Many Orthodox individuals claim that abortion is a Torah prohibition just like murder! Is that so? Well, as an introduction to the subject, let us examine the definition of murderer given in Halachot of Murderer and Preservation of Soul (1, 1):

"Anyone who kills a human being from Israel transgresses a do-not-do Mitzvah, as said: 'Do not murder' [Exo. 20, 13]. And if he killed intentionally in the presence of witnesses, their penalty is death by sword, as said: 'vengeance shall be taken' [Exo. 21, 20] – it has been taught through the tradition that this is death by the sword, whether he killed his fellow with iron or burned him with fire, his death is by the sword".

Our Rabbi rules that anyone who kills a soul from Israel transgresses a do-not-do Mitzvah, and a question arises: A fetus that has already emerged from its mother's womb and also a fetus that is still in the mother's womb, are they considered a "soul" for which one transgresses this do-not-do?

A. A Fetus That Has Already Left Its Mother's Womb

From our Rabbi's words in Halachot of Murderer and Preservation of Soul (2:6) emerge that only a fetus born after a full nine months or beforehand but has survived for thirty days, only that type of fetus is considered a "soul", therefore, only someone who knowingly and in the presence of witnesses kills a fetus that meets one of these two definitions is executed for it:

"Whether one kills an adult or a small one-day-old child, whether male or female, he is executed if he killed with intent, or exiled if he killed unintentionally, provided that the months are completed for him. But if a child is born in less than nine months, it is considered like a stillbirth until he survives thirty days, and one who kills him within thirty days is not executed for it".

This ruling is also found in Halachot of Mourning (1:5): "No mourning is observed for stillbirths. And as long as did not survive thirty days is considered a stillbirth, even if he dies on the thirtieth day – there is no mourning. And if it is known for certain that he was born after a full nine months, even if he dies the day he is born – mourning is observed for him".

Note that in relation to someone who hires a murderer to kill another person, also the one who hires is not executed for it in court, even though our Rabbi emphasizes that "he is a blood spiller and holds the transgression of killing, and is deserving of death by Heaven". In contrast, regarding the killing of a fetus that has already left its mother's womb (before completing nine months of pregnancy and before reaching thirty days) our Rabbi is content with the statement that "he is not executed", without adding anything else! Our Rabbi does not label the killer as a "blood spiller" nor that he holds the "transgression of killing" or is "deserving of death by Heaven".

Here are the words of our Rabbi in Halachot of Murderer and Preservation of Soul (2, 1–2): "Anyone who kills another person with his own hands, such as by striking him with a sword or with a stone, or by strangling him until he dies, or by burning him with fire, since he himself killed in any manner – he is executed in court. But one who hires a killer to kill another person, or sends his servants and they killed him, or binds his fellow and places him before a lion or the like and the beast kills him, as well as one who kills himself – each of these is a blood spiller, and holds the transgression of killing, and is deserving of death by Heaven and yet they do not incur execution by court".

In summary, only a fetus that has emerged from its mother's womb after completing nine months or after living for thirty days is considered a "soul" and whoever kills him liable to a death penalty. However, a fetus that emerges from the womb before completing nine months and before living thirty days – is not considered a "soul". Therefore, someone who kills such a fetus intentionally and with witnesses is not executed for it, and our Rabbi even refrains from saying that he is a "blood spiller" or "holds a transgression" or "is liable for death by Heaven".

B. A fetus that has not yet emerged from its mother's womb

Since even a fetus that has emerged from its mother's womb is not considered a "soul", only until completing its months or after living thirty days, it is clear as day that a fetus that has not yet emerged from the womb at all is not considered a "soul". For this reason, the judgment regarding one who kills a fetus in the womb is not stated in Halachot of Murderer and Preservation of Soul, but rather in Halachot of Saboteur and Vandal (4, 1–2), and thus the Sages Z"L and our Rabbi rule:

"If someone strikes a woman and her children come out, even though he did not intend [and obviously if he did intend to cause harm], he is required to pay the value of the birth to the husband, and damage and sadness to the woman. How is the value of the birth calculated? They assess how much the woman was beautiful before she gave birth, and how much she is beautiful after she gave birth, and they give to the husband".

