MARK WASHOFSKY

the absence of any threat to her life, there is no acceptable warrant for abortion. Were we to reject Rambam , however, in favor of Rashi's approach, we might suggest that the warrant for abortion lies not in a situation of mortal danger but in the the inferior legal status of the fetus. If that view is adopted, it is possible to imagine circumstances other than threat to maternal life where abortion might be permitted.

An example of"other" circumstances is provided by R. Yosef Trani (Maharit; d. 1639), whose responsum is the earliest#alakhic discussion of a case of elective abortion.” The questioner asks whether a Jew , presumably a physician or midwife, may abort the fetus of a Gentile woman. Is such a thing prohibited as murder or homicide(bud nefashot)? Trani permits the abortion, for a Jewish woman no less than for a Gentile. This is not, he stresses, a case of homicide, since the fetus is not a nefesh. He cites among other proofs® the mishnah in Arakhin 7a, which declares that a pregnant woman who is condemned to death is executed immediately upon the conclusion of the legal process surrounding her trial. The court does not wait for her to give birth; her fetus is executed with her. The Talmud , notes Trani, considers this point to be obvious and wonders why it needed to be stated. After all, the fetus is"a limb of her body"(gufah hi). The answer is that, since Exodus 21:22 specifies that one who causes a woman to miscarry owes compensation to her husband, the mishnah comes to tell us that the prisoner is executed despite her husband's economic interest in the fetus. Indeed, the Talmud goes on to say that an abortion is performed upon this woman prior to her execution, on the grounds that the emergence of the fetus following her death is considered nivul hamet, a desecration of the corpse. If the honor shown to a dead body takes precedence over the life of a fetus, writes Trani, then surely abortion cannot be considered homicide. Rather, he concludes, the abortion is permitted for purposes of the mother's"need"(tsorekh imo) or"healing"(refu'at imo).

Important here is that Maharit frames the issue of abortion entirely within the rubric of status, as established by Rashi's comment to Sanhedrin 72b. The question of whether to destroy the fetus is addressed exclusively as a function of its lack of legal personhood. There is no mention of Rambam , no

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