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Compulsory Immunization in Jewish Day Schools

Choshen Mishpat 427:8

Rabbi Joseph H. Prouser

She’eilah:

Our colleague, Rabbi Robert Abramson, Director of the Department of Education of the United Synagogue of Conservative Judaism, and Dr. Elaine R. S. Cohen, Associate Director, on behalf of the Solomon Schechter Day School Association, ask “whether a Solomon Schechter Day School may grant an exemption on Jewish religious grounds for a child whose parents refuse to permit immunizations.” Is there a basis in Halakhah to support a parent’s request for a religious exemption from state mandated immunizations?

Teshuvah:

The Book of Proverbs 23:12-13 offers sage counsel to parents regarding the well-being of their children: הביאה למוּסר לבך ואזנך לאמרי-דעת: אל תמנע מנער מוּסר -- “Devote your heart to instruction, your ears to words of knowledge: Do not withhold corrective measures from your child.” Both Gersonides and Ibn Ezra emphasize that this verse demands of parents both principled maintenance of their children’s spiritual condition and vigilant care of their physical health and safety. תשׁמרנוּ שׁלא ימוּת מיתת הגוּף בלא ימיו ושׁלא ימוּת החלק אשׁר בוֹ שׁאפשׁר שׁישיג החיים הנצחיים -- “Protect your child, that he not suffer physical death prematurely, and so that the part of him which allows him to attain eternal life not die.”¹ Similarly, תציל שׁלא ימוּת הנפשׁ במיתת הגוּף אוֹ תציל שׁלא ימוּת טרם עתוֹ -- “Intervene so that the soul not die with the death of the body, and intervene so that your child not die before the appointed time.”²

The requirement of parental responsibility for a child’s religious development and physical safety, affirmed by Proverbs and its commentaries, finds explicit halachic expression. האב חייב בבנוֹ למוּלוֹ ולפדוֹתוֹ וּללמדוֹ תוֹרה וּלהשיאוֹ אשׁה וּללמדוֹ אוּמנוּת. וי“א אף להשׁיטוֹ במים. -- “A father’s obligations to his son are to circumcise him, to redeem him, to teach him Torah, to see to his marriage, and to teach him a trade. Some say also, to teach him to swim.”³

The “dual curriculum” here prescribed, comprising a religious education ( ללמדוֹ תוֹרה ) as well as knowledge necessary to securing a livelihood ( ללמדוֹ אוֹמנוּת ), anticipates the goals of the modern Jewish Day School. The added requirement of swimming lessons ( להשׁיטוֹ במים ) speaks to the duty of parents to take appropriate steps to obviate foreseeable dangers to their children. -- שׁמא יפרוֹשׁ בספינה ותטבע ויסתכן אם אין יוֹדע לשׁוּט

“Perhaps he will travel by ship and, should it founder, he will come to danger if he does not know how to swim.”⁴

The obligation of a parent to provide for the physical needs of minor children⁵ is determined כפי צרכן בלבד -- “strictly on the basis of the children’s needs,” not the means or discretion of the parent.⁶ Implicit among the halachic obligations of parent to child is the duty to “watch carefully over his health. Protect him as far as lies in human power from sickness and deformity.”⁷

Today, the potential threats to a child’s health and safety which a parent can reasonably be expected to anticipate -- and for which effective protective measures are readily available -- are numerous, well-known, and constitute a more present danger than the theoretical perils of future sea travel. As with children’s religious and general studies, professional educators may need to play a decisive role in addressing these dangers.

I. Childhood Disease and State Mandated Immunization

“Infants immunized according to the current consensus guidelines have received up to 18 separate injections for protection against 12 different infectious diseases by the time they reach two years of age.”⁸ A combination vaccine, Pediarix, developed in 2003, immunizes simultaneously against diphtheria, tetanus, pertussis, polio, and hepatitis-B, eliminating as many as six of these injections.⁹ Vaccines, administered for the prevention of infectious diseases, are a suspension either of killed micro-organisms (bacteria, viruses, rickettsiae, or their derivatives), or of live micro-organisms which are “attenuated” or weakened, “leading to loss of their virulence but retention of their ability to induce protective immunity.”¹⁰ Because of their success in eradicating smallpox and dramatically reducing the incidence of other once common diseases such as measles, diphtheria, mumps, and polio, “the Centers for Disease Control and Prevention (CDC) lists vaccination practices among the top 10 public health achievements of the 20th century.”¹¹ State-mandated immunization, however, began in the early nineteenth century.

