On categorical mistakes: A response to Rabbi Elli Fischer on abortion

In 1949 Gilbert Ryle coined the term “category mistake.” This is a type of mistake where someone is not able to differentiate between categories, and more specifically — they do not understand that one category is subsumed under another. The example he gave was someone walking into various parts of a university and asking where the university is. The visitor seems to have not understood that classrooms, lecture halls, and other facilities on campus are all subsumed on the category of “university.”

Rabbi Elli Fischer, in making the category mistake here, falls into the same trap that he decries: misrepresentation and miscategorization. Halacha is clear that abortion is not something which is permitted; rather, it is a prohibition.

There are two latent assumptions that can be found in the article:

1. The exception is the rule, i.e., because under a range of circumstances rabbis have permitted abortions, therefore, there no longer/never was a default position on the matter.
2. If abortion is not murder, then it must not be prohibited. This seems to emerge from the lengthy discussion devoted to this issue, despite the fact that Ben Shapiro (cited in the article) never made a blanket claim that abortion is equivalent to murder.

At the outset, let us examine a case which seemingly is undisputed:

The Torah tells us: “Thou shall not murder.” This establishes murder in the category  of prohibition. Although there are cases where killing another human being is permitted (e.g., self defense, capital punishment), it is nonetheless evident that murder falls into the category of “prohibited” despite the exceptions.

Surely the following statement: “The best answer to the question of whether Jewish law permits murder remains: It depends on the case, so consult with a competent halakhist…” (modified from the end of Rabbi Fischer’s article) may be an attempt at nuance, but actually is misleading and incorrect. The same is true about practically every prohibition in the Torah — Shabbat, kashrut, theft, abortion — these are clearly in the category of “prohibitions” (in fact, there are entire books dedicated to the specific enumeration of these categories). A good exercise would be to substitute any prohibition into the line above and try to see if it is true.

Rabbi Fischer goes on to mention a number of exceptions to the rule. These exceptions prove exactly the opposite of what he seems to be getting at; namely, they are what they sound like — exceptions! The rabbis being asked these questions about unfortunate circumstances do not seek to redefine what is prohibited (as Rabbi Fischer tries to do) — even those who are most lenient are careful to state that abortion is actually by default not allowed, and may be permitted only in certain circumstances.

It is interesting to note that while Rabbi Fischer does acknowledge the stringent approaches taken by leading 20th-century figures, as Ben Shapiro pointed out, he then goes on to qualify: “However, the practical record shows something more complex.” What he fails to mention is the very public stated position of most of those rabbis is very clear. They were not bashful in expressing how they felt, lest they betray the complexity Rabbi Fischer seeks. Why is that so? Why did my rebbe, Rabbi Aharon Lichtenstein, write a long article (also referenced in Rabbi Fischer’s article) for the purposes of legislation?! It is apparent that these rabbis felt the importance of publicly stating halachic principles as guiding lights to society. Does this hold true for every case? Surely not, but it does not exclude us from having stated beliefs and ideals. One gets the impression that for some, the opinions of the likes of Rabbis Soloveitchik, Feinstein, Lichtenstein, and others should be used only when convenient. What is surprising about this whole episode is that what Shapiro stated is old news, rather obvious.

If we analyze the initial tweets and the subsequent article that Shapiro published, what he is saying is clear: abortion is prohibited. That is true and correct, at least if you are to agree that theft, murder, Shabbat desecration are prohibited. Could he have phrased it with more clarity? Possibly. What is certain is that what he is saying is actually not wrong or misleading, as Rabbi Fischer is being.

I do not see a purpose in further quoting sources, as Rabbi Fischer and Shapiro quote most of the relevant sources (although Rabbi Fischer does not differentiate between mainstream approaches and marginalized ones). The question of whether a fetus is considered a life or not seems like a strawman — the case seems to be that Shapiro’s argument hinges on this, which it does not. Shapiro’s claim is simple: our guiding principle and point of departure should be that abortion is prohibited. This is articulated publicly by most of the leading authorities in our generation; why, then, does this bother Rabbi Fischer so much?

Two further points:

1) The purpose of this article is to demonstrate what I believe is a gross misunderstanding and political appropriation of halacha. Whether halacha is pro-life or pro-choice is less important. We need not fit our laws into the terms or frameworks of others. In Rabbi Fischer’s article, there seems to be an undercurrent of pandering to an eager, forward-thinking audience, which looks “to permit that which is prohibited.” Whether one likes Ben Shapiro or not should also not be relevant for this discussion. It’s pretty simple: halacha prohibits abortion. Reading any one of the articles while carefully looking at the sources will demonstrate that.

2) This article is in no way intended to be insensitive to those women who are dealing with the extremely difficult and terrible situations that are discussed in some of the literature mentioned. It is likewise not intended to diminish or simplify the dilemma or pass any judgment on those who act in accordance or not in accordance with halacha. We must always empathize with those who are dealing with hardship. This article is meant as a broad statement of a guiding principle and not as a directive on any one specific set of circumstances.

In conclusion, I would like to issue a disclaimer: I am a friend of Ben Shapiro’s and I have had the good fortune to learn Torah with him regularly. I find him thoughtful, intelligent, and someone who is one of the staunchest supporters of Israel in the public eye. This does not mean or imply that I necessarily agree with or subscribe to his views.

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Rabbi Elli Fischer’s article is here.

Ben Shapiro’s article is here.