Uncertain Piku'ach Nefesh and Public Policy

            The Mishna states that one profanes Shabbat even for uncertain piku'ach nefesh (saving of an endangered life):

R. Matiya ben Charash says: Someone who has a pain in his throat - we cast medicine into his mouth on Shabbat, because it is an uncertain [danger to] life, and every [instance of] uncertain [danger to] life sets aside Shabbat. A person upon whom a building has collapsed, and there exists a doubt whether he is there or not there, whether he is alive or dead, whether he is a Cuthean or an Israelite – we remove the debris for his sake. (Yoma 83a)

            Following the collapse of the roof of the Versailles wedding hall, R. Israel Lau, then the Chief Rabbi of the State of Israel, ruled that the rescue efforts should continue on Shabbat. While the press spoke with great excitement about "the novel ruling of R. Lau," there was nothing really new about it; it was, in fact, an explicit Mishna.

            It is true, however, that not every instance of uncertain piku'ach nefesh justifies the desecration of Shabbat. One of the criteria limiting the allowance was established by R. Yechezkel Landau, the Noda Biyehuda, in the course of his discussion regarding the permissibility of performing autopsies:

…Concerning an incident that occurred there involving a patient suffering from gall stones, whose doctors performed surgery following common medical practice, but the surgery was unsuccessful and he died. The halakhic authorities of the city were asked whether it was permissible to dissect the corpse in that area, in order to obtain a clear view of the source of the disease. [This was all] in order to acquire medical knowledge for the future, should such a case occur again; that they should know how to perform the surgery, and thus avoid the danger of unnecessary incisions. Is this forbidden because it involves disfiguring and disgracing the corpse, or is it permitted because it will lead to the saving of lives in the future?…

I am astonished. If this is called even uncertain piku'ach nefesh, then why all the discussion? Surely this is governed by the explicit ruling that even uncertain piku'ach nefesh sets aside the stringent laws of Shabbat… However, all this applies when we have before us a case of uncertain danger to life; e.g., a sick patient or a collapsed wall… But in the case under discussion, there is no patient that needs this [now]. The only reason they wish to acquire this knowledge is that perhaps there will be a patient who will need it. We may certainly not set aside a Torah prohibition or even a rabbinic prohibition because of this unlikely concern. For if you consider such a concern uncertain piku'ach nefesh, then all preparations of medications – grinding and cooking medicines, preparing a scalpel for blood-letting – should be permitted on Shabbat, for perhaps a sick person will arrive today or tonight and he will need it. And it is difficult to distinguish between a concern that is near in time and one that is far-off. (Responsa Noda Biyehuda Tinyana, Yore De'a, no. 210)

            The Noda Biyehuda argues that one may not profane Shabbat now because of the possibility that this will save a life in the future. That is to say, one may not violate a Shabbat law when there is no one presently before us whose life will be saved through the commission of that transgression. It should be mentioned that there is room to disagree with the Noda Biyehuda's comparison. He argues that if we allow uncertain piku'ach nefesh of this sort, we should always desecrate Shabbat by preparing medications, "for perhaps a sick person will arrive." But there is no similarity between the cases. Preparing medical instruments or medications on Shabbat because of the possibility that a sick person will arrive would indeed be foolish. Regarding medical training, however, there is no uncertainty. There is no question that at some point in the future one of the current medical students will find himself treating a patient with the same illness. Uncertainty may indeed exist as to the degree that the autopsy performed now will enhance his future medical skills, but that is a doubt of an entirely different sort. R. Moshe Sofer, the Chatam Sofer, writes in one of his responsa (Yore De'a, no. 336): "According to this, if there were before us a patient with a similar disease, and we would wish to perform an autopsy on the corpse in order to cure the patient, it would almost certainly be permissible." This implies that we assume that performing the autopsy will indeed enhance the doctor's skills and contribute to the saving of life. The only problem is that there is no patient before us. Regarding the professional training of doctors, however, is this really "an unlikely concern," as argued by the Noda Biyehuda?[1]

Indeed, the Chazon Ish proposes a different approach, which at first glance appears much more logical:

The Noda Biyehuda and the Chatam Sofer [write] that if there is a sick person before us, one is permitted to disfigure a corpse for the sake of piku'ach nefesh, but if there is no sick person before us, this is forbidden. The difference is not between there being a sick person before us and there not being a sick person before us, but whether it is common. For at a time that we sound the blasts [even if there is no sick person before us] because of a disease that is spreading, it is like a case where the enemies are laying siege to a border town… Just as we do not prepare weapons on Shabbat during a time of peace, for were you to do so, you would cancel all the mitzvot. Rather, we do not include in the category of uncertain piku'ach nefesh future possibilities that have no basis in the present. And in fact we are not experts on the future. There are times that things we thought would save lives turn into a stumbling block. Therefore we do not consider things in the distant future. (Chazon Ish, Ohalot 22:32)

