Whether or not we are believers in the Obama plan, or any of the particular plans for universal health care currently winding their way through Congress, support for universal health care is an imperative in Jewish law. Although what is available in medicine and its cost have changed radically, particularly over the past century, the fundamental right to receive good care — and to be compensated for giving it — goes very far back in our heritage, though perhaps, ironically, not all the way to the Torah or even the Mishnah.
When physicians could not do much to heal a sick patient, their services were easily attainable, relatively cheap, and, frankly, not much sought after. “The best of physicians should go to hell,” the Mishnah says, reflecting people’s frustration in the second century C.E. with doctors’ inability to cure.
With the advent of antibiotics in 1938, as well as other new drug therapies, and, especially, new diagnostic and surgical techniques, however, there has been an immense increase in the demand for medical care, precisely as it has become much more expensive. This raises not only the “micro” questions of how physicians should treat a given person’s disease, but also the “macro” questions of how we, as a society, should arrange for medical care to be distributed. It is precisely this argument that is taking place in town halls and in the halls of Congress these days, sometimes in rational arguments but all too often in shouting matches that are clouding the real issues.
Jewish tradition imposes a clear duty to try to heal, and this duty devolves upon both the physician and the society. Jewish sources on distributing and paying for health care are understandably sparse, however, because before the 20th century, medical care was largely ineffective and inexpensive. The classical sources that describe distribution of scarce resources and apportioning the financial burden for communal services deal instead with questions like providing for the needy or rescuing someone from captivity, from highway robbers or from drowning. Still, those discussions raise moral problems and suggest solutions that are often similar to those associated with scarcity and cost in modern medical care.
One set of issues is this: Who should get what when medical interventions are scarce and/or expensive? The other set of questions is this: Who should pay for health care? I discuss at some length the answers that emerge from the Jewish tradition to both of these questions in Chapter 12 of my book, “Matters of Life and Death: A Jewish Approach to Modern Medical Ethics” (Jewish Publication Society, 1998). I will share here a general sense of how the Jewish tradition responds to these questions, which are at once so ancient and so contemporary. (For specific source references, visit this article at jewishjournal.com.)
The Distribution of Health Care: Five Criteria for Triage
If particular forms of medical treatment are scarce or expensive, who should get them? Although this question of triage is most dramatic when the decision is one of life or death, it affects the quality of people’s lives in less threatening situations as well. Who, for example, should get a hip replacement when society cannot afford to provide one for everyone who needs one? Who should have the benefit of a heart bypass operation or transplant, and who shall be denied that? Which AIDS patients should get the regimen of drugs now available to lengthen their lives, and for whom is that just too expensive? In the High Holy Days liturgy, “who shall live and who shall die” is God’s decision; but with the benefit and responsibility of today’s technology, we find ourselves all too often in the uncomfortable position of having the responsibility to decide that ourselves.
The rabbinic passages that might give us some guidance about triage go in five different directions:
Social hierarchy. One passage in the Mishnah determines priorities on the basis of the victim’s position in the hierarchy of society — with knowledge of Torah trumping all other social stations.
Close relationship. Jewish laws on charity provide a second reservoir of precedents that may guide the provision of health care. In concentric circles, you are most responsible for yourself first, then for those closest in relationship to you, then for the rest of your local Jewish community, then for all other Jews, and then for all other people.
A hierarchy of social needs. A third set of sources we might use as the basis for a Jewish ethic of the distribution of health care concerns the prioritizing of the community’s duties to fund specific needs. The Shulchan Arukh specifies the order of preferences as follows: “There are those who say that the commandment to [build and support] a synagogue takes precedence over the commandment to give charity [tzedakah, to the poor], but the commandment to give money to the youth to learn Torah or to the sick among the poor takes precedence over the commandment to build and support a synagogue.
One must feed the hungry before one clothes the naked [since starvation is taken to be a more direct threat to the person’s life than exposure]. If a man and a woman came to ask for food, we [Jews acting in accordance with Jewish law] put the woman before the man [because the man can beg with less danger to himself]; similarly, if a man and a woman came to ask for clothing, and similarly, if a male orphan and a female orphan came to ask for funds to be married, we put the woman before the man.
Redeeming captives takes precedence over sustaining the poor and clothing them [since the captive’s life is always in direct and immediate danger], and there is no commandment more important than redeeming captives…. Every moment that one delays redeeming captives where it is possible to do so quickly, one is like a person who sheds blood.”
