Is there a Right to Healthcare? Towards a Comprehensive Jewish Approach
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 5 Avraham Steinberg, HaRefuah K’Halacha 107 (2017). 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 See similar discussion related to civilian casualties in war in Minchat Asher, Devarim, 218.
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 Sefer Likutim (Machberet 2) of Rabbi Rafael Malki (Rav and doctor in Jerusalem in the mid-15th century), cited in Tzitz Eliezer 15:40(7). See also Mishneh Torah, Hilchot Matnot Aniyim 9:1-3. Indeed, this model was also a driving force behind the creation of many Jewish hospitals in the United States.4 See Jill Jacobs, There Shall be No Needy: Pursuing Social Justice Through Jewish law and Tradition 171–75 (2009).
General Jewish Principles: Biblical and rabbinic principles emphasize the following: 1) “love your neighbor as yourself”5 Tzitz Eliezer 15:40(7). ; 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 Sanhedrin 17a. 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 See Shulchan Aruch, Yoreh Deah 336:1. See R. Shlomo Goren, Torat Harefuah, 292-308; R. Zilberstein, Shiurei Torah Le-Rofim 1, pgs. 200 & 227. These principles are commonly invoked in discussions about rabbinic perspectives on healthcare access.8 See Jeff Levin, Jewish Ethical Themes That Should Inform the National Healthcare Discussion: A Prolegomenon, 51 J. Religious Health 589 (2012).
Specific Jewish Laws: Halakhah, or Jewish law, includes: a prohibition against bystanding idly while another’s blood is shed;9 Nachum Amsel, Encyclopedia of Jewish Values Between Man and Man 393 (Urim Publications, 2018) (2015); Nochum Mangel & Shmuel Klatzin, What Does the Torah Say About Obamacare?, Chabad.org, https://www.chabad.org/library/article_cdo/aid/1914545/jewish/What-Does-the-Torah-Say-About-Obamacare.htm. obligations requiring charitable giving and the regulation of charity fund distributions;10 Chaim Apfel, Government-Mandated Healthcare: Halakha and Social Policy, 3 Verapo Yerape 95–110 (2011). Apfel points out that obligations of tzedakah require support of those who are lacking basic needs, as well as societal obligations to help bring financial stability and strengthen the poor, and thus a government must provide for their poor, and the Shulchan Aruch in Y”D 248:1-2 requires setting up communal funds. See also M. Broyde, Healthcare Reform: A Jewish Perspective, TorahCafe, https://www.torahcafe.com/torahcafemobile/video/ab03a9a21. 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 Tzitz Eliezer 5, Ramat Rachel 24:3-6, citing Rema Y”D 261:1 and Teshuvah Me’ahavah that based on this ruling, a rabbinic court can also force a physician to treat an indigent patient for free, from which it can be inferred that society itself is obligated to fulfill the obligation of circumcision and providing medical care for everyone, including the indigent, and thus, argues the Tzitz Eliezer, a rabbinic court should appoint a government agency to do so. See also discussion in R. J. David Bleich, Survey of Recent Halakhic Periodical Literature, 21 Tradition 80 (1984). and the priority of communal responsibilities over the needs of individuals.12 5 Avraham Steinberg, HaRefuah K’Halacha 108 (2017). Prof. Steinberg argues that the prohibition against paying a ransom for more than a person is worth ― even if an individual wants to pay the ransom, since it could lead to future danger to the community ― shows us that there are communal rights that override individual needs. Similarly, the ruling of the Rashba (4:185), that a Jewish community can force every member to pay for whatever they determine is a communal need, implies that if a legitimate government decides that something is a necessity, people can be compelled to pay for it (Amsel, 398). R. Shlomo Goren also proves from numerous sources, such as the obligation of local rabbinic courts to ensure functional roads and communal infrastructure, that the responsibility of the health of a community does not fall upon individual doctors, but is a communal responsibility that must be ensured by rabbinic courts and communal leaders (Torat Harefuah, 313-6). See also Responsa Aseh Lecha Rav 7:70.
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 Exodus 21:19. 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 Rashi, Bava Kama 85a, s.v. “Nitna.” to attempt to heal even illnesses that one might regard as the result of a Divinely ordained decree,15 Tosafot, Bava Kamma 85a, s.v. “Shenitna”; Tosafot Ri HaChasid, Breachot 60a, s.v. “mikan”; Moshav Zekenim, Shemot 21:19. to engage in medical risk,16 Ramban, Torat HaAdam, Sha’ar Hasakanah; Responsa Daat Kohen 140. and to charge for medical services.17 Id. But, according to many, the verse that commands healing is actually the precept of returning a lost object.18 Deuteronomy 22:2-3; Sifrei Devarim 22:3; Bava Kama 81b; Sanhedrin 73a. 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 Commentary to Mishnah, Nedarim 4:4.
