גריי מאטר ד, נושאים רפואיים, מדיניות בריאות ציבוריתGray Matter IV, Medical Issues, National Health Care Choices

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1The staggering cost for quality health care constitutes a major problem for many countries today. The Israeli government has dealt with this problem since its inception by adopting a national health care system in which the government provides health care for all its citizens. Health care constituted 7.8% of Israel’s 2008 budget, costing 2,065 dollars per person. Despite what appears to be a generous allocation, this amount is insufficient to pay for many citizens’ essemtial medical needs.

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2Thus, painful decisions must be made as to which medications that will be included in what is referred to as the “basket of medicines”. These dilemmas include choices between medicines that will briefly extend the life for very ill patients and those that will prevent serious illnesses such as blindness, alleviate very painful skin diseases such as psoriasis or ease nerve pain. The Israeli government convenes a special committee representing the various sectors of Israeli society is convened by the Israeli government to decide these issues. A rabbi, Rav Yuval Sherlow, is one of the members of the committee. He explains his approach to some of these dilemmas in Techumin volume 28 (pp. 383-391).

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3Must the Government Provide Health Coverage?

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4Rav Sherlow very briefly raises a most basic issue in a footnote early in his article: “what is the responsibility of a government to its citizens” in terms of providing health care. Americans have been intensely debating this issue in recent years. Rav Sherlow leaves this question unanswered but refers to the remarks of Rav Itamar Warhaftig (Techumin 1:485) who notes that in the time of the Gemara the government did not assume responsibility to provide health care, rather citizens paid for it privately as most do currently in the United States.

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5Rav Warhaftig notes that as times have progressed and government organization has become more sophisticated, it is obligated, in his opinion, to provide health care just as it is obligated to provide roads and courts. He argues that government paid health care “facilitates essential services to all levels of the population at a lower cost than in a private market”. Rav Warhaftig admits, however, the downside of this approach “when individuals abdicate their responsibilities and rely on the government to care for them”.

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6One may explain Rav Warhaftig’s view based on Shulchan Aruch (C.M. 163:1) which states that the leadership of a city may coerce each member to contribute payment for essential services such as a wall to protect the city from marauders. National health insurance may be compared to a wall as it protects all the residents of a country from illness.

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7However, the matter is not a simple one. Although socialized medicine provides more affordable health care than private service (since the government controls costs), the question is whether medical services become diminished. The Gemara (Bava Kama 85a) in a celebrated statement asserts that “The service of an unpaid doctor is worthless”. This is essentially the dilemma that the American people have been grappling with.

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8The Rama (ad. loc.) writes that debates regarding public expenditures to service and protect the community are resolved by “convening all the tax paying members of the community so that everyone will express his opinion for the sake of Heaven (i.e. considering the best interests of the community and not personal needs) and the majority opinion will be followed”. The health care dilemma in the United States should also be resolved by our elected officials who should reach a decision by a process in which each side in the debate voices its opinion for the sake of the entire country instead of focusing on narrow concerns.

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9Does Halachah Resolve National Health Care Dilemmas?

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10Rav Sherlow writes that since the Israeli government has assumed the responsibility to pay for health care for all, it must make difficult decisions as to what it pays for. However, he raises a most intriguing question – does Halachah allow the community to decide such matters in the democratic manner described by the aforementioned Rama or must halachic authorities make the decisions based on halachic sources. Rav Sherlow cites from Rav Yosef Dov Soloveitchik’s Halachic Man to illustrate the opinion that “everything is subject to Halachic adjudication”:

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11There is no phenomenon that Halachic man does not relate to….He is interested in sociological creations such as the state, society and the relationships of individuals within the matrix of the community. The Halachah encompasses business issues, damages caused by neighbors, monetary disputes, partnerships, agents, workers, artisans and watchmen. It encompasses family life – marriage, divorce, levirate marriage, sotah, mi’un, rights of husbands and wives – their obligations are clarified by Halachah. War, supreme courts, lower courts and punishments – these are among the topics of the Halachah which are as numerous as the sand by the sea. The master of Halachah grapples with psychological problems such as sanity versus insanity, whether it is appropriate for a couple to remain married, migo and assumptions, judicial discretion, and presumptions of deceit and suspicion.

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12Paying for Medicines that Save Lives or that Alleviate Excruciating Pain?

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13Assuming that Halachah resolves national health care allocation dilemmas, Rav Sherlow proceeds with his analysis. He notes that Rav Eliyahu Bakshi Doron argues that the Halachic position regarding this matter is absolute, in that it always favors life-saving medicine over medicines which improve quality of life. This approach seems quite logical for if one has a choice between saving one person’s life and another individual from psoriasis, the answer would obviously appear to prefer saving a life.

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14Rav Sherlow, however, develops an approach for a community to think otherwise. Rav Sherlow’s fundamental point is to distinguish between the dilemmas of a community and the dilemmas of individuals. An individual, who has to make the choice whether to save someone’s life or restore another individual’s vision, should obviously choose to save a life. However, the considerations of a community are different. At times, the community may or even must overlook the needs of certain individuals in order to further the greater benefit the community.

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15For example, the Mishnah (Gittin 45a) forbids paying excessive ransom to redeem captives. One reason for this, states the Gemara (ad. loc.), is because it is too oppressive for the community. Rashi (ad. loc. s.v. Mipnei Duchka D’tzibura) explains “We may not have to pressure the community and impoverish the community for these [captives]”. Some opinions believe this Halachah applies even when the lives of the captives are in grave danger (see commentaries to Shulchan Aruch Y.D. 252:4 as well as Techumin 4:108-116). Another example is that Halachah (Sanhedrin 20b) permits a king to wage a milchemet reshut (discretionary war) to further the national interest, despite the danger such a war poses to soldiers.

