"Is there a Right to Healthcare? Towards a Comprehensive Jewish Approach" by Jason Weiner

Is there a Right to Healthcare? Towards a Comprehensive Jewish Approach

Jason Weiner

The question of the “right” to fair, universal and comprehensive healthcare has been circulating for quite a while, but rapid expansion of modern medical technology has transformed the question from a periodic issue into a perennial one. Controlling rising costs, determining priorities, and ensuring fair distribution and access to healthcare are central questions now that medicine can accomplish so much, is so expensive, and provides so many treatment options.¹ Because the urgency and depth of these issues are relatively new, we do not yet have detailed and nuanced rabbinic guidance on them as compared to other healthcare-related matters addressed in Jewish law. Instead, one who seeks guidance from the wisdom of the Jewish tradition on these issues must find compelling analogous sources in classic Torah literature and attempt to extrapolate the principles and apply them to our modern era.²

Potential Paradigms

Contemporary Jewish thinkers have offered many suggestions as to how Judaism might guide us in this dilemma. They point to three main categories within which a diverse ― and not necessarily consistent ― set of values, directives, and guides may be found:

Historical Precedent: Nearly every historically documented Jewish community created some form of a “kupah,” or communal health fund, which provided medical attention and basic needs for anyone in the community who could not afford it.³ Indeed, this model was also a driving force behind the creation of many Jewish hospitals in the United States.⁴

General Jewish Principles: Biblical and rabbinic principles emphasize the following: 1) “love your neighbor as yourself”⁵; 2) tikkun olam, or “repairing the world”; 3) the sanctity of life; 4) actualizing holiness, justice, mercy, and the ways of peace; and 5) “pikuach nefesh,” the primacy of life-saving measures. The Talmud further mandates that having a resident physician is a basic requirement for any Jewish community,⁶ and the seminal 16th century Jewish law code, Shulchan Arukh, rules that a doctor that fails to treat a patient is guilty of bloodshed.⁷ These principles are commonly invoked in discussions about rabbinic perspectives on healthcare access.⁸

Specific Jewish Laws: Halakhah, or Jewish law, includes: a prohibition against bystanding idly while another’s blood is shed;⁹ obligations requiring charitable giving and the regulation of charity fund distributions;¹⁰ rabbinic rulings related to forcing ritual circumcisers to perform circumcisions free of charge in cases where a baby’s family cannot afford to pay;¹¹ and the priority of communal responsibilities over the needs of individuals.¹²

Each of these approaches may seem compelling to some, yet also feel forced to others; either way, none provides a comprehensive paradigm. Moreover, given that so much of Jewish tradition developed when Jews were living in small and somewhat homogenous societies without modern technology or governmental influence (until the founding of the State of Israel), most of these approaches do not fit neatly into contemporary realities and must be combined with various other principles and often reinterpreted widely outside of their original context. Accordingly, I would like to propose an approach to provide systematic guidance to this issue that some others have suggested, but which has yet to be fully mined for the extremely relevant potential it contains.

The Source of the Commandment to Heal

Many are under the impression that the verse “You shall surely heal” (verapo yerape)¹³ is the commandment to engage in medical care. However, that verse simply gives physicians permission to engage in a variety of medical activities: to heal even though they might think doing so goes against the Divine will,¹⁴ to attempt to heal even illnesses that one might regard as the result of a Divinely ordained decree,¹⁵ to engage in medical risk,¹⁶ and to charge for medical services.¹⁷ But, according to many, the verse that commands healing is actually the precept of returning a lost object.¹⁸ The Rambam explains that, “This verse includes returning a person’s body, for if one sees them dying and can save them, one should save them, whether physically, monetarily, or with knowledge.”¹⁹

The Scope and Implications of the Commandment

Indeed, the laws of returning lost objects go beyond interpersonal relationships. Some commentaries explain that the purpose of these Torah requirements is to facilitate the very foundations of an ethical government/country.²⁰ In addition to the positive requirement to return lost objects, this verse also includes a prohibition against disregarding others’ lost objects,²¹which can be seen as a general prohibition against ignoring the plight of those who are suffering or lacking.²²

While normally Jewish ethics focus on obligations, not rights, one does have an inherent right to have their lost objects returned to them, so we can thus speak of a right for all to receive healthcare.

