With this new Alabama law which outlaws most kinds of abortions, I have observed that the Orthodox Jewish community is more diverse in their opinions on abortion than I had previously imagined. I have heard many argue that being anti abortion is a Christian thing, and that halacha / Judaism is much more lenient on abortions. I won’t lie, I found this to be very surprising.

First, let’s examine a משנה in אהלות:

האשה שהיא מקשה לילד, מחתכין את הולד במעיה ומוציאין אותו אברים אברים מפני שחייה קודמין לחייו. יצא רבו, אין נוגעין בו שאין דוחין נפש מפני נפש.

משנה אהלות פרק ז משנה ו

The mishna says that in an event where a woman is having birth pangs that are life threatening – we chop up the fetus in her womb and take it out limb by limb – because the mother’s life takes precedence over that of the fetus. However, if most of his head is out – you can’t touch the baby because we do not kill one life for another.

We see from here that, up until the point of birth (judged by when most of the head is out of the womb) it is permitted to abort the fetus in a case where the mother is in mortal danger. 1

However, even the new Alabama law makes exception for instances where the mother is in mortal danger. Obviously, we are not talking about such cases. The cases in which there is meaningful debate as to whether or not having an abortion should be legal are as follows:

  1. In cases where the circumstances of the pregnancy are very unfortunate or inconvenient for the mother.
  2. In cases where the pregnancy is a result of rape or incest.
  3. In cases where severe birth defects are detected in the child.
  4. In cases where the child will not be viable anyways.
  5. Early on in a regular pregnancy before the fetus is formed
  6. Early on in a regular pregnancy before the fetus can feel pain
  7. Early on in a regular pregnancy before the fetus is viable outside the womb

We’ll be revisiting this list from time to time.

The Talmud in Sanhedrin 57b rules that a gentile is liable to get the death penalty for killing a fetus. Maimonides rules accordingly. 2

בן נח שהרג נפש אפילו עובר במעי אמו נהרג עליו

רמב”ם פרק ט מהלכות מלכים הלכה ד

Now, if such a case is forbidden for a gentile, it is certainly forbidden for a Jew (Sanhedrin 59a), regardless of whether the punishment differs. Now, I don’t think anyone is arguing for the death penalty in cases of abortion, and I’m certainly not arguing for it either. The point here is that the only clear rulings we’ve seen thus far from the Talmud (and these are the main sources that deal with abortion directly) seem to state that:

  1. It is permissible before birth where the mother is in mortal danger.
  2. It is a capital crime for a gentile and certainly forbidden for a Jew.

This is a far cry from the Jewish view being far more permissive.

So where do those who make such claims derive their views from? Are they all just utterly misinformed? Well some are, but as anyone who has studied halacha knows, things are always more nuanced than you originally thought – and we will soon see some of that nuance. But I think it’s important to start here, just to be clear where exactly the “burden of proof” is. We shouldn’t pretend like we’re going to find that the Torah is cool with “abortion on demand”. In fact, in our list of cases where we questioned whether abortion should be legal – it should be clear to everyone that case inconvenient circumstances are probably not going to cut it. So we should cross that one off our list. Also, rape and incest are also simply extreme cases of inconvenience, so unless we can find an explicit carve out, we should probably cut out that one too3 :

  1. In cases where the circumstances of the pregnancy are very unfortunate or inconvenient for the mother.
  2. In cases where the pregnancy is a result of rape or incest.
  3. In cases where there is a severe birth defects are detected in the child.
  4. In cases where the child will not be viable anyways.
  5. Early on in a regular pregnancy before the fetus is formed
  6. Early on in a regular pregnancy before the fetus can feel pain
  7. Early on in a regular pregnancy before the fetus in viable outside the womb

Let’s skip for now to case 5 – the question of whether one could have an abortion before the fetus is formed, this is an important question that can actually be re-asked in the form of “when is a fetus first considered a fetus?” Indeed, there is a Responsa from Rabbi Chaim Ozer Grodzensky (שו”ת אחיעזר חלק ג’ סימן ס”ה) in which this is addressed. The responsa is a lengthy one where he seems to respond to a questioner referred to as גדול אחד (a great man – i.e. one of the prominent rabbis of the generation) who seemingly sent him a letter with a ton of various unconnected questions. (We aren’t privy to the letter with the list of questions.) At the very end in the last paragraph, he writes:

ומש”כ כת”ר דלפני מ’ יום לקליטתו, דהוי מיא בעלמא לא איקרי נפש, יעוין ברמב”ם ס”פ מהלכות מ”ת דנפל אע”פ דלא נתקשרו גידיו מטמא, שנאמר הנוגע במת בכל נפש אדם ובמל”מ שם דבציר ממ,’ יום לא מטמא דלא איקרי נפש, ונראה דב”נ אינו נהרג על זה וגם בישראל אפשר דאין איסור מן התורה

שו”ת אחיעזר חלק ג’ סימן ס”ה

Basically the upshot, for those who didn’t read this, is that before 40 days from conception it’s not considered a fetus and a gentile is not liable for killing it – and possibly there is no Biblical prohibition4 against a Jew aborting such a fetus. Now as I understand it, the new Alabama law outlaws abortion once a heartbeat can be detected, which is at 6 weeks of pregnancy. This is 42 days – which is extremely close to the halachic cut off point according to the Rabbi Chaim Ozer Grodzensky.

Rabbi Moshe Feinstein writes at length that abortions are forbidden even in cases where there is a concern of medical harm to the mother ל”ע, that is not life threatening or where the fetus has been diagnosed with Tay-Sacks disease ל”ע. Notably, in volume 13 of his work ציץ אליעזר, responsa 102, Rabbi Eliezer Waldburg is lenient in such cases. He also discusses abortion at length in a special section he included in Volume 9 of his work ציץ אליעזר. (Much of what Rabbi Moshe Feinstein wrote is in response to Rabbi Waldburg’s responsa in volume 13. He ends his responsa with harsh words and says that any Rav that permits such a thing- שרי ליה מריה – his Master should forgive him.

Let’s return to our list of cases where abortion is controversial:

It seems there is some consensus that there is room to be lenient before 40 days. This is well before the fetus is viable outside the womb (6). When a fetus can feel pain and the subjective nature of pain could fill many pages – but it’s unlikely that this is the distinction between an a fetus and “just water”(7). It’s unclear what changes at 40 days. It is certainly not the formation of tendons – the poskim speculate as to what actually happens at 40 days – but it is not inconceivable that it has something to do with the formation of the fetus or the ability to detect a heartbeat – so 5 cannot be dismissed offhand.

Regarding cases where there are very severe birth defects detected that will would leave the child to live a very short painful existence (like Tay-Sacks disease) there is a dispute between Rabbi Moshe Feinstein זצ”ל and Rabbi Eliezer Waldburg זצ”ל.

  1. In cases where the circumstances of the pregnancy are very unfortunate or inconvenient for the mother.
  2. In cases where the pregnancy is a result of rape or incest.
  3. In cases where there is a severe birth defects are detected in the child.
  4. In cases where the child will not be viable anyways.
  5. Early on in a regular pregnancy before the fetus is formed (?)
  6. Early on in a regular pregnancy before the fetus can feel pain
  7. Early on in a regular pregnancy before the fetus in viable outside the womb

This is by no means an extensive list of sources on the subject but if one reads through both Rav Moshe Feinstein’s responsa and Rabbi Waldenburg’s you’ll see that they dealt at length with all the relevant sources.

Now that we have a basic understanding of the primary sources and how some of the recent halachic authorities approached the subject, we can resume all of our interesting conversations about the implications of עובר ירך אמו 5A dispute in the Talmud regarding whether a fetus is considered his/her mother’s limb or a separate being. It turns out this has surprisingly little to do with her right to have such an עובר terminated.[\note] and whether it’s considered murder or something else and all the other philosophical and ethical questions.

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  1. See תוס’ סנהדרין נט עמוד א where he is unsure whether this ruling is applicable to gentiles.
  2. For Jews it is not a capital crime, there is allot to unpack here, perhaps I will at a later time. That said, this would indicate that it is certainly forbidden for a Jew to have an abortion, based on the precept that there is nothing forbidden for a gentile to do that is permitted for a Jew (Sanhedrin 59a).
  3. for those who insist that, for some reason, rape and incest are obviously special cases this is addressed in the שו”ת ציץ אליעזר חלק ט in a קונטרס at the end dedicated to halacha and family planning. You should note that, as well soon see, the ציץ אליעזר is much more lenient on abortions than almost anyone – and it’s pretty much an non-starter.
  4. We should note that generally speaking, the inference is that there is a Rabbinical prohibition. At the time I am writing this, I am unaware of such a Rabbinical prohibition.

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