SELECTED REFORM RESPONSA
Still, Rashi by his explanation raises the possibility that we need not be too strict about saving an unborn child. In fact, there is some assistance to this point of view from the law(codified in Hoshen Mishpat 423), that if a man happens to strike a pregnant woman and the child is destroyed, he has to pay money damages for the harm to the mother and the loss of the child. But why should he not be guilty of a capital crime, having killed the child? Evidently one would conclude that the unborn child is not a nefesh in the sense that killing it would be a capital crime. Joshua Falk (16th-1 7th century), in his classic commentary Meirat Einayim to the passage in Hoshen Mishpat 425 (end of his section 8), develops the opinion of Rashi and says clearly,"While the fetus is within the body of the mother it may be destroyed even though it is alive, for every fetus that does not come out or has not come out into the light of the world is not described as a nefesh." He proves this from the case of a man who strikes a pregnant woman and destroys her unborn child. The man must pay damages, but is not deemed a murderer, which he would be if the fetus were considered a nefesh. Similarly, in Arakhin 7a, if a pregnant woman was condemned to death, she was smitten in front of her body so that the child should die before she was executed. This, too, would indicate that it is at least no capital crime to slay unborn children. However, the cases mentioned above are mitigated by various arguments given in the literature, and the actual law is that a fetus may not be destroyed, as is seen in the following: The Talmud , in Sanhedrin 57b, gives the opinion of Rabbi Ishmael that a Ber Noah(i.e., a non-idolatrous non-Jew) is forbidden to destroy a fetus. Itisa capital crime if he does it. The Tosafot to Hulin 33a say that this indicates that a Jew is not to be put to death(as a Ben Noach is) if he destroys a fetus, nevertheless, continue the Tosafot, while it is not permitted for him to do so.
There is a modern, scientific analysis of the law in this matter by Aptowitzer, in the Jewish Quarterly Review, New Series, volume 15, pp. 83ff. However. it is rather remarkable that the whole question of abortion is not discussed very much in actual cases in the traditional law. As a matter of fact, I found at first only three responsa which discuss it fully. There are others which I found later. The first responsum is by a great authority, Yair Haim Bachrach, of Worms, 17th century. In his responsum(Havat Yair,#31) he was
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