Our Rabbi rules "even though he did not intend", and obviously that his intention here is to include even someone who intended to deliberately harm and kill the fetuses in the woman's womb. It follows, that killing fetuses that have not yet emerged from the womb is not considered "killing" but rather "damage". And in other words, the status and standing of the fetus are at most like any other organ of the human body – and I say "at most" because the physical importance of the fetus is less than that of all other organs, since after the fetus is aborted, the woman continues to function physically as usual, unlike the situation if she were to lose or have damaged any of her other organs, such as an eye, hand, or leg.

Moreover, if the killing of fetuses was considered "murder", this Halacha should have been included in Halachot of Murderer and Preservation of Soul, which encompass all the Halachot concerning murderer, whether unintentional or intentional. Therefore it is clear that the killing of fetuses in their mother's womb is not considered "murder" but rather "damage", because fetuses are not considered a soul.

In light of this, the Halacha in Halachot of Kings and Wars (9, 6) can also be understood: "A Noahide who kills a soul, even a fetus in its mother's womb – is executed for it". That is to say, why does our Rabbi say "even" concerning a Noahide who kills a fetus in its mother's womb? Because if a fetus were already considered a "soul", why is it necessary to say "even"? Certainly that our Rabbi's intention is this: A Noahide who kills a soul, and even if he kills a fetus in its mother's womb that is not considered a soul – is executed for it (Incidentally, if the Sages Z"L were strict with a resident foreigner who unintentionally killed a fetus and decreed a death sentence for him, of course that one must be strict with an ordinary gentile whom we are not commanded to sustain, especially when he deliberately attacked and killed a fetus in its mother's womb).

For the reason why the Sages were strict and decreed death for a gentile who unintentionally killed a fetus in its mother's womb, see: "Is Compassion and Equality for All an Expression of Humanity?" (in Chapter 2: 'The Judgment of a Gentile Who Killed an Israeli'); "Is There an Obligation to Be Compassionate with Refugees?", and there in Chapter 4, I explained that concerning gentiles: if there is doubt – there is no doubt.

Returning to our subject, another important evidence that a fetus in its mother's womb is not considered a "soul" we find in Halachot of Sanhedrin (12, 16), and thus our Rabbi's words: "Once a person is sentenced, one shall not delayed but must be executed on the same day. Even if she [the condemned] is pregnant, they shall not wait for her to give birth. Instead, they strike her opposite the womb so the fetus dies first. However, if she is sitting on the birthing chair [=in labor] they wait until she gives birth".

In short, we see repeatedly that a fetus in its mother's womb is not considered a soul, and the reason for delaying the execution of a woman sitting on the birthing chair is not due to the fetus but out of consideration for the woman. And it is important to add that it is as clear as day that there has never been such a woman in the history of the Jewish people, meaning, a pregnant woman who was convicted with witnesses and warning of a crime punishable by death (hence the Sages said that a Sanhedrin that executed one person every seventy years was called 'deadly'). It is obvious that the main purpose of this Halacha is to distance the Israeli nation from sin, so they may live good and happy lives and fulfill their purpose.

"But this thing I commanded them, saying, hearken unto My voice, and I will be your God and you will be a nation for me; and you will walk in all the way that I command you, for your own good" (Jer. 7, 23).

Incidentally, if justice is not carried out below it will be carried out above, and during the terrible and dreadful torment of our nation, indeed, such horrific things occurred: "Because I know the tragedy that you will do unto the people of Israel: their strongholds will you set on fire, and their young men will you slay with the sword, and will dash in pieces their little ones, and rip up their pregnant women" (Kings 2 8, 12).

C. A Pregnant Woman Who Has Difficulty Giving Birth

Although, from the following Halachot, it is evident that the Sages R.I.P prohibited killing a fetus in its mother's womb, and thus the Sages and our Rabbi rule in Halachot of Murderer and Preservation of Soul (1, 8–9):

"It is a not-to-do Mitzvah to have mercy on the life of a pursuer. Therefore, the Sages instructed that if a pregnant woman has difficulty giving birth, it is permitted to cut the fetus within her, whether with medicine or by hand, because it is like a pursuer trying to kill her. But if its head has emerged, one may not touch it, for we do not set aside one soul for another, and this is the natural order of the world".

