Halakhah su Levitico 24:21

R. Meir Simchah of Dvinsk, in his biblical novellae, Meshekh Hokhmah, Exod. 35:2, offers an interesting scriptural foundation for this prohibition, demonstrating that, while not a penal crime, the killing of a fetus is punishable by "death at the hands of heaven." ⁶However, cf. R. Samuel Strashun, Mekorei ha-Rambam le-Rashash (Jerusalem, 1957), p. 45, who writes that although feticide is biblically forbidden “perhaps there is no punishment even ‘at the hands of heaven.’ ” He observes that Scripture invariably refers to capital punishment by employing the formula "mot yumat—he shall surely be put to death." The use of the single expression "yumat—he shall be put to death" as, for example, in Exodus 21:29, is understood in rabbinic exegesis as having reference to death at the hands of heaven. Thus, R. Meir Simchah argues, the verse "and he that smiteth a man shall be put to death—yumat" (Lev. 24:21) is not simply a reiteration of the penalty for homicide but refers to such destruction of life which is punishable only at the hands of heaven, i.e., the killing of a fetus. Reference to the fetus as "a man" poses no difficulty since the fetus is indeed described as "a man" in the above cited verse (Gen. 9:6) prescribing death for feticide under the Noachide Code.

This responsum of Maharit is quite remarkable not only for his unique characterization of abortion but for another reason as well. Although there is no dispute regarding the exclusion of therapeutic "wounding" from the prohibition "Forty stripes he shall give him, he shall not exceed" (Deuteronomy 25:3), classical sources describing permissible therapeutic "wounding" invariably describe "wounding" in the form of an incision or excision designed to be of therapeutic benefit to the patient himself. There is no reference in these sources to the "wounding" of one person for the therapeutic benefit of another. Yet that is precisely what Maharit permits. He rules that "wounding" the fetus in the course of its removal from the uterus is permitted in order to preserve maternal health, i.e., the wounding of the fetus is permitted for the therapeutic benefit of another, namely, the mother.⁸⁷The statement of R. Dimi bar Hinena, Sanhedrin 83b, “‘And he who kills a beast, he shall restore it; and he who kills a man, he shall be put to death’ (Leviticus 24:21): just as one who strikes an animal to heal it is not liable for damage so if one wounds a man to heal him he is not liable,” does not necessarily establish authority to “wound” a person for the benefit of a third party. Cf., R. Moshe Meiselman, Halakhah u-Refu’ah, II, 114. Nor does Rambam’s statement, Hilkhot ḥovel u-Mazik 5:1, limiting the prohibition to wounding “in the manner of strife” necessarily exclude wounding for the therapeutic benefit of a third party. Moreover, Rambam’s comments may serve to circumvent only the prohibition against “smiting” but not the prohibition against “wounding,” i.e., causing blood to flow. See R. Moshe Meiselman, ibid., p. 115, but cf., Iggerot Mosheh, Ḥoshen Mishpat, II, no. 66. Maharit's position is even more problematic in light of the fact that the fetus is a "minor." In positing an extension of the prohibition against "wounding" to encompass the fetus, Maharit establishes a fetus' right to bodily integrity. Since the fetus certainly has no obligation to preserve the life of another, much less so to preserve the health of another, it is remarkable that Maharit finds that it is permissible to "wound" the fetus in order to avoid a threat to maternal health.⁸⁸In Teshuvot Maharit, no. 99, Maharit makes no attempt to predicate his ruling sanctioning abortion for preservation of maternal health upon the premise “a fetus is a thigh of its mother” (ubar yerekh imo). In the first lines of Teshuvot Maharit, no. 97, Maharit states that feticide constitutes a transgression of the prohibition against “wounding” and only later in his discussion does he employ the principle “a fetus is a thigh of its mother.” See also R. Yechi’el Ya‘akov Weinberg, Seridei Esh, III, no. 127, who cites the statement of Tosafot, Sanhedrin 80b, in which Tosafot declares that a fetus preserves “independent animation” and hence the principle “a fetus is a thigh of its mother” does not render the fetus a treifah simply because its mother is a treifah. Similarly, argues Seridei Esh, since the fetus possesses “independent animation” its destruction in order to save the mother is not comparable to the removal of a limb in order to save the body. It is certainly noteworthy that, although Maharit's thesis concerning the nature of the prohibition entailed in performing an abortion was the subject of considerable controversy, there has been no challenge in rabbinic literature to the conclusion he draws from that thesis, i.e., that the "wounding" of the fetus is permissible for the purpose of preservation of maternal life or health. Indeed, it must be inferred that the authorities who challenge Maharit's ruling on other grounds would acquiesce in the position that an assault upon the fetus that does not lead to fetal mortality may be sanctioned for the purpose of preserving maternal health. The rationale underlying that conclusion requires explication.