Abortion and the Igros Moshe

In recent days, there has been an effort to portray halakhic, Orthodox Judaism as sanctioning the pro-choice position as normative, largely in response to concerns over the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. One publication even went as far as to include testimonies of women who had abortions, identified as Orthodox Jews. In wake of these emotional and political appeals, we must clarify what Jewish sources have to say about abortion, and eschew polemical and partisan attacks on President Trump, Judge Kavanaugh, or Ben Shapiro. As we are American Jews, we will analyze key arguments made by R’ Moshe Feinstein, the preeminent American posek for decades, in his Igros Moshe, CM 2:69.

Exodus 21:22, the only mention of feticide in the Torah, reads: “And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine.” In pre-rabbinic Judaism, it was understood that the “harm” of the verse refers to the fetus. According to the Septuagint, the term “harm” applied to the fetus and not to the woman, and a distinction is drawn between the abortion of an incompletely formed fetus, for which there is a monetary penalty, and the abortion of a fetus which has assumed complete form – for which the penalty is death.

Philo of Alexandria (Special Laws 3:108-109) specifically prescribes the imposition of the death penalty for causing an abortion of a formed fetus: “But if anyone has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct Shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.” (Trans. Charles Duke Yonge, 1854-1890). Abraham Geiger deduces from this the existence of an ancient law according to which (contrary to rabbinic halakha) the penalty for aborting a fetus of completed shape was death (Ha-Mikra ve-Targumav, 280–1, 343–4).

The mistranslations of the Septuagint are not accepted in normative Judaism, and as such, we do not interpret the above verse as sanctioning capital punishment for feticide. Nonetheless, Judaism regards the sanctity of human life in all its forms, from insemination to the decomposition of dead remains. While the halakhot vary from stage to stage along this continuum, fetal life is regarded as precious and may not be destroyed wantonly. Abortion, because it is an affront against the sanctity of life, undermines our relationship with G-d and diminishes G-d’s presence in the world according to the Zohar.

While not a halakhic text, the Zohar (Shemot 3b) condemns abortion in no uncertain terms- “Man dekatil benoy, hahu ubra demit’abera iteteih, vegarim lekatala leih bim’aha, desatir binyaina dekudsha berich hu ve’umanuta dileih. It man dekatil bar nash. Veha katil benoy. Telata bishin avid dechol alema la yachil lemisbal, ve’al da alma mitmogega ze’eir ze’eir, velo yedia’, vekudsha berich hu istalik me’alma, vecharba vechafna umotana atyain al alma. Ve’illein inun. Katil benoy, satir binyaina demalka. Dachei shechineta, de’azla umeshatteta be’alema, vela ashkachat naycha. Ve’al illein, rucha dekudsha bacheyah. Ve’alma itdan bechol hanei dinin. Vav lehahu bar nash, vav leih, tav leih dela yitberei be’alma.”

“The third sin that drives the Shechinah (the Divine Presence) from the world is one who slays his children, meaning the fetus that his wife conceived, and causes it to be killed in her belly [by an abortion]. He thus demolishes the construction of G‑d and His craftmanship [for a fetus is formed with great craftmanship]. There are people who slay another person, and this one slays his own children. [Abortion causes] three evils to be done that the whole world cannot bear. Therefore, the world deteriorates little by little, although it is not known why. G‑d removes Himself from the world, and destruction and famine and death come to the world. These are the evils: he slays his children, he demolishes the construction done by the King and he repels the Shechinah, which roves in the world and can find no rest. For these evils, the Divine Spirit weeps and the world is judged. Woe to that man, woe to him, better that he was not created in the world.”

The preeminent American posek, Reb Moshe Feinstein, in his Igros Moshe (Choshen Mishpat 2:69) was adamant that abortion is not permissible except in an instance where halakha would mandate it, namely, where the fetus poses a direct threat to the life of the mother. Thus, there is no “choice.” One is either mandated to abort, where it appears halachically/medically necessary, or may not abort, where such a danger does not exist. He contended that the generally accepted view is that killing a fetus constitutes outright murder and is thus forbidden on the level of Torah law. As such, he maintained, it is permissible only when the fetus poses a direct, life-threatening risk to the mother, but not under other circumstances, even when the baby will suffer from a serious disease.