From this Halacha, two de'rabanan precepts emerge: 1) It is forbidden to kill a fetus in its mother's womb, as the Sages took care to explain that killing the fetus is only permitted "because it is like a pursuer" etc., and of course the infant does not have the status of a pursuer according to the Torah, otherwise it would be permissible to kill it even after the head has emerged; 2) The fetus is defined as a "soul" already when its head emerges, but according to the precept of the Torah, as stated, only after it has completed its months or has lived for thirty days.

Moreover, Sages likened the precept regarding a pregnant woman sitting on the birthing chair to the precept of a pursuer, solely to ensure that people would not take pity on the fetus, and as our Rabbi rules: "It is a do-not-do Mitzvah to have mercy on the life of a pursuer". This means, Sages could have ruled that one must save the woman and no more, since the Torah established that the fetus is not defined as a "soul", and even the Sages Z"L did not claim that a fetus in its mother's womb is defined as a "soul" except after it has emerged its head. However, the Sages Z"L understood that they needed to compare this difficult situation to the precept of a pursuer to hasten people to save the woman and dispel any compassion for the fetus from among them. In greater detail: Since compassion for infants is very strong, the Sages Z"L equated this infant to a pursuer-murderer to remove compassion for it from ourselves, because such wrong compassion is a severe cruelty towards the woman.

In short, one should not infer from the comparison to the precept of a pursuer that the infant is considered a "soul", and it was only permitted to kill it because it endangered its mother's life, and we have seen many Halachot and evidences that refute this assumption. And furthermore, it is possible that the Sages Z"L did not even prohibit killing a fetus in its mother's womb since it is not considered a "soul", and all the comparison to a pursuer was made as stated, only to spur people to show care and compassion for the woman.

D. When is a Woman Considered Pregnant?

Sages Z"L and our Rabbi rule in Halachot of Forbidden Relations (9, 5):

"What is a pregnant woman? When her pregnancy is recognizable, [and when is her pregnancy recognizable? After] three months have passed".

This precept is Torah's precept, and its foundation in Genesis (38, 24): "And it came to pass about three months and it was told Yehuda, saying" etc. Meaning, only after three full months have passed can a pregnancy be surely determined or denied.

That is to say, a woman who has conceived and is now at the beginning of her pregnancy, before three months have passed, is not considered pregnant! And in other words, during these three months she is not included in the prohibition that the Sages Z"L have established above, according to which it is forbidden to kill the fetus during birth. It is clear that the above-mentioned Halacha applies only to a pregnant woman, as stated in the Halacha: "A pregnant woman who has difficulty giving birth", etc.

And this principle, that a woman who has conceived is not considered "pregnant" until three months have passed, is reflected many times in the Oral Torah, for example, see: Halachot of Matrimonially (18, 14), Halachot of Levirate Marriage and Halitza (1, 19), Halachot of Levirate Marriage and Halitza (1,22), Halachot of Levirate Marriage and Halitza (8, 6), Halachot of Forbidden Relations (20, 18–19), Halachot of Forbidden Relations (21, 14). Meaning, this is a Torah precept as clear as the sun in the desert.

Here's additional evidence:

In Halachot of Forbidden Relations (16, 9) the Sages Z"L and our Rabbi rule: "And a woman is permitted to drink roots that sterilize her until she will not give birth", and obviously that this Halacha is stated for a married woman, since an unmarried woman does not need to sterilize herself, because how would she become pregnant? This raises a significant question: Why were the Sages not concerned that this married woman seeking to sterilize herself might already be pregnant? Why did the Sages not emphasize that the woman should wait three months to ensure she is not pregnant? If it were prohibited to kill the fetus in the mother's womb, they would have instructed her to wait at least three months.

Beyond all this, certainly the earlier words of the Sages: "that one shall not push aside one soul for another" refer to a fetus that could survive at that time. Meaning, a fetus that has not yet completed six months is not considered a life, even if its head has emerged, since it has no chance of surviving, as our Rabbi's ruling in Halachot of Circumcision (1, 15): "One who is born in the seventh month of pregnancy, if born whole, is considered a viable baby", etc. This means that everything mentioned in the Halacha above regarding a pregnant woman applies to a baby that has a chance of surviving, that is, that has completed six months. According to this, the whole prohibition by the Sages against killing the fetus applies only from the end of six months onward, but before that, there is no prohibition at all!