The United States Supreme Court established the right of the states to compel citizens to submit to vaccination in a 1905 case, Jacobson vs. Massachusetts. The case originated with Jacobson’s refusal to comply with a Cambridge city ordinance requiring residents to be vaccinated against smallpox. He was fined $5.00. Even in 1905, the court decision observed:

“For nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of small pox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive.”¹²

Students of Jewish tradition should note with interest and satisfaction the jurisprudential origins of the Massachusetts law affirmed by the U.S. Supreme Court, in early American Covenant Theology, rooted firmly in the Hebrew Bible.

“In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’”¹³

Noting the danger to the public weal inherent in Jacobson’s failure to immunize, and his consequent potential as a source of contagion, the Supreme Court described the alternative to compulsory vaccination: “The spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population.”

This issue was not new to Massachusetts in 1905. Boston had sought to impose vaccination as a condition of enrollment in public schools as early as 1827. The commonwealth enacted a state-wide school vaccination law in 1855, followed by New York in 1862, Indiana in 1881, and Illinois and Wisconsin in 1882.¹⁴ Currently, all fifty states require immunization against childhood disease as a condition of school enrollment.¹⁵ Every state in the union requires DTP¹⁶ (diphtheria/tetanus/pertussis) and MMR¹⁷ (measles/mumps/rubella) vaccines. Every state, with the single exception of Oklahoma, also requires immunization against polio (OPV or IPV).¹⁸ Thirty-one states require vaccination against hepatitis B, while thirty require the more recently developed varicella “chicken pox” vaccine. Only six states require the Hib (haemophilus influenzae type B) vaccine.

Predicating admission to public and private schools alike on the currency of childhood immunization is thus “a core component of vaccination policy in the United States.”¹⁹ The situation in Canada is quite different.²⁰ The Canadian Constitution precludes government-mandated immunization. Nevertheless, three provinces have “legislation or regulations under their health protection acts to require proof of immunization for school entrance.”²¹ While these laws do not constitute state-mandated immunization, they require parents formally to refuse or, alternatively, they serve as a reminder to willing parents to immunize their children. Ontario and New Brunswick require immunization against diphtheria, tetanus, polio, measles, mumps, and rubella. Manitoba requires only measles vaccination. As a telling consequence of Canada’s legal bars to mandatory immunization, “all provinces and territories have regulations that allow for the exclusion of unvaccinated children from school during outbreaks of vaccine-preventable diseases.”²²

The impact of state-mandated immunizations on public health has been profound. In addition to the eradication of small pox, no wild polio was reported in the United States for 25 years. This remarkable record of prevention remained intact until 2005, when four cases of polio were diagnosed in Minnesota.²³ It was reported -- coincidentally, on Yom Kippur 5766 -- that all four victims were Amish, and had declined immunization, as is the frequent custom in their religious community. Furthermore, “it is possible that by the end of this decade, measles and varicella, two of the most infectious and previously universal diseases of children, with massive levels of morbidity and significant mortality, may become of historical interest only.”²⁴ Already, “the increasing coverage of young children with varicella vaccination, partly due to daycare and school entry requirements, has led to documented decreases in varicella disease incidence of 71% to 84%, affecting all age groups.”²⁵

Conversely, the United States’ “measles resurgence between 1989 and 1991, with more than 100,000 cases and 120 deaths, was a result of low vaccine coverage in pre-school children.”²⁶ An estimated 530,000 measles deaths occurred world-wide in 2003. Owing to aggressive World Health Organization (WHO) vaccination programs, this represents a significant improvement over the 873,000 such fatalities in 1999.²⁷ Childhood immunization has been credited with preventing 3.2 million deaths from measles and 450,000 cases of polio each year.²⁸

Similarly, pertussis (whooping cough) has returned to epidemic levels in the United States due, in significant part, to declining vaccination rates.²⁹ 18,957 cases were reported in 2004, almost double the 9,784 cases in 2003. In the 1980’s the annual average was 4,400 cases. “Whooping cough was one of the leading causes of infant mortality before the vaccine was introduced in the 1940’s, and it still kills almost 300,000 children annually worldwide... Medical experts predict that the number of pertussis cases will continue to grow rapidly.”³⁰ Dr. Margaret Cortese, a medical epidemiologist with the CDC’s National Immunization Program, discusses the imminent danger of declining vaccination: “The pool of susceptible people has built up so that it takes only one sick person to start a serious outbreak.”³¹ In the current epidemiological climate, timely immunization of infants and children is critical. “Delaying innoculations by even a month or two can make children more vulnerable.”³²

The benefits and goals of immunization transcend the personal protection afforded the individual recipient. Each immunized individual contributes to achievement of “herd immunity.” This term signifies the prevalence of immunization at which a community or society -- some members of which remain unimmunized -- is likely to break an infectious disease’s chain of transmission. By establishing “herd immunity,” a community decreases the possibility that it will develop or sustain an epidemic of the disease, even with less than 100% immunization. The more densely populated an area, the higher the threshold required to establish herd immunity. Densely populated urban centers may require 99% immunization to assure herd immunity, while rural populations may require 94% or 95%.