            The Chazon Ish soundly argues that whenever a disease is relatively common we view the situation as if there were a sick person before us. When, however, the disease is uncommon, we are not concerned about its breaking out in the future. The beginning of the passage implies that we are dealing here with a formal reservation, but the end of the passage clarifies that we are simply incapable of making calculations regarding piku'ach nefesh in the future. Perhaps, in another two years, a new cure will be discovered for a certain disease, making the autopsy superfluous. It may be argued, however, that if we are dealing not with a formal reservation, but with calculating probabilities, then such a case should still fall into the category of uncertain piku'ach nefesh.

R. Ya'akov Ettlinger, author of Arukh le-Ner, in the course of an entirely different discussion, proposed a different criterion for assessing uncertain piku'ach nefesh in the future:

Even though we are guided by the principle that nothing stands in the way of piku'ach nefesh, and that with respect to piku'ach nefesh, we do not follow the majority, this is only when there is a certain danger to life before us; e.g., where a building collapsed. In such a case, we are fearful about even the smallest minority. But when presently there is no piku'ach nefesh, but only fear regarding some future danger, then we follow the majority, as we do regarding prohibitions. For were this not true, how would it be permissible to sail out to sea or travel through a desert, things for which we must express gratitude for surviving? Why is it permissible to enter into danger and violate the prohibition, "Take good heed to yourselves" (Devarim 4:15)? Rather, you must conclude that since when the person sets out, there is not yet any danger, we follow the majority. (Responsa Binyan Tziyon, no. 137)

            According to R. Ettlinger, a distinction must be made between future danger and present danger. In the face of present danger, we consider all possible danger to life; in the case of future danger, on the other hand, we follow the majority, and do not consider every possible danger. What are the ramifications of this position regarding autopsies performed for the sake of medical training? It is highly likely that some of the medical students participating in such autopsies will utilize the knowledge gained from the procedures to treat patients suffering with the same disease. It should also be noted that there is room to question his proof: It is possible that sea and desert travel are not considered acute dangers, and clearly we do not regard every trivial danger as piku'ach nefesh. It is further possible that regarding the allowance to enter into danger, we follow the normal standards of human behavior, and "the Lord preserves the simple" (Tehilim 116:6). This is the position (without reference to the Binyan Tziyon) of R. Unterman[2] and also R. Shlomo Zalman Auerbach.[3]

            R. Herzog approaches this issue from a different angle in the context of a discussion of police activity on Shabbat. In the course of his discussion he cites another source relevant to the issue. His point of departure is a passage in Eruvin:

Mishna: All who go out to rescue may return to their place…

Gemara: This is difficult, for we have learned in a Mishna: "…One who comes to rescue from an invading troop, from a river, from a collapsed building, or from a fire, are treated like the inhabitants of the city and have two thousand cubits in every direction." And no more? But surely you said: "All who go out to rescue may return to their place" – even more! Rav Yehuda said in the name of Rav: They return to their place with their weapons. As it was taught: "At first they would leave their weapons in the house adjacent to the wall. Once they were detected by the enemy, who pursued them, and they entered [the city] to take their weapons, and the enemy entered after them. They pressed one upon the other and killed one another in greater numbers than were killed by the enemy. At that time, they enacted that they should return to their place with their weapons." Rav Nachman bar Yitzchak said: There is no difficulty; here where Israel defeated the nations of the world, and here where the nations of the world defeated them. (Eruvin 44a-45b)

            The Mishna teaches that those who set out on a rescue mission on Shabbat are permitted to return to the place from which they had set out. The Gemara asks why the rescuers are permitted to return home, even beyond two thousand cubits. The Gemara proposes two answers. According to the first answer,  they are not permitted to return home if it is more than two thousand cubits, but they are permitted to return with their weapons (apparently, even when this involves carrying from the public domain to the private domain). This is because of piku'ach nefesh, in the wake of an actual incident. According to the second answer, they are permitted to return home even beyond two thousand cubits when it was the enemy who had emerged victorious, here too apparently because of piku'ach nefesh.

