MARK WASHOFSKY

Unlike a person on trial for a capital offense, a rodef may be killed without prior adjuration if such is necessary to save his intended victim. Rav Huna applies this rule to a minor as well as to an adult. Yet, as Rav Hisda notes, this last provision is apparently contradicted by M. Ohalot 7:6, which declares that the fetus whose birth threatens its mother's life may not be harmed once it has emerged from the womb. The Talmud resolves this contradiction by distinguishing the case: difficult childbirth is not an instance of"pursuit" as normally understood. The mother's life is threatened by"an act of God", an unfortunate occurrence of nature. The law of the rodef does not apply to this child upon its emergence from the womb.

Yet why, if the child may not be harmed upon emergence, does the mishnah permit an abortion while the fetus is in utero? The commentators offer two lines of response. According to Rashi:"

The first part of the mishnah states that the fetus may be dismembered, for as long as it has not emerged it is not a nefesh and it is permitted to kill it to save its mother. But once its head has emerged we may not destroy it; at this point it is considered as already born, and one nefesh does not override another nefesh.

Rashi and those who follow his approach'* explain M. Ohalot 7:6 on its own terms, quite distinct from the discussion in Sanhedrin 72b. The mishnah confers the term nefesh, which denotes the legal status of personhood, only upon a child who has been born. Only at that point does one become a full member of the human community and enjoy all the protections that pertain to the"person." All"persons" are equal under the law. Thus, one person may not be killed in order to save the life of another." The fetus, however, is not a nefesh and does not benefit from the full status of personhood.'® In a conflict between fetus and mother, we can and do judge between them, sacrificing the former to save the latter. An abortion is permissible, in other words, due to the inferior status of the fetus and not because it is defined as a"pursuer."

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