It should be noted that actual immunity levels in a community are somewhat lower than recorded rates of vaccination, as some immunizations are ineffective or only partially effective on certain patients. Similarly, students who spend long hours in close proximity and protracted contact with each other -- even if drawn from a rural environment -- require a higher rate of immunization than the general population in order to reduce the likelihood of a susceptible child coming into contact with an infected school-mate. Since the immunity conferred by vaccination is necessarily imperfect and varies in level from patient to patient, even immunized children are placed at some risk when herd immunity is compromised, especially in the closed environment typical of a school... and, in particular, within the still more intimate nature typical of a Day School.

Immunization of a child thus provides the recipient with protection from infectious and life-threatening disease. Children’s personal immunity in turn bestows a further benefit on others in the community, both by effectively removing the immunized students as sources of contagion, and by contributing to “herd immunity” -- thereby disrupting the chain of transmission and reducing the likelihood of epidemic.

Conversely, failure to immunize places a child (and the child’s immediate contacts -- whether or not they have been immunized) at grave personal risk. The child’s resulting susceptibility reduces “herd immunity,” compounding the danger to the surrounding community. Refusal to immunize also exploits the benefits of herd immunity, protecting one’s child through others’ submission to vaccination (with its inherent if eminently reasonable risks) while taking no responsibility for the health and safety of others.

State-mandated immunization as a prerequisite to enrollment in school thus enhances the health of individual students, provides for the safety of the broader community, and helps to establish social equity and civic responsibility.

II. Objections to Immunization

Conventional medical wisdom dictates that “timely vaccination is a basic and necessary requirement for appropriate pediatric care.”³³ Nevertheless, a substantial “anti-vaccine” movement has emerged, articulating a number of objections to the practice of routine immunization of children. For example, under the chapter sub-heading “Mass Immunization = More Illness,” one commentator observes, “Since the late 1950’s, when mandatory mass vaccinations started in the United States, there has been an increase in the incidence of immune system and neurological disorders.”³⁴ Perhaps the most persistent and frightening allegation has been the proposed correlation between vaccines (particularly MMR) and the onset of autism.³⁵ It has been more specifically alleged that autism is caused by thimerosal, a preservative used in some vaccines,³⁶ though contrary to the popular misconception, never in MMR.³⁷ In point of fact, “the preponderance of evidence tells us that autism happens to our children before birth, not after... Embryologist Patty Rodier’s work puts the date for some or many cases of autism as early as days 20 to 24 after (sic) gestation.”³⁸ The scientific evidence against a correlation betwen vaccination and autism (as, too, with ADHD and speech or language delay) appears overwhelming. The Centers for Disease Control and Prevention (CDC) reports that the Institute of Medicine (IOM) found no correlation after rigorously researching the theory. The IOM’s Immunization Safety Review Committee examined:

“five new epidemiological studies examining thimerosal-containing vaccines and autism, which consistently provided evidence of no association, despite the fact that they utilized different methods and examined different populations (in Sweden, Denmark, the United States and the United Kingdom); and nine controlled observational studies, three ecological studies and two studies based on passive reporting system in Finland which consistently showed evidence of no association between the MMR vaccine and autism. The committee also examined several other studies which reported findings of associations between vaccines and autism, but described these as methodologically flawed, having non-transparent analytic methods (making their results uninterpretable), and/or non-contributory with respect to causality.”³⁹

A study conducted in Yokohama, Japan demonstrated that diagnoses of autism spectrum disorders (ASD) “most notably rose dramatically”⁴⁰ among children born in 1993 -- among whom “not a single vaccination was administered.” In the five preceding years, ASD diagnoses mounted even as vaccination rates dropped precipitously. The study concludes that exposure to immunizations “cannot explain the rise over time in the incidence of ASD” and that witholding vaccines “cannot be expected to lead to a reduction in the incidence of ASD.”