Briefly, the prohibition arising from the Sages words in the Halacha of a pregnant woman pertains exclusively to a viable baby.

E. Abortion is not murder!

In light of all the Halachot mentioned, a very-very important conclusion emerges, which is that abortion is not murder! And anyone who says that abortion is murder and means to say that it is forbidden by the Torah to abort a fetus, is adding to the laws of the Torah, and his judgment is very severe, as our Rabbi rules in the ninth foundation of the thirteen foundations of our religion:

"And the ninth foundation, the abrogation. That the Torah of Moshe will never be abrogated, and no other Torah will come from God besides it, nor will anything be added to it or subtracted from it, not in the writing nor in the interpretation, as it says: 'Do not add to it and do not subtract from it' [Deut. 13, 1]. And we have already explained what needs to be explained regarding this foundation in the introduction of this treatise […] and when a person doubts [even just doubt] a foundation of these [thirteen] foundations, then he excluded himself from everyone and denied the fundamental principle, and is called a heretic and an Epicurus and is eradicating its roots, and it is obligatory to hate and destroy him, and about such it is said: 'Do I not hate, Lord those who hate You? those who rise against You – do I not quarrel with?' [Psa. 139, 21]".

Incidentally I would comment on the Republicans who claim that "abortion is murder", Well, those who spread weapons (even automatic ones) in city streets out of greed, and causing inconceivable grief and immense suffering to thousands of families and even endangering the existence of society as a whole, should not hypocritically boast about sparing fetuses.

F. The ruling from the Halacha

From conception until six months have passed – it is permitted to terminate a pregnancy; however, after six months have passed, it is prohibited from de'rabanan to terminate a pregnancy. Now I will add, explain and summarize why it is appropriate to rule this way:

The Sages R.I.P prohibited killing the fetus when it regards a woman defined as pregnant and during childbirth, but they determined according to the Torah, that a woman who has conceived and less than three months have passed is not considered pregnant, and they even permitted a woman to sterilize herself and they did not concern that she might be in the early stages of pregnancy – Therefore it is certain that there is no prohibition, not even de'rabanan to stop a pregnancy before three months have passed since conception. Moreover, the prohibition against killing the fetus, which is implicitly learned from the fact that the Sages Z"L had to permit its killing by equating the baby's precept to the precept of a pursuer is undoubtedly relative to a viable fetus, i.e. a fetus that has reached his seventh month (because the Sages say about this baby that emerged headfirst: 'one shall not push aside one soul for another', and it is unthinkable that the Sages would call a non-viable baby 'a soul') – And therefore, since it is viable, the Sages Z"L stood up to permit its killing before its head emerged. In other words, the Sages certainly did not speak about a non-viable baby, i.e. about a pregnancy that has not yet reached its seventh month, and since we have from the prohibitions of the Sages only what they expressly prohibited, it should be permitted at the outset.

Furthermore, it may also be permitted afterward, since everything the Sages R.I.P prohibited is regarding a pregnant woman who is sitting on the birthing chair, and not regards to every pregnant woman. That is to say, that ruling I decided above does not actually relate to the prohibition established by the Sages, and it is far safe distance from the prohibition of the Sages.

Beyond all this, as this is a de'rabanan prohibition, there is no shadow of a doubt that it is permitted to terminate a pregnancy if there is a risk of severe physical or mental harm to the woman or the girl, especially in cases of unwanted pregnancies at a young age, because giving birth in such cases could severely disrupt the continuity girl's life – since such a stain might accompany her for many years, and sometimes such mishaps can even destroy entire families. Ultimately, the decision should be made solely based according to the best interest of the woman or girl.

"And what great nation is there that has righteous statutes and judgments [and our Rabbi says in the Guide (2, 40): 'And you already know that the matter of 'righteous' – 'balanced'] as this entire Torah that I set before you today' (Deut. 4, 8)".