BACKGROUND AND CONTEXT
The mishnah from Ohalot 7:6 that we studied in the previous unit (or a source quite similar to it) appears in another context in the Talmud, at Sanhedrin 72b. The subject raised there is an important one for Jewish ethics: the legal permission/obligation to save someone whose life is being threatened by another. In general terms, this ethical norm is rooted in the biblical verse, "Do not stand by at your brother's blood" (Lev 19:17). But the Talmud makes the obligation more concrete with a concept called the "pursuer" (רודף, rodef ). If person A (the pursuer) is trying to kill person B (the pursued), then person C may kill A, if necessary, to stop them from committing murder.
Since Rav Huna teaches that even a child may be considered a pursuer, the question comes up whether a baby mid-birth could be one. The answer will have important consequences for abortion in Jewish law. (The reference to "receiving warning" in this text is talking about how, most of the time, a person must be warned that the action they are about to take is punishable by death—otherwise, they may not be executed by a court. But cases of rodef, we learn, are different.)
אמר רב הונא קטן הרודף ניתן להצילו בנפשו
קסבר רודף אינו צריך התראה לא שנא גדול ולא שנא קטן
איתיביה רב חסדא לרב הונא יצא ראשו אין נוגעין בו לפי שאין דוחין נפש מפני נפש
ואמאי רודף הוא
שאני התם דמשמיא קא רדפי לה
Rav Huna said: If a minor [below the age of bar or bat mitzvah] is pursuing [rodef ] someone with the intent to kill them, it is permitted to save the person at the cost of the pursuer’s life.
[Therefore, we can deduce] Rav Huna holds the view that a pursuer does not have to receive warning [before being killed, since children are not legal adults and cannot be "warned"], regardless of whether the pursuer is an adult or a minor.
Rav Ḥisda raised an objection against Rav Huna [from an earlier, Tannaitic source]: "If its head has emerged, they do not touch [i.e., harm] it, since we do not set aside one life [nefesh] for another life.
But why not [kill that child]--it is a pursuer?!
That case is different, for they are pursuing her [the mother] from heaven.
Study Questions on Sanhedrin 72b
1. Try to explain the logic of the second paragraph. If you can kill a minor-rodef, why does it follow that you can kill any rodef—including an adult-rodef—without warning them?
2. How does Rav Hisda use an earlier text to dispute the idea that killing a child-rodef is permitted? Be specific.
3. How does the text that Rav Hisda quotes differ in one important detail from Ohalot 7:6 (3E)?
4. The Stam [anonymous part] of the Gemara responds to Rav Hisda's challenge by using the idea, "they are pursuing her from heaven." What do you think this means?
5. In your opinion, is the implication of this source that a fetus can sometimes be a pursuer? Explain your interpretation.
BACKGROUND AND CONTEXT
Below are three major Jewish authorities who commented on the passage from Sanhedrin 72b, Rashi (11th cent., France); Yad Ramah (Meir Abulafia, 12-13th cent., Spain); and Rambam (12th cent., Spain and Egypt). The first two wrote running commentaries on the Talmud itself, but Rambam's interpretation comes to us through the legal code he composed, the Mishneh Torah. They will all articulate some important views about the status of fetuses. Watch closely for the similarities and differences among them.
יצא ראשו:
באשה המקשה לילד ומסוכנת וקתני רישא החיה פושטת ידה וחותכתו ומוציאתו לאברים דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו אבל יצא ראשו אין נוגעים בו להורגו דהוה ליה כילוד ואין דוחין נפש מפני נפש
"If its head has emerged":
This is about a woman who is having difficulty giving birth and is in danger, and the earlier part of the quoted source says that the midwife reaches inside, cuts up the fetus, and removes it limb by limb. For as long as it has not emerged into the air of the world, it is not a life [nefesh] and it is permitted to kill it and to save the mother. But if its head has emerged, we may not touch it to kill it, for it has become like a born child, and we do not set aside one life [nefesh] for another life.
אבל כ"ז שהוא מבפנים לאו נפש הוא ולא חסה עליו תורה שהרי לא חייבה עליו מיתה דכתיב ויצאו ילדיה ענוש יענש
But as long as the fetus is inside, it is not a life [nefesh], and the Torah did not take pity on it [to protect it in the womb in this dangerous situation], for in fact it [the Torah] did not mandate the death penalty for [killing] the fetus, as it is written, "if there is a miscarriage...the one responsible shall be punished [with a fine]" (Exod 21:22).
אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף.
לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:
This is also one of the Torah's negative commandments: not to take pity on the life of a pursuer.
Therefore, the Sages taught that when a pregnant woman is having difficulty giving birth, it is permitted to cut up the fetus in her womb—whether by drugs or by hand—because it [the fetus] is like someone pursuing her to kill her. But once it brings forth its head, it may not be touched, for we do not set aside one life [nefesh] for another life, and this is the nature of the world.
Study Questions on Rashi, Yad Ramah, and Rambam
1. What central idea do Rashi and Yad Ramah share?
2. What proof does Yad Ramah use to make his case that Rashi doesn't mention here. Explain the proof.
3. What is the main way that Rambam differs from the other two authorities in his approach to understanding abortion?
4. Look at what you wrote as your answer to question 5 in the previous section of this sheet. Does it seem like Rambam agrees or disagrees with what you wrote? How so?
5. Rambam wrote, "and this is the nature of the world." What does this clause correspond to from Sanhedrin 72b, above? What change does he appear to make, theologically-speaking?
6. Do you believe Rambam would be stricter or more lenient than Rashi about allowing an abortion in situations where the mother's life is not threatened? Explain your thinking.