The 2019 coronavirus (COVID-19) global pandemic has raised profoundly challenging questions of religious and civic responsibility, as mass acceptance of public health measures to prevent spread of the virus have necessitated neglecting many other pillars of individual, communal, and civic life, including livelihood. While Jewish law (halakha) affirms the primacy of saving life over almost every other commitment, this scope of this affirmation becomes less clear with regard to long-term, public measures with no definitive end known. In this study, we will explore which, if any, health risks halakha justifies taking in order to prevent personal or societal loss, whether economic or otherwise.
Jewish law values the preservation of human life to such an extent that one must even violate Shabbat, a capital crime, in order to save a life or even for the possibility of saving a life, for example, digging through rubble of a collapsed building which might be covering a still-living person.
The Mishnah teaches, similarly, that other transgressions should also be violated if doing so might save a life. This includes standard transgressions, such as eating meat of a forbidden animal, and the more intense transgression of eating on Yom Kippur, generally punishable by excision.
The Rambam concisely summarizes this forceful commonplace of Rabbinic law, that preserving life precedes the mitzvot.
The earliest history, which is beyond the scope of this project to trace, is actually complicated, but by the middle of the Tannaitic period (mid-2nd Century), the priority of saving life over mitzvot was taken for granted; the Sages disputed only as to the Biblical source and conceptual grounding of this principle.
The early amora Sh'muel added one more point of Biblical grounding, which has subsequently dominated Rabbinic discourse on the primacy of saving lives: the mitzvot of the Torah are given to be lived, so it is counter to their purpose to die in order to perform them.
There are limits to the inviolability of human (or, for some texts, Jewish) life, as we will see throughout this paper. The discussion of martyrdom teaches that preservation of one life may not come at the cost of committing cardinal sins of idolatry, incest, or taking of another person's life. That short list emphasizes through its short list of exceptions -- and some sages had even shorter lists of exceptions -- the centrality to Halakha of the inviolability of life.
Similarly, various mitzvot in the Torah mandate actions taken to protect one's own and others' safety. The Rambam summarizes this legal category forcefully.
According to the numerous sources from which we have selected just a few examples here, Halakha teaches us that our point of departure when we evaluate potential resumptions of "normal life" -- opening workplaces, schools, places of recreation and travel, etc. -- before the pandemic is eradicated must be keeping people alive. We are required to forgo even our deepest commitments to that end and to take numerous inconvenient measures as individuals and as a body politic to keep ourselves and the masses safe and healthy.
ADDING THE POVERTY SECTION HERE. YOU CAN ADD YOUR PART IN BETWEEN IF YOU THINK THAT'S WHERE IT GOES.
We have seen that Rabbinic literature highlights saving lives as a more powerful responsibility than anything besides avoiding idolatry and incest. Nevertheless, the same literature also highly values the preservation of economic welfare, sometimes in ways that seem even to encroach on the territory of pikuach nefesh, suggesting, in our case, that there may be personal or even public health risks which we should be prepared to accept in order to prevent economic loss.
Rabbi Eli‘ezer teaches that the reason why, in the first paragraph of the Sh’ma, the Torah teaches that we must love God both with all our life and with all our might (ie, our property) is that some people value their body more than their money and some people value their money more than their body, so the Torah needed to speak to both of those types of people, reminding them that love of God must take precedence over whatever is most valuable to them. The passage makes no value judgment, though. Apparently, it is legitimate to value one’s money over one’s body.
We may see an example of this in the Babylonian amora Rav Hisda, who would willingly experience bodily injury in order to protect his clothing.
Similarly, Rabbi Yohanan teaches that robbing someone of even a tiny amount of money is like taking their very breath from them, equivalent not only to murdering them, but to murdering their children, and this is so even if the robber compensates the victim for the stolen item, and even if committing the robbery passively, through intermediary forces.
Perhaps most chillingly, the tanna Rabbi Yose rules that in a time of drought, when our town has more water left than the neighboring town, we may prioritize our animals and even our laundry needs over the lives of the residents of the neighboring town, denying them water, suggesting that preventing economic collapse can be prioritized over human life.
The idea that economic needs are equivalent to the preservation of life finds blunt expression in a baraita which teaches that being poor is equivalent to being dead, or, as articulated elsewhere, poverty is like death.