We learn that one must kill a fetus that is pursuing the mother’s life from the Mishna, Ohalot 7:6- “Ha’ishah shehi makshah leiled, mechatechin et havlad beme’eiha umotzi’in oto evarim evarim, mipenei shechayeiha kodemin lechayav. Yatza rubo, ein noge’in bo, she’ein dochin nefesh mipenei nafesh;” a woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.

Rambam, Hilchot Retzichah V’Shmirat HaGuf 1:9, codifies this under the guise of din rodef- “Lefikach horu chachamim sheha’uvrah shehi makshah leiled–mutar lachtoch ha’over beme’eiha, bein besam bein bayad. Mipnei shehu kerodef achareiha leharegah. ve’im mishehotzi rosho, ein noge’in bo, she’ein dochin nefesh mipenei nefesh, vezeh hu tiv’o shela’olam.” According to the Rambam, “For this reason, the sages ruled that in the case of a pregnant woman in a dangerous labor, it is permissible to abort the fetus, whether with a drug or by hand, because it is like a rodef pursuing her to kill her. However, once his head has emerged, one may not touch him, as we do not set aside one nefesh [soul] for another, and this is the natural way of the world.” Rambam says that the reason for allowing the abortion of a fetus is unrelated to whether it is considered killing, as Rambam says it is certainly murder. However, it is nonetheless permitted due to din rodef, which dictates that if someone threatens your life, you may kill them as a form of self-defense. Here too, the fetus is considered a person, and if he is threatening the life of his mother, he may be killed for this reason and no other. Rambam certainly maintains that a fetus may not be killed unless it is threatening the life of the mother.

R’ Moshe is adamant that abortion constitutes a form of murder. Din rodef permits one to kill someone who is threatening to murder someone else, and R’ Moshe says that by invoking din rodef to permit killing the fetus, Rambam was also teaching that a fetus is considered a living person. Only the status of a rodef permits one person to kill another person. Without this justification, the killing of a fetus would in fact be an act of murder, the same as killing any other person. R’ Moshe writes, explaining the Rambam: Meforash od yoter dahareigat uber hu retzichah mamash, sheharei katav ta’am al mah shebemaksheh layeled mutar lachtoch ha’uber shebim’iyah kedei lehatzil et ha’im mipenei shehu kerodef achareiha leharegah. “It is even more clear in the Rambam that killing a fetus is murder, for he based the permission to cut a fetus to save a mother on the fetus’s status as a pursuer attempting to kill her.”

Therefore, when not actually threatening the mother’s life, killing a fetus is murder: “Levarer sheharigat over asurah be’asur retzichah bein b’akum, bein b’yisra’el… Ul’chen l’dina… Ika issur retzichah maleh tirtzach gam al uber verak shepatur hahorego memitah.” Abortion is forbidden as murder both for gentiles and Jews … Therefore, the law is… that there is a complete prohibition of murder, derived from the verse, “You shall not murder” (Shemot 20:13), even regarding a fetus, except that the killer is not liable for the death [penalty]”. One may not abort when the life of the mother is not at stake. “Ve’asur lehargo af lifkoach nefesh dechol inshei verak lehatzalat imo shelo tamot b’lidato hu haheter velo bishvil shum tzorech deha’im shezeh asur bifshitot,” It would be forbidden to kill it even to save someone’s life. The exception would be to save the life of the mother during childbirth, not for any other need of the mother, which would be definitely forbidden.

Furthermore, there must be a preponderance of medical evidence, with great certainty, that the fetus would actually cause the mother’s death: “Laharog et ha’uber yihyeh asur ad shetihyeh ha’umdena leharofe’im gedolah karov levadai shetamut ha’em, dema’achar dahu mitzad shenechshav rodef tzarich sheyihyeh ke’ein vadai shehu rodef,” “Killing a fetus is prohibited until the doctors have great reason, close to certainty, that the mother will die. Since the permission is due to the fetus’s status as a pursuer, it must be near-certain that he is a pursuer.”

