Hospital administrators agonize over the allocation of limited medical supplies; city officials weigh the risk of an outbreak against the crushing cost of a prolonged lockdown. While these questions emerge from medical scenarios, they are essentially insoluble by medical means.
A man, let’s call him David, is a paramedic. His wife, Abby, has Multiple Sclerosis.
A few months ago, these two facts had little bearing on each other. Since then, they have collided with sudden force. Abby’s condition is the result of an immune system that has turned on itself, leaving her inadequately equipped to combat the assault of bacteria and viruses around her. Now, as an infectious disease sweeps through their city, every call David takes is weighted with a possibility almost too dreadful to consider: If he tries to go out and save another life, he may wind up bringing the contagion home with him. Does he abandon his sacred work to protect his wife or take the call and roll the dice?
Every day, thousands of healthcare and essential workers are forced to make similar choices. Hospital administrators agonize over the allocation of limited medical supplies, while city officials weigh the risk of an outbreak against the crushing cost of a prolonged lockdown. This pandemic has made ethicists of us all.
While these questions all emerge from medical scenarios, they are essentially insoluble by medical means. A doctor can explain what the ventilator does, an epidemiologist can predict how many are needed, and a technician can keep them working, but if there’s only one left, who gets to decide which patient to hook up first? Having pushed off from the terra firma of technical-scientific expertise, stocked only with a few solid facts—like expected rates of recovery and effects of prior medical histories—we are now mostly on our own.
Can Halacha, the divinely inspired system of Jewish law and morality forged over millennia of scholarly debate and practical experience, provide answers?
Whether ironing out ritual arcana or making life-and-death decisions, the basic method of Halachic inference is the same: If the case is not already well-established in one of the codes of law or in the vast responsa literature, a Halachist must break the case down into its basic legal elements before seeking recourse in the principles elucidated in the Talmud and its subsequent commentaries. Some questions have open-shut answers; others call for a combination of encyclopedic knowledge, familiarity with underlying medical and scientific conditions, experience, creativity, and common sense.
No Innocent Bystanders
Though it raises profound questions about family and individual duty versus collective interest, the dilemma of the healthcare worker and his immunocompromised wife has a relatively straightforward solution. Confronted with this real-life case, Rabbi Asher Weiss, a universally revered Halachist and decisor for Jerusalem’s Shaarei Tzedek hospital, issued a responsum written with characteristic clarity and sensitivity.
First, he refers to the fact that Judaism—unlike most contemporary legal systems—recognizes a duty to “not stand idly by your brother’s blood” (Vayikra 19:16) and compels bystanders to act, for example, if they see someone who appears to be drowning. However, if the rescue itself is risky, and especially if there are better swimmers nearby, then jumping into the water is commendable, but not mandatory. In David’s case, Weiss recommends that the job should be left to a colleague whose involvement will not entail exposing vulnerable people to the virus.
But what if the paramedic cannot be easily replaced and there is no one else to take the call? Rabbi Weiss does not directly address this scenario, but, presumably, the underlying principle remains in effect. Although there is some debate on the matter, the accepted view, as cited in the Code of Law, is that there is no imperative to place oneself in serious danger, even to save another from certain death. Certainly, there is no justification if it means endangering someone else—especially one’s spouse.
The awful prospect of having to choose between lives takes us to the tragic problem of ventilator allocation, where a scarcity of resources is built into the conundrum. A recent survey published in the Annals of Internal Medicine found that more than half (53%) of respondent hospitals had no official policy for the allocation of ventilators. In Wuhan, Milan, New York City, and elsewhere, there actually were more patients in need than machines to go around. When many lives are in danger, but only a few can be saved, what do you do?
A shocking account from one Italian E.R. doctor, Andrea Duca, published in the New York Times on the 14th of April, gives a sense of the terrifying stakes involved. Working in the Papa Giovanni XIII Hospital—a modern, nine-hundred-bed facility in Bergamo, some twenty-five miles from Milan—in the early days of the deluge, Dr. Duca found himself overwhelmed.
The patients keep coming. Beds fill up. Ventilators get parceled out. Quickly, there are many more patients than equipment and space. Doctors can be recruited, or take on more patients than they are usually comfortable with, but what to do about the lack of resources? Who gets the precious few ventilators?