Accordingly, the Talmud Yerushalmi (Pe'ah 8:7/21a) teaches that distribution of welfare should be treated as a capital case, and the only reason welfare distribution is managed by a simple court of three judges, as are civil cases, rather than by a full capital court of 23 judges, is because an unwieldy court that large would inevitably slow down the disbursement process, endangering those who rely on welfare. In principle, though, welfare is a capital matter.
In our context of COVID-19, some citizens, pundits, and elected officials advocate acceptance of robust risk and significant rates of infection and death in order to keep the economy strong. In light of what we've seen, do they have an halakhic foot on which to stand? That all depends on what is meant by "the economy". The texts we have seen that equate economic sustenance with life itself refer only to conditions of dire penury. It is poverty that is equated with death. R. Yose didn't allow townspeople to use their water for a recreational fountain or swimming pool at the potential cost of other people's lives. He allowed using our water so to feed animals and to do laundry. Keeping our animals alive and healthy is itself a pikuach nefesh concern. If we let our animals, our nutrition source, die, we won't be far behind. What about laundry? Is he talking about something more akin to laundering diapers in the contemporary context or laundering a shirt on which you spilled a little juice? While the Talmud, according to most commentaries, rules in accordance with R. Yose, it does so only along with limiting his position to extreme measures of maintaining a minimally functioning society.
The kind of laundry that R. Yose allows the drought-suffering townspeople to prioritize over giving drinking water to desperate outsiders is the kind of laundry without which a public health crisis will emerge. In other words, where one concern for saving lives of some people in one way may jeopardize the lives of other people, in another way.
A modern halakhic authority, Rav Yekutiel Halberstam, affirmed that the kind of laundry prioritized over life in this text is the kind of laundry without which life is threatened, even if a little further down the road. However, he added from other texts that even the avoidance of mere pain that is not life-threatening may take priority over some people's lives if the pain at issue is the pain of the masses. This enlightens our own COVID question: what kinds of mass pain caused by the economic shutdown might justifiably be avoided even at increased jeopardy to some people's lives? Finally, he affirms that whatever assessment is made to keep drought water for needs less immediate than personal drinking water can get off the ground only if there remains a possibility that the people asking for the water might have another source. Saving human life remains the strong priority; other needs have a high burden of proof to show that this other need is itself well along the road to risk to life.
שו"ת דברי יציב, חו"מ ע"ט
האדמו"ר מסאנז, הרב יקותיאל י. הלברשטאם
כו) ובנדרים דף פ' ע"ב...ומשמע להדיא דלר"י צערו קודם לחיי חבירו....
ומדוייק בלשונו והלכתא כביסה הויא חיותא וכו', אבל לא משום צער גרידא ודו"ק. וי"ל לפ"ז דבמקום צער בלבד פשוט דחיי אחרים קודמין ודו"ק.
וגם לפי פשטות משמעות ש"ס דילן דמשום צער קאמר אפשר דשאני צערא דרבים, עיין שבת מ"ב ע"א מכבין גחלת של מתכת ברה"ר בשביל שלא יזוקו בה רבים, וברמב"ן שם דשמא כל היזק של רבים כסכ"נ חשיב ליה שמואל וכו' עיין שם וברשב"א ובר"ן שם, וי"ל דה"נ בצער של רבים שייך עכ"פ לומר דחייהם קודמין ודו"ק היטב...
שו"מ בשו"ת בית שלמה יו"ד ח"ב סי' צ"ט שכתב דאף לר"י ע[ל] כ[רחך] מיירי ביש אפשרות להביא להם מים לחיי נפש ממקום אחר, אבל בחשש סכנה גמורה אינו עולה על הדעת לומר דצערא דידהו אלים מסכנה דאחריתי, והביא ראיה ממינקת שאסורה להנשא משום סכנת הולד אף דמניעת תשמיש הוי צערא עיין שם ובהג"ה מבן המחבר...
