ABORTION AND THE HALAKHIC CONVERSATION

however, this distinction disappears, and we apply the Mishnah's rule that"the nefesh of one person does not override the nefesh of another."

There is, of course, nothing unusual in the fact that R. Haim Soloveitchik seeks to resolve an apparent contradiction between Rambam 's ruling and its Talmudic source. The resolution of difficulties(yishuv kushyot) has been a staple of rabbinic intellectual activity since the days of the Talmud and the midrash. Indeed, the Mishneh Torah, a fascinating blend of linguistic simplicity and legal complexity, has attracted more than its share of commentators, critics and defenders alike.*® Still, R. Haim differs significantly from the rest, and we can glimpse that difference by comparing his approach to that of R. Yair Bacharach, who as we have seen also resolved the law in favor of Maimonides . Bacharach never strays from a plain reading of the text. When he claims that Rashi 's interpretation of the Talmud concords with Rambam 's, he does so on the basis of what Rashi actually says: the fetus"is not a nefesh and it is permitted to kill it to save its mother." Reading this statement literally, Bacharach opines that in Rashi 's view it is only in order to save the mother that the fetus may be aborted. This is a plausible reading of Rashi 's words, but an arguable one, for Rashi here is explaining the case under discussion, the dangerous childbirth of M. Ohalot 7:6. In this case the fetus is aborted clearly because the mother's life is in jeopardy. He says nothing about other cases, and it is possible that he holds that under different circumstances the fetus, as a"non-person," may also be sacrificed on the mother's behalf*’ Soloveitchik's approach is both more powerful and more problematic. It is more powerful in that it removes any ambiguity in Rashi 's position. When Rashi explains that the abortion is warranted because the fetus"is not a nefesh," this may now be read according to R. Haim's two-part definition of personhood: the fetus, while outranked by the mother(a nefesh gamur), is yet enough of a"person" to claim an equal right to life. If so, then Rashi must agree that the fetus, like other persons, forfeits this right only by virtue of a crime or transgression such as"pursuit." Under this construction. more lenient understandings of the halakhah such as that offered by Maharit become impossible to maintain. It is at the same time more problematic in that, in a real sense, it ignores the Talmudic text. Soloveitchik's shnei dinim method

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