The Shulchan Arukh recognizes the varying needs of the community — physical, educational, religious and social. Each can be easily justified in terms of broader Jewish commitments to life, human dignity, worship and other religious expression, education, economic solvency and close social ties. Consequently, if one were to create a contemporary list based on these Jewish values for funding communal projects in the United States, it would probably closely resemble the Shulchan Arukh’s list. Saving people who are threatened by human attackers would clearly come first, followed by providing food and clothing to prevent disease, followed by some order of curative health care, defense, education, culture and economic infrastructure.
A hierarchy of need. Yet a fourth possible criterion in Jewish sources is that health care should be provided to the ones who need it most. Thus the Shulchan Arukh includes the following: “We redeem a woman before a man. If, however, the captors are used to engaging in sodomy, we redeem a man before a woman.”
This ruling is clearly based on the author’s judgment of the relative needs of women and men in captivity. Since male captors would be more likely to rape female captives than to sodomize males, we must redeem women first, for they need to be saved not only from slave labor, but from sexual violation. If, on the other hand, the captors are known to sodomize male captives, we must redeem men first, for sodomy is, in this author’s estimation at any rate, an even greater threat to the captive’s life and dignity than rape is. Whether one agrees with that assessment or not, it is clear that the attempt of this ruling is to base the priority of recipients on who needs help most.
Equality: First come, first serve. Finally, a fifth strain in Jewish thought and law objects to any hierarchy, whether governed by social position, family ties, communal duties, or even relative needs of the specific individuals involved in the choice; instead, it emphasizes the equality of everyone, as each of us is created in the image of God.
Although this guideline for the distribution of health care evokes warm, universalistic feelings and stems from deep theological roots in our common origins as the creations of God, it suffers from the hard, pragmatic realities that prevent societies from giving all things to all people. These egalitarian principles, though, must have a call on all Jews who take their Jewish identity seriously.
The Cost of Medical Care
Who should pay for medical care? The Jewish tradition divides that responsibility among the physician, the individual, family members and the community.
Normally, Jewish law permits physicians to charge a fee for their services. Indeed, the Talmud opines that “A physician who charges nothing is worth nothing!” At the same time, there is great concern that the poor should have access to medical services. The Talmud thus approvingly sets forth the example of Abba, the bleeder, who “placed a box outside his office where his fees were to be deposited. Whoever had money put it in, but those who had none could come in without feeling embarrassed. When he saw a person who was in no position to pay, he would offer him some money, saying to him, “Go, strengthen yourself [after the bleeding operation].”
There are similar examples among medieval Jewish physicians, and the ethic must have been quite powerful because it is not until the 19th century that a rabbi rules that the communal court should force physicians to give free services to the poor if they do not do so voluntarily.
Today, not just the poor, but most people simply cannot pay for some of the new procedures, no matter how much money they have or can borrow. The size of the problem makes even conscientious and morally sensitive physicians think that any individual effort on their part to resolve this issue is useless. Moreover, the enormous costs of gaining a modern medical education must somehow be compensated for — to say nothing of ongoing malpractice insurance, overhead for their offices and for the hospitals in which they practice, staff, etc.
Indeed, like everyone, doctors have a right to earn a living, and Jewish law imposes a limit on them no less than on other Jews as to the percent of their income that they may donate to charity — specifically, 20 percent of their income. So although physicians have some responsibility to care for others gratis or at reduced rates, they alone cannot be expected to bear the burden of financing health care.
Individuals also bear some of the responsibility for paying for their own medical care, as they do for their ransom: “If someone is taken captive and he has property but does not want to redeem himself, we redeem him [with the money his property will bring] against his will.”
Although this source speaks of redemption from captivity and not health care, the duty to redeem captives is based on the danger to their lives in captivity, and thus this is a reasonable source for determining that an individual has a financial responsibility for his or her own health care. Moreover, one must pay for one’s own health care before one pays for anyone else’s, for saving one’s own life takes precedence over saving anyone else’s.
In addition to paying for his own health care, a man assumes an explicit obligation in marriage, according to Jewish law, to pay for the medical care of his wife, children and other relatives if they cannot care for themselves. Once again, the precedent for this comes from the laws of redemption from captivity: A father must redeem his son if the father has money but the son does not. A gloss, by Rabbi Moses Isserles: “And the same is true for one relative redeeming another, the closer relative comes first, for all of them may not enrich themselves and thrust the [redemption of] their relatives on the community.”
