ABORTION AND THE HALAKHIC CONVERSATION
long disputed Rambam over the issue.?’ Indeed, leading poskim of our own generation are prepared to rule against Maimonides if the bulk of the Talmudic evidence seems to refute him.*® Second, the rule may not be acceptable in theory. Many halakhists prefer an alternative principle of decision-making, which holds that the contemporary poseq is entitled to rule as he sees fit on a legal question, to follow his own understanding of the Talmudic sources even if the giants of the past disagree with him. That right, supported by many leading sages including Rambam himself, is based upon the recognition that ultimate legal authority lies in the Talmud rather than in the decisions of postTalmudic sages and is regarded by some as the sine gua non of the halakhic process.* It is this independence, and not adherence to the views of one particular authority, that has characterized the abortion debate in the halakhic literature. This is not to say that Feinstein is"wrong" when he declares that halakhists ought to accept the opinion of Rambam - more properly, the most stringent possible interpretation of that opinion®- regardless of the persuasiveness of other options. But given that posgim past and present do not accept his assertion as a binding rule of halakhic decision, it is also difficult to establish that his approach is the better means of arriving at the proper halakhic ruling.
Feinstein's second mechanism is his dismissal of two halakhic sources - a passage of Tosafot and a responsum of Maharit- as scribal error or forgery. Waldenberg sharply rebukes Feinstein for this tactic, in language rarely heard in halakhic argument:
With all respect...no, sir. This is not the way. We live by the words of the great sages of the generations, each of whom has toiled by his own lights to resolve the words of Tosafot Nidah. And not one of them ever thought to take the easy way out(haderekh hapeshutah beyoter) and say there is a scribal error in the Tosafot, that in place of mutar (permitted) it must read asur(forbidden).