Rabbi's Writings

Rosh Hashanah Morning
Shabbat, September 19, 2009
Chavurat Lamdeinu
Madison, NJ
Rabbi Ruth Gais
                                      Who Shall Live and Who Shall Die?

I came home the other day to find this notice stuck in our back door. It reads: “Say NO to
Overlook’s heliport. Your voice matters.” The issue is about Overlook Hospital’s proposal to put
a heliport on its roof so that patients suffering from serious brain injuries, transported from all
over our state to Overlook’s neurological intensive care unit, can receive potentially life-saving
treatment as soon as possible. How could anyone object to this? How could anyone not want
another person to get the best care immediately? And yet, as this proposal slowly moves its way
through the Summit Zoning Board hearing, opposition arises. Here are some of the petition’s
arguments: “The heliport is a business initiative that will lend prestige to the hospital at our town’
s expense. It will urbanize our suburban community, affect our quality of life with ever-increasing
noise, impact our property values and introduce new safety concerns. IT OFFERS NO BENEFIT
FOR SUMMIT OR ITS RESIDENTS.” In other words, this is another sad example of NIMBY, not in
my backyard.
IT OFFERS NO BENEFIT FOR SUMMIT OR ITS RESIDENTS. This to me is a chilling sentence, a
deeply amoral sentence. A deeply offensive and frightening one. I believe with all my heart that
we, created in God’s image, are indeed each other’s keepers. If this heliport will increase the
possibility of another human being’s survival, then of course I am for it and I am willing to put up
with a little more noise, a little more “urbanization,” and even a few dollars less on the value of
my property. My reaction comes in large part from my being Jewish and from what I believe my
Judaism tells me about being a member of a community, the Summit community, the Jewish
community, the USA community, the global community, any community.
I’d like us to consider this morning the issue of community ethics, of what defines an ethical
community. I’m going to use the topic that we’ve all been hearing so much about, health care
reform, as a lens through which we can examine what our tradition tells us to do when faced
with decisions that affect the community and that may or may not be pleasing to us as
individuals. Or, to put this in High Holiday terms, we say in our liturgy that God decides during
these Days of Awe “who shall live and who shall die” but increasingly technology and advances
in medicine seem to give us this responsibility. As a community we can decide who shall live and
who shall die in any number of ways – by denying access to the best health care to those who
are too poor or uninsured or live too far from a good medical facility. But it is also true that we,
having accepted these responsibilities are faced with large “macro” questions such as – who
should pay for health care? How do we justly distribute scarce resources and to whom? How do
we answer these questions as Jews?
First of all, we have a couple of general principles to hold in our thoughts as we begin this
conversation. The most important is the obligation of Pikuach Nefesh, saving of a life, derived
from the verse in Leviticus, “Do not stand idly by the blood of your neighbor,” a commandment
interpreted to mean that a person must do everything in her power to save the life of another.
This commandment is so important that it overrides almost every other commandment.
But even this mitzvah g’dolah, this great commandment, poses problems. Take the well known
argument between Rabbi b. Petura and Rabbi Akiva in the Talmud:
Two people were traveling along the way and one of them had in his possession a flask of
water. If both drink from it, they will both die but if only one of them drinks, he will be able to
reach a settlement. Rabbi ben Petura taught that it is better that both should drink and die so
that one does not witness the death of the other. Then Rabbi Akiva taught, “ Let him live with
you.” Your life takes precedent over your fellow’s. (b.Baba Metzia 62a)
    We have an overriding commandment to save life but, like many of our commandments, this
one requires amplification and clarification. The debate between the two rabbis is an attempt to
wrestle with the terrible question of prioritizing life, a debate that extends from the private
individual in issues such as abortion to our concern right now, the communal decision about
allocation of scarce medical resources. Who should live, who should die, who should get a
