is certainly prohibited to Jews as well, even if not explicitly mentioned, since “there is nothing [leika mid’am] that is permissible to a Jew and prohibited to a Gentile.” The Torah’s 613 commandments are not separate from, but rather built upon, the basic 7 mitzvot Bnei Noach. In this context, Tosafot (s.v. leika) comment that this argument applies to abortion; even while only listing the prohibition of abortion for Gentiles, the Torah certainly forbids it to Jews as well.

If not sufficiently explicit in Tosafot’s comments, the continuation of the Talmudic passage makes clear that the principle of leika mid’am must operate on the level of Torah prohibitions. The Talmud proceeds to question this premise from two seeming leniencies applicable to Jews but not Gentiles – eshet yefat to’ar and stealing less than a shavah perutah – concluding that the difference in each case reflects local factors particular to each halakhah. If leika mid’am only operates on a rabbinic level, the Talmud’s question is nonsensical. Contrary to R. Zuriel’s suggestion, the simple reading of the Talmud would suggest that abortion is indeed prohibited to Jews on a Torah level.

R. Zuriel seemingly supports his argument by quoting poskim who offer rationales for the prohibition other than murder. However, even they – in avoiding describing abortion as murder – nonetheless all still categorize abortion as biblically prohibited – be it wasting seed (Chavot Ya’ir 1:30) or wounding (Maharit 1:97, 99).

B. Rambam’s opinion

In the course of his analysis, R. Zuriel mentions Rambam sparingly. This makes sense given that R. Zuriel’s thesis appears to be odds with Rambam’s approach. When the Mishnah (Ohalot 7:4) permits (perhaps even requires) aborting a fetus to save its mother’s life, it appears to be functioning within the basic rubric of pikuach nefesh, which demands violating Torah prohibitions in course of saving (or even trying to save) a life. Rambam (Rotzeach 1:9) however, adds a small caveat – explaining that is permissible to kill the fetus because he or she is similar to a pursuer – rodef. While the pikuach nefesh mandate is broad in permitting otherwise forbidden actions, it does not allow violating the ‘three cardinal sins,’ including murder. The only exception to this rule is during a pursuit. When a perpetrator is actively chasing his victim, the victim’s life may be saved at the expense of the perpetrator’s. If abortion involved any other prohibition, pikuach nefesh alone would permit its violation. In describing such a fetus as similar to a rodef, Rambam seemingly makes clear that abortion involves some type of killing, since short of such a situation, the prohibition of murder cannot be abrogated.

Most commentators take this general approach to understanding Rambam’s position, with each offering his own particular nuance and flavor. Some poskim try to interpret Rambam differently, relying on extreme perspectives and frankly, highly creative assumptions. The general consensus however, is clearly in the former camp. Even those who ultimately offer lenient final rulings must nonetheless contend with Rambam’s approach. Importantly, Shulchan Arukh (CM 425:2) quotes Rambam’s opinion verbatim as normative practice.

C. Other Sources

Citing a wide variety of sources, R. Zuriel contends that his position is well accepted by the greatest of our poskim. This is simply not the case.

• Radvaz (2:695) is quite clear in rejecting the notion that abortion involves murder. However, he is also clear that the prohibition is certainly Torah based in nature.
• Maharit (1:97) describes abortion as a prohibition of wounding (chavalah) [not bal tashchit] – a certain Torah prohibition – and has no relevance to the question of whether or not one may wantonly destroy property.
• R. Uziel (Mishpetei Uziel 3:46) indeed permits abortion in extreme but not life-threatening situations, but bases his permissive ruling on creative physiological assumptions that are not accepted by either the medical or the Rabbinic communities.
• Similarly, R. Shaul Yisraeli issues a permissive ruling (Amud ha-Yemini, no. 32) although predicated on the premise that killing can sometimes be permitted with the victim’s consent – a position rejected by the general consensus of poskim.
• Even while R. Yechiel Ya’akov Weinberg (Seridei Esh 3:127) initially issued a permissive ruling in non-life threatening situations, as a practical matter, he later retracted and concluded stringently (Seridei Esh 1:162:43 addendum).
• While R. Ovadiah Yosef (Yabia Omer EH 4:1) suggests the possibility of combining lenient rulings in certain circumstances, R. Zuriel himself (in the Hebrew version of the article) notes that R. Yosef concludes that abortion is indeed a Torah prohibition and permits it only when the mother’s life is at risk.
• Contrary to R. Zuriel’s general permissive stance up until the moment of parturition, none of the poskim cited permit abortion during the later months of pregnancy for any reason other than to save the mother’s life.

In this presentation, R. Zuriel notes R. Moshe Feinstein’s general approach of describing abortion as murder and quickly dismisses it as incorrect, having addressed the issue more fully in his linked Hebrew version (PDF). In the Hebrew text, R. Zuriel explains R. Feinstein’s argument as predicated on a novel interpretation of two responsa of Maharit. Indeed, R. Feinstein contended that one of those responsa is not reliable and read the latter in a unique light. R. Waldenberg already took R. Feinstein to task on that point. R. Zuriel simply highlights and summarizes R. Waldenberg’s critique and thereby dismisses R. Feinstein’s entire approach. He then briefly addresses two additional points in R. Feinstein’s argument, admitting that while R. Feinstein may in fact be correct on those points, there are other valid approaches to dealing with these other issues.