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 Sefer Hachinuch, Mitzvah 538; Ralbag, Duet. 22, HaToelet Hashevi’i. Additionally, there is a prohibition against being paid for certain mitzvot, such as teaching Torah, returning lost objects or providing medical care (Shulchan Aruch Y”D 336:2). Since one can receive payment for returning lost objects for the time they spent not working (“schar batala” ― see Bava Metzia 30b & 31b), R. Hershel Schachter argues that a community is required to have a fund by which to pay doctors a salary, as a type of “schar batala,” so they won’t get other jobs and thereby be unavailable to practice medicine (Ginat Egoz, pgs. 185-7). In addition to the positive requirement to return lost objects, this verse also includes a prohibition against disregarding others’ lost objects,21 Mishneh Torah, Gezelah Va’avedah 11:1, which can be seen as a general prohibition against ignoring the plight of those who are suffering or lacking.22 Many commentators see the purpose of these laws as developing kindness and compassion for others (Rabbeinu Bachya, Duet. 22:1; Abarbanel, Duet. 22; Rambam, Moreh Nevuchim 3:40).
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 Although it could be argued that this is also a matter of obligation, namely of the finder to return the lost object, perhaps the owner of the item also has a right to have it returned, since the finder must safeguard an object whose owner can be identified, and is held responsible to pay the owner back if any damage happens to the item, such that the owner can claim their right to their object, or its value, from the finder (Mishneh Torah, Gezelah Va’avedah 13:10; Shulchan Aruch, CH”M 267:16).
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 Bava Meztia 31a; Mishneh Torah, Gezelah Va’avedah 11:20. Similarly, if a cow is found pasturing among vineyards, one is obligated to return the animal to its owner to prevent damage to the property (Id. at 15:4, see also Shulchan Aruch Harav, Metzia U’pikadon, 33). 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 Bava Meztia 27a; Mishneh Torah, Gezelah Va’avedah 11:12. and one is not required to extend excessive effort to locate the owners of a found object or an object itself.26 For example, the Talmud in Bava Meztzia 28a-b (and codified in Mishneh Torah, Gezelah Va’avedah 13:8-10) states that during the times of the Temple a lost object would not need to be announced perpetually, but for each of the next 3 festivals was sufficient. After the destruction of the Temple, it was announced in the synagogue, and then it was enough to simply ask one’s neighbors, and if no one came forward, it would remain with the one who found it. Furthermore, the Talmud rules that one is required to return a lost object that they can see, which is within 1 in 7½ mil, or about 3-4,000 feet, but one would not be required to go out of their way to find a lost object beyond that (Bava Metzia 33a), and though this discussion relates to unburdening an animal, Tosafot HaRosh there says it applies to returning lost objects as well. 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 Bava Kama 57a; Mishneh Torah, Gezelah Va’avedah 11:15. 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 Bava Metzia 31a; Mishneh Torah, Gezelah Va’avedah 11:14. 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 Bava Batra 88a. 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 Shiurei Torah LeRofim 6:425, pg. 419. This could also be very relevant in informing discussions related to patient abandonment.
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 Id. at 11:11. 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 Indeed, the Minchat Chinuch, (Kometz Hamincha, Mitzvah 237), rules that there is no mitzvah to save someone who attempted to take their own life. However, many poskim disagree, because although one has the right to lose their own property, people do not own their bodies and thus do not have the right to damage themselves (Teshuvot V’Hanhagot 3:366; Minchat Asher, Devarim, 251; Shiurei Torah LeRofim 6:426, pg. 423 & 6:427, pg. 427 fn. 3). Indeed, the triage protocols adopted by the Israeli Ministry of Health in May 2020 during the COVID-19 pandemic stated that circumstances that may be considered to be the patient’s fault, such as negligence that may have caused a COVID-19 infection, should not be included in triage decisions (https://www.health.gov.il/PublicationsFiles/position-paper-230520.pdf). R. Zilberstein suggests that in a triage situation an argument could be made for prioritizing one who was careful about their health over one who caused their own illness, but that since both patients support the healthcare system by paying taxes, they both deserve equal rights to treatment (Shiurei Torah LeRofim 6:426, pg. 423 & 6:427, pg. 427). Might there be a way to analogize the rulings related to priorities in returning lost objects33 Mishneh Torah, Gezelah Va’avedah 12:1-2. 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.