A Supreme Leak: Abortion Rights (and Wrongs), Part II

Adapted from the writings of Dayan Yitzhak Grossman

May 20, 2022

 

In the previous article, we noted that the Torah discussion of abortion comprises two closely intertwined questions: the theoretical and conceptual question of the basis and rationale for the general prohibition of abortion, and the practical and concrete question of under what circumstances abortion is permitted. In the final section of that article, we briefly addressed the former; here, we address the latter.

In American political discourse, within the camp that maintains that abortion is not a fundamental right and that abortion on demand should be prohibited, exceptions that are commonly granted include situations of rape, incest, and danger to the life and health of the mother. We shall see that halacha has roughly analogous discussions, but with substantial differences.

(It should be understood that the halachic literature on this topic is voluminous and complex, and our article is but a brief survey of a few of the particularly important and interesting rulings on the topic. Additionally, many authorities distinguish between various stages of pregnancy, and are more lenient during earlier stages than in later ones; this article only mentions these distinctions in passing.)

Life of the mother

As we mentioned in the previous article, it is universally accepted that a fetus may be aborted in order to save the life of the mother. This is explicit in the Mishnah:

If a woman is having trouble giving birth, they cut up the child in her womb and take it out limb by limb, because her life comes before the life of [the child].[1]

The Mishnah proceeds to qualify this dispensation:

Once most of it has emerged, they do not touch it, for one may not push aside one soul for another.

The Gemara in Sanhedrin cites a breisa: Once its head has emerged, they do not touch it, for one may not push aside one soul for another. The Gemara asks: Why, he is a pursuer (who may be killed to save the life of his quarry)! The Gemara answers: It is different there, because it is Heaven that is pursuing her.[2]

Health of the mother

Some infer from “because her life comes before the life of [the child]” that abortion is only permitted when the mother’s life is in danger, but otherwise the fetus’s life must be respected,[3] and there are major authorities, one of the most prominent of which is R’ Moshe Feinstein,[4] who indeed insist that nothing short of danger to the mother’s life, not even danger to her health and well-being, can justify abortion.

Other authorities, however, do maintain that a therapeutic need of the mother can justify abortion even in the absence of any danger to her life. One of the most important of these is R’ Shneur Zalman Fradkin (of Lublin, author of Toras Chessed), whose lenient stance R’ Ovadia Yosef considered to constitute “considerable basis (makom rav) to permit [abortion] at least in case of illness, even when there is no danger to the mother.”[5] R’ Ovadia accordingly permits abortion in such a case within the first three months of pregnancy.[6]

R’ Eliezer Yehudah Waldenberg (the Tzitz Eliezer), perhaps the most lenient major recent halachic authority on the subject of abortion in general, rules:

Even when the state of the woman’s health is very precarious, and in order to heal her, or to assuage her great pains, it is necessary to abort her fetus, although there is no actual danger, there is also basis (makom) to permit doing so, in accordance with the ruling authority’s judgment of the situation that is before him.[7]

R’ Moshe Tzuriel goes so far as to claim that “most of the poskim of our generation have permitted abortion even when there is no danger to the mother.”[8]

Rape and incest

A number of authorities have discussed the possibility of permitting the abortion of a fetus conceived out of wedlock, by either a single or a married woman, based on a variety of considerations which are beyond the scope of this article.[9] Particularly intriguing is the ruling of R’ Yosef Chaim of Baghdad (the Ben Ish Chai), who prefaces his response to a question of this nature with the caveat that he is “unwilling to respond in the form of hora’ah, neither to prohibit nor to permit,” then briefly cites the major early precedents on the question, and concludes by reiterating that

I have already said that I am not adding anything of my own on this subject, and I am not revealing my opinion, and I have merely presented the aforementioned words before the questioner, and he shall show these words of mine to some scholar, and he will teach him what to do.[10]

Abnormal fetuses

In a lengthy and comprehensive article on the topic of abortion, the Tzitz Eliezer states his opinion that

If there is a well-founded concern that the child that will be born will emerge deformed and suffering, one may take the side of permitting (yeish letzadeid lehatir) the performance of an abortion before forty days have passed since her conception, and even before three months have passed and there is not yet fetal movement.[11]

In a subsequent ruling on the specific case of a fetus diagnosed with Tay-Sachs disease, he allows its abortion until seven months into the pregnancy, provided that the procedure does not entail any danger to the mother.[12]

R’ Moshe vehemently rejects this ruling of the Tzitz Eliezer (in uncharacteristically sharp language, presumably due to his conviction that we are dealing with murder):

It is clear and obvious as I have written, the clear halacha according to our teachers, the Rishonim, the commentaries, and the poskim, that it is absolutely prohibited under the law of murder, [to abort] any fetus, whether legitimate or mamzeir, whether ordinary fetus or one known to [be afflicted with] the disease of Tay-Sachs, and they are all absolutely prohibited according to the law, and one should not err and rely on the responsum of this scholar (the Tzitz Eliezer), and may his Master forgive him for this.[13]

R’ Yehuda Dovid Bleich (writing in 1968, and so aware only of Rav Waldenberg’s remarks in his earlier teshuvah, but not his later ruling regarding Tay-Sachs, which is dated 5735 (1974)) comments:

Rav Waldenberg is the only authority who deems abnormality of the fetus to be justification for interruption of pregnancy and even he stipulates that the abortion must be performed in the early stages of pregnancy…Rav Waldenberg permits such termination of pregnancy within the first three months following conception provided there is yet no fetal movement.[14]

R’ Moshe Tzuriel, however, argues that the positions of the numerous authorities who are lenient in other contexts of abortion support the possibility of aborting a fetus diagnosed with a severe illness, and he accordingly concludes:

It is therefore appropriate for us to provide support to those parents who are brought by the pressure of circumstances to seek out a heter to abort the fetus. It is not appropriate to publicize with excessive resolution and vehemence that the prohibition is unanimously absolute…[15]

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[1]Ohalos 7:6.

[2]Sanhedrin 72b. See R’ Y.D. Bleich, Abortion In Halakhic Literature, Tradition Winter 1968 Issue 10.2, pp. 87-94.

[3]See Shu”t Maharit cheilek 1 siman 97. Cf. n. 5 in the previous article.

[4]Shu”t Igros Moshe C.M. cheilek 2 siman 69 end of os 2 s.v. Velachein ledina.

[5]Shu”t Yabia Omer cheilek 4 E.H. siman 1 os 8.

[6]Ibid. os 10.

[7]Shu”t Tzitz Eliezer cheilek 9 siman 51 end of sha’ar 3 end of perek 3 summary os 10. Cf. Rav Bleich ibid. pp. 94-96.

[8]Hapalas Ubar She’uvchanah Etzlo Machalah Kashah, Techumin 25 os 5.

[9]See the discussions and surveys of earlier sources in Tzitz Eliezer ibid. perek 3, and Rav Bleich ibid. pp. 102-104.

[10]Shu”t Rav Pe’alim cheilek 1 E.H. siman 4.

[11]Tzitz Eliezer ibid. end of os 9.

[12]Ibid. cheilek 13 siman 102.

[13]Igros Moshe ibid. at the end. Rav Waldenberg responded to R’ Moshe and vigorously defended his position in Tzitz Eliezer cheilek 14 siman 100, and cf. ibid. simanim 101-02.

[14]Rav Bleich ibid. p. 105.

[15]Rav Tzuriel ibid. os 7 III.