However, R. Feinstein’s argument deserves greater attention.

R. Feinstein’s main point (Iggerot Mosheh CM 1:69, YD 2:60:2) is advancing a complex original understanding of Rambam’s opinion predicated upon an intensive analysis of the rules of rodef and the particular circumstances in which they are suspended (see Yerushalmi Terumot 8:4). In fact, in his original responsum on abortion, R. Feinstein does not even mention Maharit’s opinion but only deals with it in a later responsum, and even then, only as secondary to his main focus. As R. Zuriel notes, many have cavalierly dismissed R. Feinstein’s novel take on Maharit’s argument. However, R. Feinstein’s main argument lies elsewhere and must be addressed before being rejected.

D. Lenient Perspectives

R. Zuriel argues, that since in his opinion abortion is a matter of rabbinic prohibition, we should therefore adopt “the lenient position.” We already discussed the nature of the prohibition, but the rest of the sentence also requires comment. Almost all poskim who arrive at “lenient” conclusions believe that in truth, abortion is a Biblical prohibition, but one that is set aside in particular circumstances.

R. Waldenberg is known as one of the most vocal proponents of leniency in this regard and argues that abortion (during the first few months of pregnancy) violates the Biblical prohibition of chavalah (wounding) (Tzitz Eliezer 9:51:3-4, 14:100, 20:2, 21:29); as such, it cannot be simply dismissed or otherwise set aside. Rather, in particular circumstances, when meeting specific criteria, there is room for a potentially permissive stance.

According to most poskim, a person can perform chavalah for medicinal purposes, even for those which are not lifesaving. The Biblical prohibition against chavalah requires damaging or otherwise harming a person; when done to enhance, treat, or cure, the very same action is not included in the prohibition. Abortion, for R. Waldenberg, entails the chavalah of the mother and therefore, when necessary for treating, curing, or otherwise enhancing the wellbeing of the mother – it is permissible.

He further argued that preventing the difficulties, challenges, and sometimes misery and agony of caring for a sick child is an example of enhancing the life of the mother. For R. Waldenberg, it’s up to the parents to say that raising a child with such severe disabilities is simply ‘too much for them to handle,’ that they cannot envision the difficulty that would be placed upon them because of this as-of-yet-unborn child’s special needs. If so, chavalah (and hence abortion) is justified as promoting the mother’s future wellbeing.

While it is the unborn child who will ultimately be physically or mentally afflicted in some way, it is the parents’ wellbeing that R. Waldenberg argues can justify abortion. It also means that the parents are given a chance to rise up to the challenge, if possible, to care for a child who will almost certainly need an abundance of caring. The focus is completely on the family’s ability to cope with the difficulties inherent in caring for a sick child, not the child’s challenges. We don’t and frankly can’t make any presumptions for the unborn child; even according to R. Waldenberg’s relatively lenient stance, Halakhah only takes the needs and abilities of those who are already born into consideration. Under very particular circumstances, R. Waldenberg permitted an abortion when caring for a sick child would harm the wellbeing of the parents, and even then, only up until the 6th month of pregnancy.

E. Conclusion

There is virtual unanimous agreement that abortion is prohibited by Torah law, even while the poskim debate the precise nature of the prohibition. In my opinion, there is no justification for leniency simply because of their disagreement.

Many poskim adopt Rambam’s approach and describe abortion as some type of killing.

Poskim who advocated “the lenient opinion” most often understand abortion to be a form of chavalah and permit it only is particular circumstances when raising a seriously ill child will harm the wellbeing of the parents.

Most importantly, abortion is a serious matter of the highest order whose violators are “better off not having been born” (Zohar Shemot 3b). It is therefore dangerous for the lay reader, particularly one dealing with the emotional turmoil of such a situation, to read Rav Zuriel’s presentation and neglect obtaining guidance from their own rabbi. Taking this grave sin as a mere rabbinic stricture runs the risk of viewing this sin overly lightly, as something easily abrogated. Readers may even come to advocate leniency in all cases of abortion – a position which R. Zuriel would certainly reject.
Even R. Waldenberg, in advocating for one of the most lenient approaches to abortion within the rabbinic world, is careful to conclude his responsum with strong words of admonition (Tzitz Eliezer 9:51:3):

כל בני ישראל מוזהרים באזהרה חמורה לא לנהוג קלות ראש בהפסקת ההריון, ואחריות גדולה מוטלת בזה הן על השואל והן על הנשאל. מלבד מה שיש בזה משום גידור פרצת הפרוצות והזונים אחריהם שגם אומות העולם גדרו עצמם בזה ותיקנו תקנות ועונשים חמורים על העוברים והמסייעים, וישראל קדושים המה.
All Jews are warned strictly not to terminate pregnancies lightly. A great responsibility is placed on both the inquirer and the responding rabbi. In addition to this, there is an aspect of guarding against those who breech behavioral boundaries that even the gentiles do not cross but rather legislate against it and punish harshly those who transgress. And Jews are holy (and should be at least as careful).

Choosing to abort a baby is a complicated and emotionally charged decision. It most certainly should not be made based on an article you read on the internet but rather only with rabbinic consultation, guidance, and care.