A number of factors may contribute to the perceived rise in autism rates following introduction of routine immunization of infants. Children with autism typically show no sign of the condition for 12 to 18 months. Regardless of whether they have been vaccinated, these children then experience a developmental plateau or regression some time after the first birthday. Since immunizations are scheduled and administered around this same time frame, parents of vaccinated children have at times concluded erroneously, post hoc, ergo propter hoc: “Onset of autism follows immunization, therefore autism is because of immunization.”⁴¹ Their logic is flawed: “A third world child with autism who received no vaccinations of any kind might show exactly the same pattern.”⁴² It is sadly understandable that a parent would prefer to identify an external cause for a beloved child’s developmental crisis, rather than confront genetic causation, or attribute such a setback to mere chance.

A Mayo Clinic study has suggested a number of other causes for the increase in autism. These include “improved awareness, changes in diagnostic criteria and availability of services, not environmental factors or immunizations.”⁴³ Changes in diagnostic criteria suggests that more cases of children with autism can be identified, and that a broader range of conditions and symptoms has been included on the “autism spectrum” -- not that more children have actually manifested these symptoms.

It seems clear from the research of the Mayo Clinic, CDC, and numerous other studies, that allegations of a causal relationship between vaccines and autism (and other maladies) represent a far greater health threat than the immunizations they impugn. “The decreased immunization rates in England and Ireland, secondary to the inappropriate linking of autism with measles vaccine, were soon followed by 308 reported cases of measles in England and a more major epidemic in Ireland.”⁴⁴

The preponderance of scientific evidence not only eliminates vaccines as a cause of autism, it suggests that the MMR vaccine has in fact spared children from the condition. Congenital rubella syndrome, a known cause of autism, occurs when a woman contracts German measles (rubella) during pregnancy. Routine immunization has virtually eradicated German measles and, therefore, untold cases of autism in the children of women who might otherwise have become infected.⁴⁵

Opposition to vaccines has also been voiced by advocates and practitioners of alternative health care disciplines, including homeopaths and chiropractors, dating to the founder of chiropractics, D.D. Palmer. “The National Chiropractic Association, the predecessor organization to the American Chiropractic Association, opposed the polio vaccination program in the 1950’s.”⁴⁶ It has been reported that one third of surveyed chiropractors today agree that “there is no scientific proof that immunization prevents disease.”⁴⁷ Similarly, many homeopaths discourage immunization; some reject the germ theory of disease outright, attributing disease to an “energy imbalance.”⁴⁸

A variety of religious groups have articulated objections to immunization, often on the grounds that aggressive medical intervention interferes with Providence. A pronounced elevation in incidence of disease is well documented among such groups. “When, for instance, a virulent outbreak of smallpox occurred in Montreal in 1885, it was soon controlled among the Protestant population through vaccination, but Catholics suffered incredible losses of life as their clergy opposed compulsory vaccination on theological grounds.”⁴⁹

Jehovah’s Witnesses have dropped their ban on vaccination, but Christian Scientists and the Amish⁵⁰ continue to reject vaccines as part of a general tendency to eschew medical treatment. Today, those “faiths which discourage the use of vaccines tend to lie outside the pale of Christian orthodoxy, either due to aberrant theology, extreme legalism, or both.”⁵¹

The scope of the danger to public health represented by religious objections to immunization is demonstrated by a recent, major epidemic of polio on the African and west Asian continent. Islamic preachers in Nigeria instructed parents not to have their children immunized. They claimed vaccines were being employed in an American conspiracy to infect Muslims with AIDS or to render them infertile.⁵² The result was a resurgence of paralytic poliomyelitis in sixteen previously polio-free countries. The health crisis precipitated Saudi Arabia’s unprecedented requirement that pilgrims participating in the annual hajj provide proof of immunization.⁵³

The Jewish community has also experienced outbreaks of infectious disease linked to widespread failure to immunize. While no specific religious objection to vaccination was articulated, “90 children under 9 years, four teenagers, and three adults from an Orthodox Jewish community in Salford have been notified with measles... total number of cases is believed to be significantly higher.”⁵⁴ The cases, reported in December 1999 and January 2000, were among unvaccinated children from the same community. During the same period, several cases of measles were also reported in East London’s Orthodox community.

