MARK WASHOFSKY

33. San. 73a. 34. San. 74a and Rashi, s.v. ma'i hazit. 35. See Hilkhot HaRosh, Yoma 8:13, and Nishmat Avraham, Orah Hayim 330, no. 19.

36. Aharon Jellinek, Kuntres HaRambam, Vienna, 1893, lists over 200 separate works of commentary on the Mishneh Torah. The production of such works has continued apace in this century; witness the writings of Soloveitchik , R. Yosef Rosen(7zofnat Paneah) and R. Meir Simchah of Dvinsk(Or Sameah). As Menachem Elon puts it,"the major part of the hiddushim literature in this century assumes the form of commentary upon Rambam 's Mishneh Torah," HaMishpat Ha Ivri, Jerusalem , 1989, 3rd edition, p. 930, n. 104.

37. Thus, in fact, is how those authorities who rule permissively on the abortion question, such

as Mabharit, read the Talmud and Rashi. Both the restrictive and permissive constructions are essentially arguments from silence: Rashi does not refer to non-mortal circumstances at all. The question turns on the issue of which phrase in Rashi's comment can said to be the"controlling" one: that"the fetus is not a nefesh" or that"it is permitted to kill it to save the mother"?

38. These include R. Issar Yehuda Usiterthian,§ in No'am, vol. 6, 5723/1963, pp. 1-11, and R. Moshe Feinstein , discussed below.

39. See note 18, above. See also R. Haim Ozer Grodzinsky, Ahiezer, vol. III, no. 72, sec. 3, who points out that Rambam calls the fetus a rodef only after childbirth has begun. Only at that point, when it has become a"separate entity"(gufa aharina, see Arakhin 7a), do we need the element of"pursuit" to Justify the abortion. It follows that prior to childbirth, this"non-person" might be aborted in situations other than mortal danger. R. Benzion Ouziel, Resp. Mishpetei Ouziel, vol. IIL, Hoshen Mishpat, no. 47, adopts this same reasoning. Unterman, op. cit., objects on the grounds that Rambam never draws a distinction between the fetus before and during childbirth. True; but then, neither Rambam nor the Talmud ever explicitly draws the distinctions among pursuers and persons which Unterman, following Soloveitchik , would have us accept.

40. Igerot Moshe, Hoshen Mishpat, Bnei Brak , 1985, vol. 2, no. 69. The responsum is written to his son-in-law, R. Moshe David Tendler, whom we encountered above.

41. Feinstein argues that the text should be emended to read patur hahorgo,"the one who kills

[the fetus] is not liable to execution,” which still supports the conclusion that abortion is a prohibited act. To repeat, not all authorities hold that abortion is forbidden to Gentiles. For a survey of centuries of rabbinic discussion of this Tosafot passage, see A.S. Avraham, Nishmat Avraham, Hoshen Mishpat 425, pp. 220-221.

42. Feinstein mentions Bacharach's responsum as well as the novellae of R. Akiva Eger (d. 1837) to M. Ohalot 7:6; see at note 19, above.

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