Reb Moshe’s position that we require “karov l’vadai” in order to abort a fetus that potentially threatens the life of the mother amounts to the shita that we may not kill a safek rodef; this principle was articulated previously by R’ Yitzchok Shor, Teshuvos Koach Shor 1:20. There, he writes that we cannot choose one life over another, the only exception being where one is a rodef. If we cannot certainly classify him as a rodef, and declare him a rodef “karov l’vadai,” we return to the original principle that you can’t choose one life over another. (In the same teshuva, he explains that in a case where a woman is pregnant and has an illness that cannot be treated while she’s pregnant, we cannot consider the fetus a rodef because the fetus is not threatening her life technically. The fetus is only preventing her treatment, and one who prevents a life-saving act is not considered a rodef.) The Achiezer, 3:72, also agrees that one may not kill a safek rodef; one may classify a pursuer as a rodef only if it is certain that the pursuer will kill the victim.  (The lenient shita of R’ Shlomo Zalman Auerbach, which allows one to kill a safek rodef, is weak. He argues based on the sugya of “Bo b’Machteres” that one should be able to kill a safek rodef, because the gemara (Sanhedrin 72b) says that one may kill the bo b’machteres (according to the gemara, if there is any doubt as to whether the ganav is prepared to kill you, you may kill him.  The only case where there is no doubt is when a son finds his father in the machteres), and seemingly, this is based on din rodef. However, the halakhot of rodef and bo b’machteres are not necessarily identical.)

In addition, Reb Moshe vehemently denies that there is any possibility to abort in instances of fetal anomaly or disease: “Daf ha’vladot she l’fi da’at ha rofeim hem ka’elu she’lo yihyu shanim rabot k’ha d’noldim eizeh yladim ba’machalah hanikret “Tay Sachs” afilu k’shenoda al yedei hebedikot ba’uber shenithadesh atah shehulad yihyeh vlad kezeh asur keivan d’lahem leicha sakanah ve’eino rodef ein lehatir afilu shehatza’ar yihyeh gadol me’od… Uvarur upashut kedichtavti halachah haberurah al pi raboteinu harishonim hamefarshim vehaposkim mamash she’asur badin retzichah mamash kol uber bein kasher bein mamzer bein stam ovrim uvein hayedu’im l’choli Tay Sachs shekulan asurin m’dina mamash.”

“Even for children for whom the doctors predict a very short life span, such as those children who are born with the disease called Tay-Sachs, which through newly developed tests can be diagnosed prenatally, it would be forbidden since there is no danger to the mother and the infant is not a rodef. One cannot permit an abortion even though there is very great suffering involved … It is incontrovertible and clear as I have written, a straightforward halacha according to the words of our Masters, the traditional commentaries and halachic authorities, that abortion would be forbidden as bona-fide murder, for any fetus; legitimate or a mamzer, genetically normal or afflicted with Tay-Sachs, are all included in the prohibition according to the law.”

Other poskim adopt a similar stance towards other anomalies. The Teshuvah meAhavah 1:53 (R’ Elazar Fleckeles of Prague) paskens that the killing of even a grotesque, malformed child possessing animalistic features constitutes an act of murder. Challenging the questioner’s view that the gemara’s suspension of the usual ritual impurity (tumah) following the emission of similarly malformed or animal-like embryos indicates that upon birth a child so formed should not be classified as a human being, he counters that this exclusion is limited to the laws of impurity applicable to miscarriages. The issue of a human mother, no matter how gravely deformed, enjoys human status and may not be destroyed either by overt act or by passively allowing it to die of starvation.

Likewise, Rav Isser Yehuda Unterman (former Ashkenazic Chief Rabbi of Israel), in Noam VI:1-11, in discussing abortion in the case of a mother afflicted with German measles, forbids abortion, on the basis that there is no distinction in halakha between normal and abnormal persons either with regard to the dinim governing homicide or with regard to the dinim governing feticide. Even when certain that a fetus lacks a limb, Rabbi Unterman equates terminating a pregnancy with killing a deformed human being. This holds true even prior to forty days of gestation. Rabbi Unterman then offers his own view: Parents only desire an abortion because of the burden inherent in raising a physically or mentally handicapped child. They are frankly not interested in such inconveniences. This is not a valid reason for terminating a pregnancy. Rav Moshe Yonah Zweig (Noam VII: 36-56) notes that in cases where the fetus may be deformed due to thalidomide exposure, we do not permit abortion. Abortion is permitted only for the health of the mother, which is not the case when the fetus possesses an abnormality. Here, the mother’s selfishness drives her to seek an abortion so as to not be burdened with this sort of child. Such parents mask their feelings by claiming that really they seek abortion to spare the baby from a life of suffering, pain, and so on. Rabbi Zweig finds no room for leniency in these cases; Reb Moshe reaches the same conclusion as these poskim, that we cannot abort due to such factors. There is no basis, according to these poskim, for the eugenic abortions on the basis of the health or disability of the fetus.