Around the same time, in 1999 and 2000, the Netherlands suffered a measles epidemic of some 3,000 cases. “94% of the infected patients had not been vaccinated; most were members of a religious community who refused immunization for their children.”⁵⁵ It should be noted that this epidemic occurred despite a national MMR immunization rate of 96%. The conservative Protestant group most heavily affected by this epidemic suffered three fatalities.⁵⁶

In the United States, 48 of the 50 states provide for religious exemptions from mandatory childhood immunization, if such procedures contradict parents’ religious beliefs. Only Mississippi and West Virginia have no such statutory provision.⁵⁷ The specifics of state religious exemption laws vary. Arkansas, for example requires a “recognized church or denomination whose teachings forbid vaccination.”⁵⁸ Delaware demands only a “belief in relation to a Supreme being.”⁵⁹ Additionally, 18 states have a “philosophic exemption” for parents who express personal beliefs, not necessarily of a religious nature, that deem vaccination objectionable.

The risks incurred by religious exemptors are significant, as are the risks that accrue to others through exemptors’ susceptibility to disease. According to one study, “exemptors were 35 times more likely to contract measles than were vaccinated persons.”⁶⁰ Likewise, exemptors were “5.9 times more likely to acquire pertussis than vaccinated children... Schools with pertussis outbreaks had more exemptors than schools without outbreaks. At least 11% of vaccinated children in measles outbreaks acquired infection through contact with an exemptor.”⁶¹

Principled objection to any medical intervention as interference with Providence is generally to be considered foreign to Jewish Law and tradition.⁶² Rabbi Isaac Klein emphasizes this point early in his basic introduction to medical ethics, A Time to be Born, A Time to Die, prepared for United Synagogue Youth. He cites the famous story of Rabbi Akiba and Rabbi Ishmael remonstrating with a “tiller of the soil,” a farmer, who questioned the religious propriety of medical treatment of the sick as trespassing in God’s domain:

“Could you not infer from your occupation that which is written, ‘as for man, his days are as grass’ (Psalms 103:15). Just as with a tree, if it is not fertilized, plowed, and weeded, it does not grow; even if it already grew but then is not watered, it dies. So the body is like the tree, the fertilizer is the medicine, and the farmer is the doctor.”⁶³

The 11th century moral philosopher, Bachya ibn Pakuda, expressed a similar sentiment:

“Even though a man’s days are decided beforehand by God, one should engage in obtaining food and clothing... according to his needs. He should not say, ‘If God wishes me to live, he will sustain me without food, so I will not trouble myself to find food.’ Similarly, one should not endanger himself relying solely on his trust in God.”⁶⁴

Some Jews have expressed concern about non-kosher or halachically objectionable ingredients in various vaccines, including monkey kidney cells and human fetal tissue as stabilizers. The kashrut of ingredients does not impinge on the permissibility of injected medication, as has been established in regard to the porcine origins of some insulin components used by diabetics.⁶⁵ The permissibility even of oral administration of medication with non-kosher ingredients, if a necessary, life-saving procedure, is well established: אין לך דבר שׁעוֹמד בפני פקוּח נפשׁ -- “Preservation of life overrides all other considerations.”⁶⁶

Religious and philosophical exemptions from mandatory immunization are invoked only in cases where vaccination is not otherwise contraindicated. “All states permit medical exemptions for individuals who are immunocompromised, have allergic reactions to vaccine constituents, have moderate or severe illness, or other medical contraindications to vaccination.”⁶⁷ Since the advent of the DTaP (diphtheria-tetanus-acellular pertussis) vaccine, medical exemptions due to serious reactions to vaccines have decreased precipitously. Low-grade fever following immunization is not a contraindication for additional vaccines. Valid medical exemptions are properly an increasingly rare occurence (as for HIV infected children, those with congenital immune deficiencies, cancer patients undergoing chemo-therapy, etc.). Those with allergies to certain vaccines are not necessarily precluded from receiving other vaccines which do not contain the objectionable ingredient (egg protein, e.g.). “In general, there are few absolute contraindications to receiving any vaccine for the first time or subsequent doses in a series.”⁶⁸ The role of medical exemption was anticipated by Nachmanides, who famously observed, “That which heals one patient may kill another.”⁶⁹ Medical exemption requires merely a letter or other documentation from a physician. Naturally, the risk to others from children who remain unvaccinated is in no way diminished simply because they refrain from immunization for legitimate medical reasons.

