Halakhah к Шмот 35:1-40:38:2

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.