            The Rambam, however, offers a different rationale for the allowance:

There is a mitzva upon all members of Israel who are able to do so to come and help their brothers under siege and rescue them from non-Jews on Shabbat, and they must not tarry until the conclusion of Shabbat. After having rescued their brothers, they are permitted to return to their place with their weapons on Shabbat, so as not to cause them not to come in the future. (Hilkhot Shabbat 2:23)[4]

            The Rambam writes that the reason for the allowance to return with their weapons is not immediate piku'ach nefesh, but so as not to cause them not to come in the future, i.e., so that they should not refrain from coming to their brothers' rescue in the future. It is not clear why the Rambam fails to mention the reason brought in the Gemara, because of the incident, etc. R. Yisraeli suggests that according to the Gemara's reason, it is not clear why the rescuers should not be required to remain where they are (at least in the case where they were victorious) together with their weapons, in which case they will not be in any danger, for the problem of immediate endangerment to life only arises when they leave without their weapons.

            Regarding this ruling of the Rambam, R. Herzog writes as follows:

Regarding policemen who go out to arrest a thief who has already been apprehended, but must be brought into custody, or else he will run away – here there is no direct piku'ach nefesh, but there exists a concern, as stated, that if there is no police response in such a case, there will be an increase of robberies on the holy Shabbat… Now earlier we cited the Rambam who permits those who come to rescue to return to their place with their weapons, lest if you be stringent with them, they will refrain from coming the next time. We understand from this that even a concern about piku'ach nefesh in the future constitutes grounds for allowance. Nevertheless the two cases are not entirely similar. First of all, it is not sufficiently clear here that the thieves are killers, for there are those who run away as soon as they are detected by people. And second, since the entire allowance is based on the argument that if we do no permit it, robberies will increase – surely the great majority [of policemen] unfortunately do not consider the rulings of the Rabbinate, and they in any event will not refrain from coming, and so the prohibition would not bring about an increase in robberies.

And in general, it is difficult to decide on an allowance because of the concern for piku'ach nefesh, for undoubtedly there must be some limit to the concern for piku'ach nefesh… This matter requires further study. (R. Y. Herzog, Be-Tzomet ha-Torah ve-ha-Medina, III, pp. 13-14)

            R. Herzog brings what appears to be a strong proof to allow Shabbat desecration for the sake of future piku'ach nefesh: The Rambam rules that those who go out on a rescue mission are permitted to return together with their weapons, apparently even in a place where this involves a Torah prohibition, and he offers the explanation (which does not appear in the Gemara) that we are afraid that if we do not permit this, the next time they will not go out to rescue. Thus we see that the Sages permitted the desecration of Shabbat because of possible piku'ach nefesh in the future
.

            There is another interesting point in the words of R. Herzog: He notes that his ruling will have no practical ramifications regarding piku'ach nefesh, for in any case most policemen will not listen to him. This is a very problematic halakhic-philosophical idea. Should a halakhic ruling be issued on the assumption that it will not be accepted, or should a halakhic ruling be issued with the hope that it will guide all of Israel?[5]

            R. Yisraeli, in his response to the position put forward by R. Herzog, greatly expands the allowance based upon future piku'ach nefesh, in contrast to the approaches of the Noda Biyehuda and the Chatam Sofer:

We learn from here the rule that even piku'ach nefesh that is not before us, neither at this moment nor afterwards, but it is clear to us that it will arrive at some point in the future - we view it as if it were already before us. For this obligation of "And he shall live in them" is constantly before us, not only with respect to life at this moment, but rather we are constantly commanded to worry about the saving of life that will have to be in the future, even though we don't know when or how… It seems then that there is also no room to make distinctions based on the frequency of that which will come in the future. For even if there is only a one in a thousand chance of it occurring, the saving of one life at some time in the future suffices to allow and to obligate performing these actions of Shabbat desecration, which fall into the category of preparations for such rescue. (Rav S. Yisraeli, Amud ha-Yemini, p. 212)

R. Yisraeli relies on the Rambam's position regarding those who go out to rescue, and also on the law regarding witnesses for the sanctification of the new month, who may come on Shabbat, even if they are not needed, so as not to cause them not to come in the future.

There is room here to raise another consideration. Thus far we have spoken about uncertain future piku'ach nefesh in the future in general terms. It is, however, necessary, to emphasize an additional factor, which was already implicit in our discussion of the Noda Biyehuda and the Chatam Sofer. I am referring to the distinction between individual and community. When we are dealing with uncertain piku'ach nefesh regarding a community, there may be additional grounds for allowance.