It must be conceded that many parents seeking non-medical exemptions from mandatory immunizations for their children, do so based not on religious conviction or philosophical principle, but in response to rumor and fear, or so as to spare their children the minor pain associated with injections, and the temporary discomfort, soreness, and fevers which may result. This entirely understandable compassion is made all the more tempting by the protection afforded by high immunization rates and a presumed herd immunity. “Vaccines are becoming a victim of their own success -- many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build.”⁷⁰

III. Vaccination in Halachic Literature

Enthusiastic halachic support for immunization protocols emerged even before the introduction of Edward Jenner’s effective vaccine against smallpox in 1796. Rabbi Abraham Nanzig⁷¹ wrote a brief but impassioned treatise entitled Aleh Terufah, published in London in 1785. Nanzig, who had lost a son and a daughter to smallpox, endorsed the practice of variolation, a precursor to the more effective vaccine. (Nanzig refers to variolation as אינאקאלאציאהן -- “inoculation.”) Variolation involved the deliberate infection of patients with smallpox or cowpox, causing a mild form of the disease, but resulting in immunity to small pox upon recovery, essentially the same principle operative in more refined and reliable vaccines.⁷² Nanzig offers this approbation:

והן עתה בחמלת ה‘ על ברוּאיו השׁיב ידוֹ מבלע זה כמה וּבלב כל חכם לב רוֹפאי זמנינוּ נתן חכמה וּתבוּנה בהמה שׁהמציאוּ לזה רפוּאה כוֹללת כמעט מחוּסר סכנה.

“Now in God’s compassion for His creatures, He has withdrawn His hand from this destructive disease somewhat, granting skill⁷³ and understanding to the skilled physicians of our time, who have discovered an effective, almost risk-free treatment for this.”⁷⁴

Nanzig succinctly states the subject of his research: אם הוּתר לאישׁ הישראלי להשׁתמשׁ ברפוּאה זוֹ, שׁישׁ בה לפי הנראה סכנה קצת כדי לסלק סכנה גדוֹלה הבאה לשׁעתה אם לאו -- “Is it or is it not permissible for a Jew to use this treatment which, it appears, involves exposure to a minor risk in order to obviate a great risk yet to come?” In a remarkably early and concise expression of the discipline of Jewish medical ethics, Nanzig explains that his methodology will necessarily draw upon ידיעת החכם ובקיאת הרוֹפא -- “the knowledge of the Sage and the expertise of the physician.”⁷⁵ The type-face in the original is altered to emphasize that this phrase forms an acrostic for the Tetragrammaton -- a bold assertion of the sanctity of the author’s task, as well as the godliness of seeking medical care!

Focusing on the moral and halachic quandary of exposing a healthy child to infection through variolation, Nanzig reasons: והרי הוּא כמוֹ שׁהוּא חוֹלי בפנינוּ שׁכל ימיו הוּא מתחוֹלל וּבדאגה על זה שׁלא יפגע בוֹ כשׁהוּא גדוֹל שׁאז הוּא מסוּכן יוֹתר כנוֹדע -- “It is as if we were treating an illness currently present, since all his days he suffers with worry that he will contract the disease as an adult, when it is more dangerous, as is well known.”⁷⁶ Indeed, Nanzig concludes that המשׁתדל ברפוּאה הנ“ל בעוֹדוֹ באבוֹ ה‘ לא יחשׁב לוֹ עון אבל הוּא מן הזריזוּת וּמצוה דונשׁמרתם לנפשׁוֹתיכם -- “One who undergoes this treatment while still healthy, God will not consider it a sin. Rather, it is an act of eager religious devotion, and reflects the Commandment to ‘be particularly careful of your wellbeing’ (Deut. 4:15).”⁷⁷

The very real danger inherent in variolation was painfully clear to all of eighteenth century London. A son of King George III had died as a result of the procedure.⁷⁸ Nevertheless, Nanzig asserts: ועל מה שׁמתוּ אחד מאלף אין זה כדאי לכנוֹתוֹ בשׁביל זה לסכנה... למעוּטי דמעוּטי כזה לא נחוּשׁ לסלק בשׁביל כך תוֹעלת גדוֹל כזה -- “As for the death of one in a thousand, this is insufficient grounds to classify it as a danger... For such a negligible risk as this, we do not reject so great a benefit.”⁷⁹ The .001 likelihood of contracting smallpox from variolation was considered negligible in 1785, when the mortality rate for those otherwise unprotected from smallpox was so much greater. A “one in a thousand” risk is considered entirely unacceptable today. Heather Brannon, M.D., calculates⁸⁰ that even 50 years ago, smallpox vaccines carried a fatality risk of approximately one in a million: one thousand times safer than the procedure endorsed by Nanzig. The safety of childhood immunizations currently administered is greater still. For example, the OPV has been widely rejected in the United States due to the one in 2.4 million likelihood of contracting polio from the vaccine.⁸¹

