Monday, March 07, 2005

Abortion II

In a comment to this post, someone suggested that since, within the Jewish worldview, gentiles are subject to an absolute prohibition against abortion, the nuanced permissions to Jews are irrelevant. We must oppose abortion because the overwhelming number of abortions in America are prohibited gentile abortions. Whether this is good policy, i.e. favoring a stance that, if adopted, will disallow abortions that are halakhically permitted and maybe even obligatory, is questionable. However, even more questionable is the claim that the prohibition of abortion for gentiles, i.e. Noahides, is absolute.

R. Immanuel Jakobovits, Jewish Medical Ethics, p. 187:

According to the Talmud and MAIMONIDES, as we have mentioned, the Noachidic dispensation regards the killing of an embryo as murder. Consequently, there is some doubt whether the sanction of therapeutic abortions can be extended to non-Jews, too. While TOSAPHOTH tended to recognise no difference between Jews and Gentiles in this matter, TRANI held that a Jew must not be an accomplice to the abortion of non-Jews...
R. Jakobovits seems to be saying that it is a matter of dispute whether therapeutic abortions are prohibited for gentiles. However, he does not delve into this matter in particular depth and it is not entirely clear to me that he quotes any source prohibiting it.

R. David M. Feldman,* Birth Control in Jewish Law, p. 261:
Therapeutic abortion is not, of course, included in this Noahidic restriction.[51] Many have specified, moreover, that an abortion during the first forty days of pregnancy is also not included.[52] A significant Responsum from eastern Europe of the eighteenth century dealt with the matter of B'nai Noah in its own way, offering us in the process a fine insight for the modern-day debate on the "human" status of the embryo:
It is not to be supposed that the Torah would consider the embryo as a person [nefesh] for them [Sons of Noah] but not a person for us. The foetus is not a person for them either; the Torah merely was more severe in its practical ruling in their regard. Hence, therapeutic abortion would be permissible to them, too...[53]
Abortion, to sum up the immediately foregoing, is not murder, neither for Israelites not for "Sons of Noah," except that by special decree, so to speak, capital liability attaches to the latter when the act is done without the justification of saving life. Presumably other justifications, defined below, would likewise be admissible.

[51] See on, Koah Shor and Tosafot. But cf. Minhat Hinnukh to No. 291, who raises theoretical queries. The author of Mishneh LaMelekh, in his Parashat D'rakhim, No. 2, cites Trani to the effect that B'nai Noah may not risk their lives to perform what is to them a mitzvah, based on ya'avor v'al yehareg in Yad, Y'sodei HaTorah 5,4. See also Jacob Ginzberg, Mishpatim L'Yisrael, pp. 161-231.
[52] Resp. Torat Hesed, E.H., No. 42:33 (although his line of reasoning requires the conclusion that the foetus has aspects of nefesh after forty days). Also, Resp. Beit Sh'lomo, H.M., No. 132; Zweig in Noam, II, 53; Weinberg in Noam, IX, 214. On the 40-day time distinction, see below, Notes 79-80.
[53] R. Isaac Schorr, Resp. Koah Shor, Vol. I, No. 20 (dated 1755).
And, more recently but more briefly, R. Aharon Lichtenstein, Leaves of Faith, vol. 2 p. 244 (from an article of about 15 years ago):
To return for a moment to the violation of homicide and the proof from Noahide law, it seems to me that the Noahide is liable in those instances where the fetus has developed to the point of independent viability (outside the uterus) at the time... In the early stages of pregnancy, however, the missing element of full human life is not merely that birth has yet to occur, but the absence of full development and the fact that in its current state the fetus is not viable outside the womb.
It is true that there is a great debate over whether abortion is ever murder, something that R. Lichtenstein outlines fairly clearly, even if without adequate footnoting. You should be able to detect different positions in the above quotes. Note that R. Feldman's institutional affiliations (discussed below) should not be assumed to be behind his view that abortion is never murder. I have heard the same in the name of unquestionably Orthodox sources (e.g. R. Mordechai Willig).

UPDATE: R. Ovadiah Yosef, Yabi'a Omer, vol. 4 Even Ha-Ezer no. 1 section 10, states that, like a Jew, a gentile may have a therapuetic abortion within the first three months of pregnancy to alleviate a non-fatal illness.

* Some readers may question why I am quoting a JTS graduate who served in a Conservative pulpit his entire career. I play the denominational/ institutional-bias game very well (probably too well) but I've know R. Feldman for most of my life and know very well his erudition, honesty and acceptance in Orthodox circles. His book is considered a classic of Jewish medical ethics by anyone who knows anything about it.

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