Those deemed too old or too sick don’t get ventilators or have them taken away so that they can be used for patients who are more likely to survive. Duca recalls for me one of the first patients he subjected to this calculation. The man, 68, had transplanted lungs. His oxygen level had dropped; his breathing rate increased. “I knew that he was not doing well,” Duca says. But there were no spots in the I.C.U., because they were filled with younger and healthier patients whose prospects of recovery were greater. Duca made the difficult decision not to give the patient a breathing tube, to save the ventilator for someone more likely to live.
Duca had the hospital’s visitation rules relaxed, to allow the patient’s family to see him. As his wife and daughter entered the room, the man gave a “wonderful smile” – but then realized why they were coming to visit him.
The man knew in that instant that he was going to die, Duca says. As the man’s breathing worsened, morphine was started. He died 12 hours later.
Did Dr. Duca do the right thing? Perhaps it is not for us to say. Surely, his courage and commitment in the face of catastrophe are to be lauded and his medical competence is not in doubt. But ours is not a medical question; it is an ethical one: Is there a right thing to do? And how do we find out what it is?
For the Halachic-minded, when medical supply lines are stretched to a breaking point, Jewish medical ethics must step into the breach. Although the ventilators themselves—along with the coronavirus outbreak—are novel developments, the question of triage is Halachic ground that has been trodden for more than two thousand years.
The Mishna, the concise, second-century encapsulation of the Oral Law, presents the case of a woman experiencing life-threatening complications in childbirth. If the child is not yet born, says the Mishna in Ohalos 7:6, the woman’s life takes precedence over the fetus:
However, once a majority [of the child] emerges, we do not touch it, for one life cannot be set aside for another.
In a recent ruling, Rabbi Hershel Schachter, a prominent rabbinic authority affiliated with Yeshiva University, extended this principle to the problem of ventilator scarcity. If two patients arrive at the hospital at the same time, the overseeing physician can determine which of the two the ventilator is more likely to help and allocate it on that basis. However, with a few caveats, he rules that once a patient has already been attached to the machine, it cannot simply be taken from him or her when another patient with better prospects of survival arrives: One life cannot be set aside for another.
It is important to appreciate how uncommon this thinking is. In the Annals of Internal Medicine paper, almost all the hospitals with a triage policy cited “benefit” in their explicitly -stated criteria, half mentioned “age,” and only six out of twenty-six “utilize a first-come, first-serve allocation framework.”
To elaborate: In theory, there is a range of factors to draw from when determining how to best allocate scarce resources. First, one must assess which patients are most in need of care. Then, there’s the age of the patient. This may lead to questions about which patients stand to benefit the most from medical attention. For example, if the intervention is successful, how many years can the patient expect to live for, and what will the patient’s quality of life look like? From there, an ethicist might start thinking about how to accrue the greatest utility to society. Perhaps parents or professionals should be prioritized? Wouldn’t nurses provide more value to society than hairdressers or telephone sanitizers? And off to the highway guardrail we start to drift.
But Halacha slams on the brakes well before this point. We cannot simply unplug the ventilator from an 80-year-old retiree and wheel in a young mother of six to take his place. Once a doctor has taken a patient into their charge, as long as continued medical attention is expected to help, nothing else matters. But, what is the rationale behind this ruling?
As in English common law, the Halachist bases his decision on precedent, which is to say real-life cases described in the Talmud or subsequent literature. Torah knowledge does not arrive from Amazon in neatly packaged abstraction. But, as the highly respected, Melbourne-based, rabbinic educator and scholar Rabbi Faitel Levin explained over the phone to Lubavitch International, out of the process of painstaking induction from grounded experience emerge transcendent principles.
To illustrate, Levin recounted a public debate he engaged in several years back with noted utilitarian thinker Peter Singer. Also a Jew from Melbourne, Singer is, with little doubt, the most famous moral philosopher alive and seems surprisingly comfortable making utility equations such as those mentioned above, or comparing the value of a small child’s life to, say, that of a chimpanzee. Singer might say that some Covid-19 patients indeed ought to be displaced by others. In response, Rabbi Levin refers to the chessboard: No matter whether the king still has all his pawns, horses, and castles on the board or whether he has been left denuded and alone, a checkmate carries precisely the same meaning. As long as the king stays in play, the game goes on. In this allegory, the king represents that sacred, irreducible, essential quality of life—a quality that Singer denies.