Nanzig cites a still earlier medical protocol aimed at producing limited immunity against smallpox. This was described to him by Rabbi Shalom Buzagli,⁸² an expatriate of Morocco serving on London’s Ashkenazi Bet Din. Buzagli reported that a child who had survived smallpox and was in the final stages of recovery would be given a handful of raisins to hold until they were warmed by his hand. The raisins would be given to a healthy child to eat, producing the same effect as variolation: mild infection resulting in immunity. The halachic import of this precedent is made explicit: אנשׁי שׁם מגדוֹלי ישראל, ורבינוּ יצחק האלפאסי היתה ישׁיבתוֹ בפעסי בברברי‘ ולא מיחוּ בידם שׁ“מ שׁנתברר להם דרכי ההתר. --

“Men of renown among the great scholars of Israel, and the Yeshiva of Rabbeinu Yitzchak Alfasi (the Rif), are in Fez in Barbary,⁸³ and they did not prevent them from using this treatment. From this we may infer that they considered it permissible.”⁸⁴

Following Nanzig’s example, Jenner’s discovery of vaccination was “hailed with enthusiasm by Israel Lipschuetz and other leading rabbis.”⁸⁵ Lipschuetz, author of Responsa Tipheret Yisrael, also listed “Edward Jenner as a ‘Righteous Gentile’ for the development of the smallpox vaccine that saved hundreds of thousands of lives.”⁸⁶

The permissibility of Jenner’s vaccine having been well established, the procedure was treated as compulsory by Rabbi Nachman of Bratzlav (1772-1811), to whom the following ruling is attributed:

צריכים להזהר מאד מאד בבריאוּת שׁל ילדים, וּבפרט בעוֹדם קטנים, ואל יקל בזה כלל...ואמר רבינוּ ז“ל, שׁצריכים להעמיד לכל תינוֹק פּאקין קדם רבע שׁנה, כי אם לא, הוּא כמוֹ שׁוֹפך דמים, ואפילוּ אם גרים רחוֹק מן העיר, צריך לנסוֹע לשׁם אפילוּ בזמן שׁהקוֹר גדוֹל וכוּ‘.

“We must be exceedingly careful about the health of children, especially while they are still small. One should in no way be lax in this matter... Our Rabbi, of blessed memory, said that one must vaccinate every baby against smallpox before the age of three months, for if he does not do so, he is like one who sheds blood. And even if one lives far from the city, one must travel there even if the season is very cold, etc.”⁸⁷

Bratzlav Chassidim have expanded the instruction of their Rebbe to include more recent innovations in immunization:

וכן בעתים הללוּ מה שׁנוֹתנים לתינוֹק אילוּ רפוּאוֹת נגד כל מיני מחלוֹת רעוֹת כמוֹ שׁתוּק, רחמנא לצלן, וכדוֹמה, צריכים לעשוֹת זאת, ואל יהיה חכם בעיניו, כי זוֹהי סכנת נפשׁוֹת.

“And so, too, in our time, when children are given immunizations against all kinds of serious illnesses, like paralytic poliomyelitis (God save us!) or the like, we must act accordingly. Let no one think himself clever by evading this, for it is a matter of mortal peril.”

It is instructive that so unambiguous an endorsement of immunization as a religious duty is linked to Rabbi Nachman, who was famously skeptical of physicians (“It was difficult for the Angel of Death to kill everybody in the whole world, so he appointed doctors to assist him”⁸⁸). He distrusted “modern” medicine as the contemporary equivalent of magic and sorcery!⁸⁹

The Responsa Committee of the Central Conference of American Rabbis, in a 1999 ruling, affirmed the propriety of a Reform congregation’s religious school denying admission to students whose parents refused to have them immunized:

“Jewish tradition would define immunization as part of the mitzvah of healing and recognize it as a required measure, since we are not entitled to endanger ourselves or the children for whom we are responsible... There are no valid Jewish religious grounds to support the refusal to immunize as a general principle.”⁹⁰

Noteworthy is the concurring opinion of a leading Orthodox body, submitted as an amicus curiae brief to the Supreme Court of the United States:

“Agudath Israel takes both moral and legal exception to the notion that a person enjoys unfettered personal autonomy... Society has the right to compel citizens to submit to vaccination... to insist that a child receive life-sustaining treatment even over the religiously motivated opposition of his parents.”⁹¹

Rabbi Hershel Schachter, Rosh Yeshiva of Yeshiva University’s Rabbi Isaac Elchanan Theological Seminary, has asserted that “where vaccines are mandated by the state, such as in the case of immunizations before entering school, one would be obligated to be immunized based on the concept of Dina d’Malchuta Dina [the law of the land is the law].’”⁹²

