ABORTION AND THE HALAKHIC CONVERSATION

43. Feinstein offers his own resolution, based upon Yerushalmi Sanhedrin 8:9; see note 21, above. Similar in method to Soloveitchik's, this explanation concludes that"Rashi, too, would agree."

44. Maharit, Vol. 1, no. 97. 45. Tzitz Eliezer, Jerusalem , 1975, Vol. 13, no. 102.

46. Beit Yosef, Introduction. This tendency is especially pronounced in Sefardic communities. See, in general, R. Ovadyah Yosef in Sefer HaYovel leRav Yosef Dov Halevy Soloveitchik, Jerusalem , 1984, pp. 267-280. On the Sefardic "reception" of Rambam 's Mishneh Torah as"the" authoritative key to halakhic decision see Y.Z. Kahana, Mehkarim BeSifrut HaTeshuvot, Jerusalem , 1973, pp. 8-88. On the similar"reception" of Caro's Shulhan Arukh, see Menahem Elon , HaMishpat Halvri, pp. 1139-1144.

47. Tzitz Eliezer, Jerusalem , 1985, vol. 14, no. 100. Waldenberg lists a number of those who disagree with Rambam , including the Sefer Me'irat Einayim(16th century; see note 18), who lived"close to the period of the rishonim." He writes:"I am astonished that[Feinstein] either ignores or does not notice these great posqim." He also relates an anecdote reporting that R. Haim Soloveitchik considered the words of R. Akiva Eger (who as we have seen also has problems with Rambam 's ruling)"as though they were the words of one of the rishonim."

48. On the abortion issue, see R. Yehiel Ya'akov Weinberg, Seridei Esh, Jerusalem , 1966, Vol. 3, no. 127.

49. See Rambam 's Introduction to the Mishneh Torah: when one of the post-Talmudic sages(all

of whom he calls geonim) interprets the Talmud in a way that contradicts the opinion of another gaon, the law is in accord with the more persuasive argument. No sage is compelled to follow the rulings of another merely upon the latter's authority. The classic statement of this position is that of R. Asher b. Yehiel, Hilkhot HaRosh, Sanhedrin 4:6. On the subject of rabbinic independence in legal interpretation see Joel Roth, The Halakhic Process: A Systemic Analysis, New York , 1986, pp. 81­114.

50. See note 39, above: some halakhists resolve Rambam in favor of leniency.

51. A pun, playing on the words tameah("to be amazed") and tamei("impure, defiled"); cf. Lev. 13:45.

52. Waldenberg refers to R. Haim Benveniste(d. 1673), a student at Trani 's academy in Constantinople who cites the"suspect" responsum(vol. I, no. 99) without objection in his Knesset HaGedolah to Yore i De ah 154, no. 6. This, says Waldenberg , is evidence that the responsum is genuine. a

53. Waldenberg , among others, has resolved the apparent contradiction between Maharit's responsa no. 97 and no. 99 so as to maintain Trani 's stance permitting abortion in situations when the mother’s life is not at risk. See Tits Eliezer, Vol. 9, no. 51, part 3.