Reb Moshe addresses the position of Rav Eliezer Waldenberg, the Tzitz Eliezer (13:102), who permitted the abortion of a Tay Sachs fetus on the grounds that delivering such a fetus would cause the mother grief and constitute a health problem (basing this heter on the Maharit 1:99). Rav Waldenberg there stipulates that any abortion for health reasons should be permissible: Keshenishkefet sakanah le’ishah behamshachat haherayon yesh lehatir hapalat ha’uber beshofi. Gam keshemitzav beri’utah shel ha’ishah rofef me’od uleshem refu’atah o hashkatat mach’oveiha hagedolim darush levatzea hapalat ha’uber af al pi she’ein sakanah mamashit, gam ken yesh makom lehatir la’asot zot, uch’fi ro’ot einei hamoreh hamatzav shelefanav; “If there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation. Also, if her health is poor and to cure her or to relieve her from great pain it is necessary to abort the fetus, even if she is not in actual danger, there is room to permit it, based on the halachic authority’s evaluation of the situation.” Such a heter on the basis of non-life-threatening conditions is anathema to Reb Moshe.

Reb Moshe counters that the Maharit’s responsum, cited by the Tzitxz Eliezer as proof that one may abort where there is a health risk, must be falsified, as the Maharit paskened in 1:97 exactly the opposite, that abortion is generally not permissible, on the grounds that it constitutes chavalah (injury): “V’Katav sam haTosafot nehi d’patur al han’falim aval lo sharei…d’ha d’asur mi din chavalah hu.” He cites Tosafot (Chullin 33a, DH Echad Oved Kochavim V’Echad Yisrael Mutarin Bo) and Sanhedrin 59a (DH Leika Mi D’am d’le Yisrael Shari) that although one is not liable for killing a fetus, it is not permitted. The basis for the prohibition is the law forbidding causing injury.

Indeed, Reb Moshe cites as a second proof from the rishonim the words of Tosafot in Sanhedrin: Tosfos there asks, “V’Al ha’uberim d’oved kochavim chayav, v’yisrael patur?” Why are Nochrim Chayav for killing a fetus, even though a Yisrael is Patur? Tosfos answers that for the Jew, it is still prohibited: “af al gav, d’patur, mikol makom lo sarei.” Even though a Yisrael is Patur, he is nevertheless not permitted to do so. Reb Moshe understands this prohibition to be categorized as retzicha, or murder. There is nothing that for a Jew is permissible and for a non-Jew is prohibited. Tosfot derives from here that there must be a prohibition against abortion, one that is akin to murder. When Hashem commanded Noach, He meant to include Jews as well. Just because a Jew is patur from the death penalty does not mean that the abortion is permissible. (Tosafot there explain that in a case where the mother’s life would be saved by dismembering the fetus in the womb, it is a mitzvah for a Jew to do so- D’ha namei b’Yisrael mitzvah k’dei l’hatzil- and perhaps also for nochrim in such instances- v’efshar d’afilu b’oved kochavim sarei).

Given this view of Tosafot, Reb Moshe explains that the view of Tosafot explained in Niddah 44b (DH Ihu Mayit B’reisha) must be a taut sofer, a scribal error. In Niddah, Tosafot write that it is mutar to kill the fetus (Im timtzi lomar d’mutar l’hargo; d’mikol makom mishum pikuach nefesh mechalelin alav et hashabbat af al gav d’mutar l’hargo), and because this seemingly contradicts Tosafot in Sanhedrin, Reb Moshe explains that instead of “mutar”, or permitted, the text in Tosfos should have said “patur”, or exempt from punishment, yet still prohibited.

In conclusion: Given the gravity of abortion, and the immense sanctity of life, it is incumbent upon us to consider Reb Moshe’s shita and its implications fully. We learn that abortion is generally considered murder (although a Jew is not chayav misah, unlike a goy), and is only permissible due to Rambam’s invocation of din rodef. Cases of safek rodef are not pursued, in line with the Koach Shor and the understanding that we don’t apply the din of bo b’machteres in all cases to a rodef. Cases of fetal anomaly are inapplicable, as in such cases the fetus is not a rodef. Reb Moshe rejects proofs from the Maharit and Tosafos (Niddah 44b) cited by the Tzitz Eliezer to allow abortion of a Tay Sachs fetus or in cases where the mother’s health is involved, and instead argues that abortion is only moral where the life of the mother is directly at stake, beyond any doubt.