kidney transplant, which AIDS patients should receive the life saving drug regimen and for whom
is that too expensive?
Our Jewish sources about healthcare distribution and payment as such are meager because
when they were written, healthcare was cheap and not very effective. The Mishnah, a second c.
C.E. document, even says, “The best doctors should go to hell!” But we can extrapolate our
healthcare answers from the sources that deal with the community’s responsibility for providing
for the needy or rescuing someone from captivity.
The rabbis address this question of triage, of who shall live and who shall die in five different
ways. One way is social hierarchy.
A priest (kohen) takes precedence over a Levite, a Levite over an Israelite, an Israelite over a
bastard, a bastard over a Nathin, a Nathin over a convert, and a convert over an emancipated
slave. This order of precedence applies only when all these were equal in other respects, but if
the bastard was a scholar and the High Priest an ignoramus, the learned bastard takes
precedence over the ignorant High Priest. (b. Horayot 3: 7-8)
The important 16th C. law code, the Shulchan Arukh adds another category to the mix:
Whoever is greater in wisdom takes precedence over anyone else. But if one of them was his
teacher or his father, then even though there is someone greater than they in wisdom, his
teacher or his father who is also learned takes precedence over the one who knows more than
he. (S.A. Y.D. 251.9)
Note that now knowledge status trumps social status!
But how comfortable are you with that kind of selection process? It acknowledges one’s rank
and position in society even if in the end it is knowledge-based merit that is the ultimate
determining factor. In fact, there’s little evidence that the rabbis ever used this method in their
own decision making. Why not? Because the notion of social hierarchy in such grave matters
goes against the Torah’s statement that God created us in God’s own image.
We have Jewish sources that suggest that we base our allocation of healthcare benefits on
Jewish laws of tzedakah. The Shulchan Arukh describes the concentric circles of a man’s
obligation to provide tzedakah in this way:
One who gives [money] to his grown sons and daughters, for whom he is no longer legally liable
for their sustenance, to teach the sons Torah and to guide the
daughters in the right path, and similarly one who give gifts to his father [and mother] when they
need them is in the category of one who gives tzedakah. Moreover, he must give them
precedence to all others, and he must give precedence to his relatives before every other
person…And the poor of his own household take precedence over the poor of his city and the
poor of his city take precedence over the poor of another city. (S.A. Y.D. 251.3)
Since the man’s children are no longer minors and the man has no obligation to support his
parents beyond ensuring that they have enough to live on, any support beyond that is considered
tzedakah. Keeping R. Akiva’s decision in mind, at the center of these concentric circles of
obligation, is the individual who is responsible first and foremost for his own welfare. Each
person, if we’re talking about healthcare, is responsible for keeping him/herself in good health,
eating right, exercising, not abusing the body or mind. But, though the rabbis might agree with
this, they are aware as we are too, that things happen, disease, accident, other misfortunes, that
are outside of our control, and that’s why their system of tzedakah is so important. The rabbis’
line of reasoning would suggest a healthcare system in which we take care of ourselves first in
order to be able to care for others who might need our help, then our relatives, then members of
the community, and finally all the rest.
Another set of sources we might consider is how the rabbis prioritized the community’s
obligations in special circumstances.
There are those who say that the commandment to [build and support] a synagogue takes
precedence [over] the commandment to give tzedakah, but the commandment to give money to
the youth to learn Torah or to the sick among the poor takes precedence over the
commandment to build and support a synagogue.
One must feed the hungry before one clothes the naked. If a man and a woman came to ask for
food, we put the woman before the man; similarly, if a man and a woman came to ask for
clothing, and similarly, if a male orphan and a female orphan came to ask for funds to be
married, we put the woman before the man.