It is this appreciation for the sanctity of life that drives Halachic triage decisions, just as it drives the Halachic justification for shutting down our schools, synagogues, and workplaces. Because human life is of irreducible, incommensurate value, calculations of social utility are simply not ours to make, and age is no justification for unplugging a ventilator.
Lord, Protect the Simple
This seems to raise another question: If one life cannot be set aside for another, neither can it be set aside for economic considerations. The Torah’s call to cherish and preserve life — And be exceedingly careful for your souls — means that it is a sin to endanger a life, including one’s own. Does that mean that, until a safe vaccine has been produced, we shouldn’t go out? Surely, the enormous costs that come with freezing an entire economy must also be reckoned with. Does Halacha offer a way to ease out of lockdown? Once governments do allow restaurants and indoor workspaces to reopen, does Halacha demand that business owners, workers, and patrons simply stay away?
The truth is, there is risk all around us. Every year, some 19,000 Americans wind up in the emergency room due to injuries incurred while barbecuing. Does that make firing up the grill an act of courage? Even more people lose their lives in traffic accidents, and yet, while their fashion sense may seem stuck in the eighteenth century, Orthodox Jews are still more comfortable in cars than around horse-drawn carriages. So, just what is it that makes risk tolerable?
Rabbi J. David Bleich is a pre-eminent English language expositor of Halachic thought, the author of Judaism and Healing, as well as a Contemporary Halachic Problems series that now runs to seven volumes. During his own Manhattan lockdown, Bleich spoke to Lubavitch International about the assessment of risk in Halachic thought. Part of the answer to these questions, he explained, lies in a crucial principle that emerges from a curious discussion in the Babylonian Talmud, Yevamot 72a, about the weather. The sage Rabbi Papa indicates that certain inclement weather conditions can make blood-letting procedures riskier, or, better put, used to make them riskier:
R. Papa said: Hence, no circumcision may be performed on a cloudy day or on a day when the south wind blows; nor may one be bled on such a day. At the present time, however, since many people are in the habit of disregarding these precautions, “The Lord protects the simple.”
What the Talmud is saying is that when it comes to risks that are more marginal, there is a degree of subjectivity involved. Although the Torah forbids exposing oneself to any unnecessary danger, if the risk is small enough and commonly accepted, we can trust in G-d that our safety is vouchsafed. Shomer pesa’im Hashem, “G-d protects the simple,” is how the Sages cite the verse in Psalms 116:6.
This is the reason that operating a car is not Halachically verboten, although surely one can quibble over speed limits and safety standards. It is also the reason why we can go grocery shopping during a pandemic, and why we will eventually be able to enjoy live music again.
But we aren’t quite there yet. As long as Covid-19 is dangerous and at large, Rabbi Bleich rejects the impulse to compromise on safety for the sake of economic interest. According to some Halachic authorities, an individual is only required to spend up to a fifth of his or her wealth in order to save a life. However, in collective terms, this represents a truly vast sum of money that society is obligated to expend in maintaining a lockdown and on combating a disease, providing protective equipment for essential workers, and paying to keep others at home. Of course, in the event that financial aid doesn’t arrive and the threat of impoverishment brings real risks of its own, an individual would be permitted to hazard the virus in order to make a living. In states with a strong welfare safety net, Bleich considers this to be an unlikely scenario.
While Halacha always accepts the determination of experts on medical matters, it is possible that public health authorities will be pressured, by political and economic factors, into giving the all-clear before any Halachic standard of acceptable risk has been met. For that reason, when the lockdown finally does start to lift, Rabbi Bleich and his colleagues advise adopting a more cautious reopening schedule than that proposed by their respective governments. According to them, even once businesses are legally allowed to resume operations, synagogues should do so only if it is clear that no lives will be endangered in the process.
As Bleich explained, the principle of Shomer pesai’im Hashem is only triggered once the threat of Covid-19 is both low, and perceived as such. In other words, it depends on a psychological phenomenon that isn’t easy to measure. It is perhaps the epitome of Halacha’s nuanced approach to these questions: a principle that requires the deft touch of a scholar with an ear for the exquisite strains of Halachic thought, and another held close to the realities on the ground.