Responsa Divrei Yetziv, Hoshen Mishpat #79
(Rav Yekutiel Y. Halberstam, the Sanser Rebbe, 1905-1994, Galicia & Kiryat Sans, Netanya, Israel)
Tammuz, 5743 (1983)
...And in Nedarim 80b…it sounds explicit that for R. Yose one’s own pain takes precedence over another person’s life.…
And the language [of the She'iltot, which rules according to R. Yose] is precise, and the law [accords with R. Yose] inasmuch as laundry is one’s life, etc., but not on account of mere pain. And one should say that according to this, in a place of pain alone, it’s obvious that the lives of others take precedence.
Also, according to the plain meaning of our Talmud, in which it was said on account of pain, it is possible that pain of the masses is different. See Talmud Bavli, Shabbat 42a, that one may extinguish a burning slab of metal in the public domain in order that the masses not become injured, and the Ramban says there that perhaps Sh’muel considered any damage to the masses as akin to mortal danger to one’s life, etc. Look carefully there and at the Rashba and the Ran there. So we should say that yes, granted, with pain to the masses, it is relevant anyway to say that their lives take precedence…
Later, I found in Responsa Beit Shlomo YD II:99, who wrote that even though you must say that even R. Yose was addressing a situation where there was a possibility to bring them water for staying alive from another place, but where there’s concern for total danger, it doesn’t even occur to the mind to say that their pain is weightier than other people’s danger, and he brought a proof from the case of nursing mothers, who are forbidden to remarry on account of endangerment to the child, even though restricting sexual consort is a kind of pain. Look carefully there and at the gloss by the author’s son.
Similarly, on Rabbi Yohanan's statement from above that robbing someone is like taking their soul, or robbing them of life, Tosafot that this statement refers to situations of dire hunger. That's when losing money is equivalent to losing life.
Feared economic loss is akin to feared loss of life precisely inasmuch as that economic loss becomes itself life-endangering. This is articulated by the Magen Avraham in his explanation of why a person on a journey whose traveling partners refuse to stop for Shabbat may violate Shabbat in order to continue traveling with them.
Not all economic loss is equal. Poverty is akin to death because poverty causes death. We may not loosen our COVID protocols and cause death to many people in order to protect or revive the economy, certainly not to the extent that that means a diminished standard of living for people whose survival is not at stake. Where there are hard questions and where it may be justified to loosen COVID restrictions, individually or collectively, is where those unloosened restrictions will plunge people into poverty, since poverty itself is a fatal disease. This distinction was captured poignantly by modern Rabbinic thinker Rav Moshe Sh'muel Glasner (1856-1924, Klausenberg, Hungary).
Introduction to Dor Revi’i on Massekhet Hullin, I, p. 26 , translation by Rabbi Jason Rubenstein
To sum up - this matter requires great study in order to clarify it, and my purpose is only to wake us up to the fact that it is hard to say that a person is obligated to render herself and her family naked and impoverished, rather than saving what they have through violating a prohibition. Consider Tosfot (Ketubbot 33b s.v. ‘Had they whipped Hananiah, Mishael, and Azariah, they would have worshiped the idol’) who object that the story of R’ Akiva’s martyrdom (Brakhot 61b) teaches that “with all your life” requires undergoing tremendous suffering - so lashes, all the moreseo! And R’ Yaakov Emden wrote in his comments that the combing of flesh is finite suffering, since R’ Akiva was being executed, but lashes which Rav [the author of the statement about Hananiah, Mishael, and Azariah] was discussing are infinite suffering, and a human being cannot withstand this. If so, continual, unending poverty for the duration of one’s life is infinite suffering, and is much more difficult than the loss of life.
Therefore I say that the ruling that financial compulsion does not qualify as compulsion was not said in every case. For a person who is healthy and strong, and skilled in a craft that can support himself and his family - were he to lose everything he has, it would be nothing more than the pain of losing money, but nothing like loss of life. But for a person who is unwell or infirm, and whose income is wholly derived from their property and possessions that sustain them, and for whom loss of that property would deprive them of any income to support themselves and their family other than charity, making themselves wholly reliant on others - for such a person it is certainly correct for their wealth to be as precious to them as their body, and ever more so - for death would be preferable to a life of poverty. And even though this distinction is nowhere mentioned among the halakhic decisors, in any case it is written, “its [the Torah’s] ways are ways of pleasantness” (Proverbs 3:17).