The Gemara in Shabbat states:

But surely Shemuel said: One may extinguish a lump of fiery metal in the public domain, that no injury should come to the public. (Shabbat 42a)

            The Ramban understands this ruling as follows:

One may extinguish a lump of fiery metal. Rashi explains that extinguishing here is not forbidden by Torah law, but only by rabbinic law, and where there is [potential] injury to the public, [the Sages] did not decree a prohibition… But in the Halakhot Gedolot I found that in the case of a coal of wood, there is no injury to the public. Why not? As long as it is not extinguished it remains red, and people see it, and do not come to suffer injury through it. But a fiery lump of metal burns even after its redness is gone, and people do not see it, and come to suffer injury through it. And R. Yehuda does not consider [potential] injury to the public, and Shemuel disagrees with him when there is [potential] injury to the public… And so too writes Rabbenu Chananel. And it is astonishing, how we permit an absolutely forbidden labor because of [potential] injury where there is no danger to life. Perhaps, according to Shemuel, all [potential] injury to the public is considered like a danger to life. (Ramban, ad loc.)

            The Ramban presents the position of the Geonim, according to which a fiery lump of mental constitutes a potential danger to the public, and "according to Shemuel, all [potential] injury to the public is considered like a danger to life." Therefore, argues Shemuel, it is permissible to extinguish a fiery lump of metal found in the public domain, even though this involves a violation of a Torah prohibition. R. Yisraeli brings another proof for this principle from the allowance to initiate an optional war and thus endanger the lives of soldiers for economic gain or political prestige. This is permissible because communal economic distress is regarded as a danger to life. What is the logic in this? Why is a hazard to the public regarded as piku'ach nefesh? R. Yisraeli offers a cogent explanation:

It seems that this is based on the idea that whatever concerns public welfare or removal of hazards, it is all regarded as piku'ach nefesh. For everything connected to public welfare has an indirect element of piku'ach nefesh. The livelihood of the individual, for example, does not involve piku'ach nefesh; but if the community will be without an income, even if it does not reach [a want for] bread, it is inescapable that one out of the many will be such that he must eat finer food, so that for him it can come to be piku'ach nefesh. And similarly every war that brings to greater prosperity, allowing us to deal more with the sick and feeble, which is not the case when economic conditions are depressed. And similarly regarding a war undertaken to enhance the king's reputation, it may be assumed that this will cause the enemies to be afraid to come, and those interested in making an alliance with him will increase, which will also lead to an improved economic state, and through this the public health will be enhanced. And similarly regarding the removal of a public hazard in the case of the fiery lump [of metal]. Even though in and of itself it is not dangerous, but it is possible that the injured party will not be able to go out to work, and it is also possible that he lives alone and will be unable to tell someone to come and help him, and thereby this little matter can lead to piku'ach nefesh. And similarly regarding other situations, that if we consider them in relation to an individual, [the danger] is distant and of no concern. Nevertheless, on the public level, it will happen in the end, and regarding piku'ach nefesh, this too must be brought into consideration. (Rav S. Yisraeli, Amud ha-Yemini, pp. 214-215)

            When we are dealing with the community, every little danger is liable to lead to piku'ach nefesh regarding people found on the outskirts of society. Even moderate economic shortage is liable to lead to situations of piku'ach nefesh for such people. R. Yisraeli appends this consideration as a supporting argument to allow police activity on Shabbat.

            Similar considerations are mentioned also in the name of R. Shelomo Zalman Auerbach:

The person who raised the question was a young man who served in the army in the intelligence corps, where they succeeded in intercepting a communications network of a hostile country and decoding its cipher. It was the soldier's role to decode the cipher by way of a computer. Obviously, this decoding involved the desecration of Shabbat. He told his commander that on Shabbat he preferred to decode only some of the messages, those regarding which in his opinion there is a high probability that they are relevant to Israel…

We went together to the Gaon, R. S.Z. Auerbach to ask his opinion, and he ruled that the soldier must decode all the messages… Even though there is no difference in Halakha between piku'ach nefesh of an individual and that of the community, and even for uncertain piku'ach nefesh of an individual we desecrate the Shabbat, nevertheless there is a great difference between them regarding the level of danger that is regarded as piku'ach nefesh… For example, people are not deterred from undertaking inter-city journeys, even though there is a certain risk factor, for argument's sake one in ten thousand. But there is no question that a head of state who would assume a one in ten thousand chance danger for his country would be regarded as irresponsible in his actions, for in the case of a community, such a level of danger is regarded as danger. Therefore, R. S.Z. Auerbach ruled that the soldier must decode all the messages, for they deal with matters relevant to national security, even though the same degree of danger in the case of a private person would not be regarded as piku'ach nefesh. (R. M.M. Farbstein, Assia LIII-LIV, 1994, p. 100)

            Here the rationale is not that the situation will lead to piku'ach nefesh on the fringes of society, as in the cases mentioned by R. Yisraeli. If there is a risk of war, the danger relates to the entire community, and not only to problematic extreme cases. R. S.Z. Aurbach raises a slightly different point: When we are dealing with a risk to the entire community, we do not take chances. R. Yisraeli had related to a case of danger that threatens an individual, but when the danger relates to a large community, it is close to certain that some individual will suffer injury. R. Auerbach relates to a case where the danger threatens the community as a whole.[6]