In today’s more egalitarian society, this would presumably mean that spouses of either gender have responsibility for the health care of each other and of their children.
The immediate implication of these teachings is that one may not preserve the family fortune and make the Jewish community or the government pay for one’s health care, except to the extent that the government itself makes provision for all sick, elderly citizens in programs like Medicare without restrictions as to a person’s income or estate. Options can include using one’s own assets or buying a health insurance policy, either privately or through one’s employer. Public aid, though, is limited to when and if one qualifies for aid to the poor through programs like Medicaid, or for the elderly, like Medicare.
The individual also has a duty to contribute to the medical care of others besides one’s family. Although this is never spelled out in just those words, the Rabbis, as we have seen, see the absence of health care as shedding blood. Since the physician alone cannot be expected to bear the costs of health care for those who cannot afford it, this duty devolves upon the community, and the costs of health care for the poor become part of the charity one must give. Maimonides asserts: “If a person wants to give no charity at all, or less than is fitting for him, the court compels him and flogs him for disobedience until he gives as much as the court estimates is proper. The court may even seize his property in his presence and take from him what it is proper for that person to give. It may pawn possessions for purposes of charity, even on the eve of the Sabbath.”
Thus, with donations from, or taxes on, its members, the community as a whole has the duty to pay for the health care of those who cannot afford it themselves. In medieval Spain, for example, Jews played a prominent role in the state’s program of socialized medicine, while in other places, Jewish communities, on their own, hired surgeons, physicians, nurses and midwives among their staff of salaried servants. Whatever the arrangement, the community as well as individual doctors were under the obligation to heal, and that was taken very seriously.
In turn, the community must use its resources wisely, a demand that can serve as the moral basis within the Jewish tradition for some system of triage. The community must balance its commitments to afford health care with the provision of other services. The Talmud lists 10 such services: “It has been taught: A scholar should not reside in a city where the following 10 things are not found: (1) A court of justice that can impose flagellation and monetary penalties; (2) a charity fund, collected by two people and distributed by three [to ensure honesty and wise policies of distribution]; (3) a synagogue; (4) public baths; (5) toilet facilities; (6) a circumciser (mohel); (7) a surgeon; (8) a notary [for writing official documents]; (9) a slaughterer (shohet); and (10) a school-master. Rabbi Akiba is quoted [as including] also several kinds of fruit [in the list] because they are beneficial for eyesight.”
Several items here are relevant to health care. Since there was no indoor plumbing then — actually until the 19th or even 20th century in many places — it was important for purposes of public health to have public baths and toilet facilities. The “surgeon” mentioned in the list was the person who could perform the most important form of curative care known at the time — letting blood. Finally, Rabbi Akiba’s addendum concerns one’s ability to procure healthy foods in the town, recognition that our choice of food is important on a preventive basis in assuring health. Because no community’s resources are limitless, and because social needs other than health care must also be met, the community must ensure that those who receive public assistance for health care deserve it.
Thus, if a person repeatedly endangers his or her health through practices known to constitute major risks, such as smoking, drug or alcohol abuse, or overeating, the community may decide to impose a limit on the public resources that such a person can call upon to finance the curative procedures she or he needs as a consequence of these unhealthful habits. The legitimacy of the community enforcing such limits is established in Jewish sources with regard to captivity, the case that has served as the paradigm for many of the rules of assessment of cost throughout this essay: “He who sold himself to a non-Jew or borrowed money from them, and they took him captive for his debt, if it happens once or twice, we redeem him, but the third time we do not redeem him…. But if they sought to kill him, we redeem him even if it is after many times.”
Everyone is assisted in overcoming the consequences of the first and perhaps even the second indiscretion that endangers the person’s life, but beyond that the community no longer has the duty to act.
Even when the person will definitely die unless something drastic is done, the community has the right to assess the chances of success before deciding to expend the resources. The Shulchan Arukh assumes that a high enough ransom will surely redeem the captive, even after many times, but some medical procedures do not carry that certainty. So, for example, smokers cannot rightfully expect the community to pay for repeated lung transplants, and alcoholics may not call upon the community to pay for repeated liver transplants. Indeed, in light of the shortage of organs for transplant, the cost of the procedure, and the bad prognosis for smokers and alcoholics to benefit significantly from such transplants, current medical practice denies them even one transplant. This policy is warranted from the standpoint of Jewish law: Individuals must take responsibility for the consequences of their behavior, especially after being duly warned through captivity, sickness, or, in our time, education.