Using the commandment to return a lost object as the paradigm for understanding communal healthcare responsibilities allows us to reframe the issue. While normally Jewish ethics focus on obligations, not rights, one does have an inherent right to have their lost objects returned to them, so we can thus speak of a right for all to receive healthcare.²³

The laws of returning lost objects have their own system of detailed and nuanced rules, many of which can be applied to our modern context. For example, there are numerous requirements in these laws intended to prevent objects from becoming lost in the first place, such as the ruling that if one sees impending flood waters that may damage or misplace another’s property, one is obligated to create a protective barrier.²⁴ Providing access to preventative medicine might be considered a requirement under this rubric because providing medicine to prevent damage to one’s body is analogous to constructing a barrier to prevent damage to one’s property. On the other hand, not all found objects require returning, such as those of very minimal value,²⁵ and one is not required to extend excessive effort to locate the owners of a found object or an object itself.²⁶ Perhaps these boundaries imply that there should be some reasonable limits to universal healthcare rights. Indeed, there is a sense of partnership in the laws of returning lost objects. For example, one who finds something and knows to whom it belongs may simply return it to the place where the owner is known to be at a certain time each day, but that finder is not obligated to concern themselves with the object any further, since the owner will most likely see it.²⁷ This approach implies that while the community has an obligation to provide healthcare, the individual is also required to take responsibility for doing their part in seeking out healthcare and conducting themselves in accordance with their doctor’s instructions. However, even if a patient is noncompliant, they should not be given up on quickly, especially when matters are out of their control, for the rabbis state that if a person returned someone’s animal but it constantly escapes, they are obligated to return it again and again, even if this situation recurs 100 times.²⁸ Indeed, the laws of returning lost objects stipulate that even when a person is not expected to return an object, if they began to return an animal but then caused it to wander off even further from its owner’s property, they become obligated to return it.²⁹ This may teach us that if a healthcare professional is responsible for the deterioration of their patient’s condition, they become obligated to help rectify the situation. ³⁰ This could also be very relevant in informing discussions related to patient abandonment.

Conclusions

There are many rulings about lost objects, and while several certainly don’t fit neatly into public healthcare policy, there are intriguing possibilities. For example, in addition to the possibilities above, might the ruling that there is no requirement to return objects that were intentionally lost³¹ suggest that one who deliberately hurts themselves or jeopardizes their well-being does not have the same rights to communal healthcare as those who behave more responsibly?³² Might there be a way to analogize the rulings related to priorities in returning lost objects³³ to triaging healthcare spending? Might the detailed rules related to returning objects based on their identifying marks (simanim) have implications for advance directives, or the laws of guarding lost objects help inform malpractice theory?

There is much to investigate, but suffice it to say that this area may be the most relevant analogue for determining contemporary communal healthcare policy, and it deserves more attention. Of course, any such policy would need to be combined with other Jewish values, laws and principles, in addition to modern public health strategies and economics, but there is a need for one overarching Jewish principle to guide the discussion, instead of multiple forced attempts. The laws of returning lost objects seem to constitute the best candidate for this endeavor. ♦

Rabbi Dr. Jason Weiner, BCC serves as the Senior Rabbi & Director of the Spiritual Care Department at Cedars-Sinai in Los Angeles, where he is also the rabbi of Knesset Israel Synagogue of Beverlywood. He is a Board Certified Chaplain, holds a Doctorate in Clinical Bioethics and is author of Jewish Guide to Practical Medical Decision Making.

Recommended Citation

Weiner, Jason. “Is There a Right to Healthcare? Towards a Comprehensive Jewish Approach.” Canopy Forum, July 1, 2020. https://canopyforum.org/2020/07/01/is-there-a-right-to-healthcare-towards-a-comprehensive-jewish-approach/

Share on Facebook