R. Goren goes one step further, sharpening the differences between piku'ach nefesh of an individual and piku'ach nefesh of the community. He argues that in the State of Israel there is the added element of governmental responsibility toward its citizens, and in light of this there is room to consider even distant concerns in the future:

The position of the Noda Biyehuda and the Chatam Sofer is correct and applicable from a halakhic perspective, but only when we are talking about Jewish doctors in the Diaspora, who bear no responsibility for the health of the people in the country. They are only bound by the mitzvah and the duty to treat patients who turn to them, but are not responsible for planning short-term or long-term medical services. Regarding them, the basic outlook of the great authorities mentioned above is correct, that in the absence of a sick person standing before them, they may not use the criteria of piku'ach nefesh in order to worry about sick people in the future, who may never appear before these doctors, and if they appear, this insubstantial possibility does not constitute a basis to permit Torah prohibitions for doctors, who are not responsible for medical services in the future.

However, when we are dealing with an independent Jewish state, where the government of Israel is responsible to design a medical system in the country for all its citizens, this national responsibility does not express itself in the daily individual planning of medical services in Israel, but rather in overall long-term responsibility. Surely it is clear that every year a significant number of patients requiring a transplant will be admitted to the country's hospitals. If we do not worry from the outset about organ donations, we will not be able to satisfy the many requests that will arise. (Rav S. Goren, Torat ha-Refu'a, p. 80)[7]

            R. Goren's assertion appears revolutionary; but it seems possible to formulate it in a more logical fashion. In the Diaspora, a posek rules for the individual doctors who ask him their questions. His halakhic position does not effect the entire medical system. In the State of Israel, however, the posek decides – at least in the optimal situation – for the government and the entire system, and therefore he must consider the effects of his rulings from an overall systemic perspective, taking into account far-off future considerations. It seems that we are not dealing with a special law applying to a state in the formal sense. Had a similar question arisen in the autonomous Jewish region that the Soviets had tried to establish in Azerbeijan, the law would have been the same: wherever the medical system is in the hands of Jews, and the halakhic rulings will have an impact on the systemic level, we must take such considerations into account.

            In light of this principle, R. Goren rules that autopsies for the sake of medical training should be permitted in the State of Israel, even according to the positions of the Noda Biyehuda and the Chatam Sofer (ibid., pp. 214-215).

FOOTNOTES:

[1] It should be noted that a question arises whether or not the prohibition to disfigure a corpse applies when the disfigurement is executed for some benefit. We shall discuss the issue in one of the coming lectures in this series dealing with the topic of autopsies.

[2] Responsa Shevet Yehuda, no. 19, letter 2.

[3] Shemirat Shabbat ke-Hilkhata, chap. 32, note 2. See also the words of R. Farbstein, Assia LIII-LIV, p. 103.

[4] Regarding the Rambam, see also Responsa Iggerot Moshe, Orach Chayyim, IV, no. 80 (who, in a particular case, permits a doctor to return home on Shabbat, even when this involves a Torah prohibition); R. Avidan, Shabbat u-Mo'ed be-Tzahal, pp. 39-48; R. Goren, Meshiv Milchama, I, pp. 236-242; Minchat Shelomo, I, no. 8 (who rejects the Iggerot Moshe); Sefer Assia IV, pp. 60-71.

[5] R. Yisraeli disagrees with R. Herzog on this point (see Amud ha-Yemini, p. 211) for the following reasons: 1) We do not take into account the fact that there are people who will not accept the halakhic ruling, but rather we rule for the entire nation. 2) Many have come to abandon observance of the mitzvot precisely because they thought that it is impossible to reconcile the Torah with national life. 3) There are times that the extra policeman who goes out on the mission will bring about the rescue; thus, even the Torah-observant minority among the policemen is significant. 4) R. Herzog's approach will lead to a reduction in the number of observant people in the ranks of the police, and this will have many negative consequences.

[6] It should be noted that the Netziv writes that the Torah cannot possibly require the coronation of a king, not in accordance with the spirit of the times, etc., "for a matter concerning government borders upon danger to life which sets aside positive precepts. Therefore it is impossible to absolutely command the appointment of a king, as long as the nation has not agreed to bear the burden of a king, after having seen that the surrounding countries are governed with greater order" (Ha'amek Davar, Devarim  17:14).

[7] See also pp. 155, 214, and 235.

(Translated by David Strauss)