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16On the other hand, we must stress that the needs of the community do not always outweigh those of the individual. For example, the individual takes precedence over the community in the famous ruling of the Talmud Yerushalmi (Terumot 8:4) which states:

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17If a group of individuals are on a journey and they are encountered by evildoers who say to them ‘Give us a member of your group or we shall kill the rest of you’ – let them all be killed and not release even one Jewish soul [afilu kulan neheragin lo yimasru nefesh achat b’Yisrael].

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18What emerges is that Halachah requires a balance between the needs of a community and the needs of the individual. Rav Sherlow argues that the Israeli government is not required to spend all its money on basic necessities such as security and health care instead of allocating money to develop society economically. One could argue that in the long run the Israeli government will be able to better serve the society and widen the basket of medicines if it develops further economically.

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19Moreover, the government must do its best to make the country attractive so that more people will be willing to move there and fewer will desire to leave. The flight of highly talented individuals from Israel could in the long run also endanger the population on a whole. A government is obligated to consider pikuach nefesh in the long run and not merely the short term (see Shavu’ot 35b and Gray Matter 3:222).

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20An example of such conduct is Rav J. David Bleich’s citing (Tradition Spring 1992 p. 66) with approval the reported action of British Prime Minister Winston Churchill during World War Two. It is alleged that Churchill knew a few hours in advance that the Germans would be bombing Coventry yet he did not warn its residents to seek shelter. He reasoned that this would inform the Germans that the British had broken their communication codes, which would cost many mores lives in the future, having lost this major advantage. Rav Bleich who cites Churchill’s action with approval (Tradition Spring 1992 p. 66) is willing to consider “ignoring the imminent danger to a smaller number in order to prevent future danger to a larger number of people” if “it is certain or virtually certain that the future danger will become actual”.

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21Rav Sherlow cites Rav Yitzchak Zilberstein (Chashukei Chemed Pesachim 69b s.v. Yachid Nami) who writes:

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22In regards to the priorities government authorities must assume, such as whether they should develop a transplant department or the emergency room department, I understood from my father-in-law [Rav Yosef Shalom Eliashiv] that the needs of a community are also considered Pikuach Nefesh. Indeed the Halachah essentially obligates us to save as many sick individuals as possible and to invest the money into emergency care instead of the transplant unit. However, it is impossible to either close or not develop the transplant unit, because the needs of a community are also considered Pikuach Nefesh. If the transplant department would close, it will strike fear in the community, and people will not want to live in this country as it states in tractate Sanhedrin (17b) that it is forbidden for a Torah scholar to live in a city which does not have a doctor. People will feel as if they live in a desert. Therefore, even though a transplant unit requires more investment and with that money could save more lives the very existence of such a unit calms the community with the knowledge that in case of necessity transplants are available. This is considered Pikuach Nefesh.

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23Nedarim 80b – Life vs. Laundry

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24Our dilemma depends to a great extent on the resolution and explanation of a somewhat puzzling tannaitic dispute recorded in the Gemara (Nedarim 80b). The Tanna Kama (first recorded opinion) asserts that if one town has sufficient water for both washing clothes and drinking and a neighboring town has no water even for drinking, the first town must give of its water it would use for washing clothes and give it to the neighboring town to drink. Rabi Yosi astonishingly disagrees and rules that the first town need not share its water for washing clothes even to save lives. The Gemara (81a) explains that the first town’s residents have priority since if they do not wash their clothes, they will lose their sanity.

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25Rav Sherlow derives from this Gemara that one need not sacrifice one’s medicine to alleviate severe pain or prevent blindness in order to briefly prolong another’s life. Rav Yisrael Rozen, in an editorial critique of Rav Sherlow, cites Beit Shmuel (80:15) to demonstrate that mainstream Halachah accepts the opinion of the Tanna Kama instead of that of Rabi Yosi. In addition, he cites Teshuvot Achiezer (Y.D. 2:23), Teshuvot Igrot Moshe (Y.D. 1:145) and Rav Unterman (B’Tzomet Hatorah Vehamedinah 3:313) as limiting even Rabi Yosi’s ruling to a case in which the residents of the neighboring town would suffer more than those of the first town but would not die.

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26Rav Sherlow’s Conclusion

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27Based on the above, Rav Sherlow presents the following nuanced approach, which contrasts sharply with Rav Bakshi Doron’s aforementioned absolute stance regarding this difficult dilemma:

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28The Halachah permits, and possibly obligates, including in the basket of medicines those that redeem patients from excruciating pain, despite the fact that as a result medicines that briefly prolong life (but do not cure disease) will be excluded from the basket. The community is obligated to take extra precaution in these decisions, due to the danger of denigrating the importance of every moment of life. The stature of the Torah’s view of the holiness of life teaches that despite the permission to include medicines that improve the quality of life, the life-saving medicines and medicines that lengthen life should enjoy priority over other medicines.

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29Rav Sherlow, following in Rav Eliashiv and Rav Zilberstein footsteps, is concerned that Israel would be rendered an undesirable place to live if its national health insurance did not offer medicines to prevent blindness and alleviate painful skin diseases such as psoriasis.

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30We pray that the individuals entrusted to resolve the difficult dilemmas concerning health care coverage, whether in Israel or elsewhere, do so in the spirit of the Halachah which seeks to balance the needs of individuals and community without one necessarily outweighing the other. In addition, we pray that all involved in the decision making process do so with intelligence, sensitivity and consideration of the long term interests of the country.