Redeeming captives takes precedence over sustaining the poor and clothing them, and there is
no commandment more important than redeeming captives. Therefore, the community may
change the usage of any money it collected for communal needs for the sake of redeeming
captives. Even if they collected it for the sake of building a synagogue, and even if they bought
the wood and stones and designated them for building the synagogue, it is nevertheless
permitted to sell them to redeem captives… Every moment that one delays redeeming captives
when it is possible to do so quickly, one is like a person who sheds blood.

. (Shulchan Arukh, Yoreh Deah 249.16, 251 7-8.)

These rulings from the Shulchan Arukh say that we should establish a list of communal needs
and rank them. Unacknowledged, but clearly at the heart of this list is the principle of pikuach
nefesh, the saving of life. Firs we save the most threatened life, then those still in danger but less
at risk comes next, then educating the youth and so on. This list recognizes the varying needs of
the community: survival, education, religion, and if we were to add to it today we might add
infrastructure, culture, defense, and, of course, health care.
The hierarchy of need takes precedence over the other hierarchies we’ve mentioned, those of
social position and personal responsibility. The Shulchan Arukh makes this clear:
If he, his father, and his teacher are in captivity, he takes precedence over his teacher, and his
teacher takes precedence over his father; but his mother takes precedence over them all. (S.A.
Y.D. 252. 9)
From what we’ve studied we expect this hierarchy. We expect that the individual must save
himself first, then his teacher, then his father, but it’s a surprise to read that his obligation to
save his mother takes precedence. The reason is that she is in peril not only for her life but also
because she may be raped. Her need is greater than that of the men. In this logic, the expensive
organ transplant goes to the one who needs it most and can benefit from it most. Our decision
would be based on the greatest need but we would also have to take into account the overall
prognosis and longevity of the individual.
All of these hierarchies, social, personal, communal or need-based put us in God’s role,
deciding who shall live and who shall die. We should and do feel very uncomfortable in this role.
Another line of thinking in Jewish ethics stresses the equality of everyone. This approach,
summed up in this famous mishnah, is deeply influential.
For this reason Adam was created as a single person, to teach you that anyone who destroys
one soul is described in Scripture as if he or she destroyed an entire world, and anyone who
sustains one soul is described in Scripture as if he or she sustained an entire world. Therefore
each and every person must say: “For me the world was created.” (M. Sanhedrin 4:5)
This approach, which stresses the equality and worth of everyone is, you will not be surprised to
hear, is the approach which I endorse. But even I see that the realities of our world often
preclude such egalitarianism. But I am committed to being my brother and my sister’s keeper
even as I acknowledge that pragmatic decisions are necessary. The question still remains, then,
what can I, what can you, what can we, as Jews, do to bring about as much equality in the
distribution and quality of healthcare as possible?
I’m going to end with the words of Rabbi Elliot Dorff, the well-known Jewish ethicist whose
writings on this subject have informed much of what I’ve said today. Rabbi Dorff writes:
“On the basis of these Jewish sources, the entire community is responsible to ensure that all its
members receive the health care they need. This does not mean that everyone should get every
possible treatment, no matter how remote its possibility of benefit or how high its cost. The
community has both the right and the duty to make considered decisions about how it will
allocate its resources among its various responsibilities.
Those who can benefit most from the procedure must come first, and then first-come, first-
served, regardless of social position, wealth, or relationships to the health care personnel
involved. …
The Jewish demand that everyone have access to health care does not necessarily mandate a
particular form of delivery, such as socialized medicine or government-sponsored health
insurance for those who cannot afford private plans. Any delivery system that provides basic
needs will meet these Jewish standards. Thus, while President Obama’s original proposal for
government-sponsored health insurance for those who cannot obtain or afford private
insurance would surely fit Jewish criteria for meeting communal responsibility, so too would any
other mechanism that provides basic minimum health care to everyone.
The fact, however, that more than 40 million Americans have no health insurance is, from a
Jewish point of view, an intolerable dereliction of society’s moral duty. The Torah, the Prophets,
and the Rabbis of our tradition all loudly proclaim that God commands us to take care of the
poor, the starving and the sick. Given the current costs of health care, almost all of us fall into
that category. On both moral and religious grounds, then, we simply cannot let the present
condition continue; we are duty-bound to find a way to afford health care for all American
citizens.
A pragmatic concern also requires that we act now. The fact that some of those people will
ultimately get health care in the most expensive way possible — namely, in the emergency
room, usually when they are sickest — means that the United States is currently neglecting its
fiduciary responsibility to spend its communal resources wisely. We Americans spend about 15
percent of the gross national product on health care; our Canadian, Western European and
Israeli friends spend about half that — 8 percent. Yet their morbidity and mortality rates are
much lower than ours. Yes, they give up some of their autonomy in their health care, but the vast
majority of Americans have very little choice now. We get what our employer provides — no
more, no less.
It is time that we carry out our Jewish duty to manage our resources wisely as well as our
obligation to provide health care for everyone. How we do that is a legitimate topic for debate,
but we simply must do it.”

Chavurat Lamdeinu

Prayer - Study - Community

Who Shall Live and Who Shall Die?