Of course, those who have no resources to pay for health care may accept public assistance to procure it. In fact, they must do so, for to refuse needed care is to endanger their lives, which is, for Jewish law, tantamount to committing suicide. Still, the Shulchan Arukh strongly condemns those who use public funds for their health care when they do not need to do so, and it appreciates those who postpone calling upon the public purse for as long as possible: “Whoever cannot live unless he takes charity — for example, an elderly person or a sick person or a suffering person — but he forces himself not to take [communal funds] is like one who sheds blood [namely, his own] and he is liable for his own life, and his pain is only the product of sin and transgression. But anyone who needs to take [charity] but puts himself instead into a position of pain and pushes off the time [when he takes charity] and lives a life of pain so that he will not burden the community will not die until he sustains others, and about him Scripture says, ‘Blessed is the man who trusts in God.’”
Conversely, unless a given drug or medical procedure is so scarce that the government has put limits on who may obtain it even with their own money, individual patients who have the money to afford something that the government or their private plan does not provide may decide to pay for the drug or procedure privately. Individuals are free to spend as much of their own funds as they wish to redeem themselves or their relatives: “We do not redeem captives for more than their worth out of considerations of fixing the world, so that the enemies will not dedicate themselves to take them [Jews] captive. An individual, however, may redeem himself for as much as he would like….”
This could seem unfair, but it is only the unfairness built into any capitalist system. Jewish sources do not require that Jews use socialism as their form of government or their rule for distributing and charging goods.
Applying the Tradition to Contemporary America
On the basis of these Jewish sources, the entire community is responsible to ensure that all its members receive the health care they need. This does not mean that everyone should get every possible treatment, no matter how remote its possibility of benefit or how high its cost. The community has both the right and the duty to make considered decisions about how it will allocate its resources among its various responsibilities.
Those who can benefit most from the procedure must come first, and then first-come, first-served, regardless of social position, wealth, or relationships to the health care personnel involved. Jewish principles justify concern for the people of one’s own nation first in such procedures as the supply of organs for transplant and of rare, new drugs, unless international agreements can be reached to provide medical services, for example, to the citizens of any nation visiting another or in the organ transplant supply based on need, not nationality. It is only absent such agreements that concern for one’s own can legitimately come first.
The Jewish demand that everyone have access to health care does not necessarily mandate a particular form of delivery, such as socialized medicine or government-sponsored health insurance for those who cannot afford private plans. Any delivery system that provides basic needs will meet these Jewish standards. Thus, while President Obama’s original proposal for government-sponsored health insurance for those who cannot obtain or afford private insurance would surely fit Jewish criteria for meeting communal responsibility, so too would any other mechanism that provides basic minimum health care to everyone.
The fact, however, that more than 40 million Americans have no health insurance is, from a Jewish point of view, an intolerable dereliction of society’s moral duty. The Torah, the Prophets, and the Rabbis of our tradition all loudly proclaim that God commands us to take care of the poor, the starving and the sick. Given the current costs of health care, almost all of us fall into that category. On both moral and religious grounds, then, we simply cannot let the present condition continue; we are duty-bound to find a way to afford health care for all American citizens.
A pragmatic concern also requires that we act now. The fact that some of those people will ultimately get health care in the most expensive way possible — namely, in the emergency room, usually when they are sickest — means that the United States is currently neglecting its fiduciary responsibility to spend its communal resources wisely. We Americans spend about 15 percent of the gross national product on health care; our Canadian, Western European and Israeli friends spend about half that — 8 percent. Yet their morbidity and mortality rates are much lower than ours. Yes, they give up some of their autonomy in their health care, but the vast majority of Americans have very little choice now. We get what our employer provides — no more, no less.
It is time that we carry out our Jewish duty to manage our resources wisely as well as our obligation to provide health care for everyone. How we do that is a legitimate topic for debate, but we simply must do it.
Rabbi Elliot N. Dorff is the Distinguished Professor of Philosophy at American Jewish University and chair of the Conservative movement’s Committee on Jewish Law and Standards.