Rabbi Shlomo Zalman Auerbach, until his death in 1995 the dean of Orthodox Israeli poskim, ruled that it is permissible to set aside Shabbat in order to receive an immunization, if foregoing the Sabbath opportunity would necessitate an unacceptable delay,⁹³ thus creating a potentially life-threatening situation.⁹⁴

Our colleague, Rabbi Elliot N. Dorff, concludes that the parental obligation to secure children’s immunization against infectious disease is unambiguous:

“It would be a violation of Jewish law... for a Jew to refuse to be inoculated against a disease, at least where the inoculation has a proven track record of effectiveness. Jews, to the contrary, have a positive duty to have themselves and their children inoculated against all diseases where the preventive measure is effective and available.”⁹⁵

The positive disposition of rabbinic literature and halachic decisors toward immunization -- a pattern sustained as technology and medical science were refined over three centuries -- reflects our tradition’s well established preference for preventive medicine as a religious mandate. “The wide acceptance of vaccinations and the protection against illness that they afford, even in the face of small actual risk for acquiring disease, would seem to give them the status of a mitzvah.”⁹⁶

IV. The Obligation of Preventive Health Care

Maimonides explores the halachic duty of healthy living in considerable detail. While as a physician Rambam had a special obligation to heal the sick and to treat illness, his emphasis as a codifier of Jewish law was on prevention: צריך שׁירחיק אדם עצמוֹ מדברים המאבדין את הגוּף וּלהנהיג עצמוֹ בדברים המברין והמחלימים -- “One must avoid those things which have a deleterious effect on the body, and accustom oneself to things which heal and fortify it.”⁹⁷

Rabbi Elliot N. Dorff speculates as to the varied motivations behind preventive health care: “The fact that in practice we can prevent disease more easily than we can cure it... is not the whole story; we must prefer prevention to cure also in order to ward off the debilitating and degrading aspects of disease.”⁹⁸

Among the many specific applications of this principle, Maimonides includes required measures intended to minimize exposure to infectious disease. His rulings are repeated and codified by the Shulchan Aruch: צריך ליזהר מליתן מעוֹת בפיו שׁמא ישׁ עליהן רוֹק יבשׁ שׁל מוּכי שׁחין ולא יתן פס ידוֹ תחת שׁחיו שׁמא נגע ידוֹ במצוֹרע -- “One must be careful not to put coins in one’s mouth lest they carry the dried saliva of one suffering from a skin disease; and one should not put his hand under his arm, lest his hand had come in contact with a leper...”⁹⁹

To this, Rabbi Moses Isserles (Rema) glosses: וכן יזהר מכל דברים המביאים לידי סכנה כי סכנתא חמירא מאיסוּרא וישׁ לחוּשׁ יוֹתר לספק סכנה מלספק איסוּר -- “One must exercise caution with anything that is dangerous, because we treat a danger more stringently than a matter forbidden as a matter of ritual law. One should be more concerned about a possible danger than with a doubtful case of ritual law.”¹⁰⁰ The Rema discusses an additional, specific case of danger to health with direct application to the question of immunization:

ישׁ לברוֹח מן העיר כשׁהדבר בעיר וישׁ לצאת בתחילת הדבר ולא בסוֹפוֹ וכל אלוּ הדברים הם משׁוּם סכנה ושׁוֹמר נפשׁוֹ ירחק מהם ואסוּר לסמוֹך אנס אוֹ לסכן נפשׁוֹ בכל היוֹצא בזה.

“One must flee a city in which there is a plague, and one must leave at the onset of the plague and not toward its end. All these cases are because of danger, and one who dutifully cares for his life will distance himself from them. It is forbidden to rely on a miracle, thereby endangering oneself in such cases.”¹⁰¹

Isserles took his own counsel when, in the days leading up to Purim of 1557, he fled a cholera epidemic in Cracow. Distressed that he was consequently unable properly to fulfill the mitzvah of mishloach manot, he composed his commentary on Esther, Mechir Yayin, during his temporary exile, sending it, instead of portions of food, to his revered father,¹⁰² Yisrael (Isserl) ben Yosef.

Karo elsewhere contemplates further, proactive measures to be undertaken in response to the spread of various infectious diseases.

וכן מתענים על החוֹלאים. כיצד, הרי שׁירד חוֹלי אחת לאנשׁים הרבה באוֹתה העיר כגוֹן אסכרה אוֹ חרחוּר וכיוֹצא בהם והיוּ מתים מאוֹתוֹ חוֹלי הרי זה צרת צבוּר וגוֹזרין עליה תענית וּמתריעין וכן חכוּך לח הרי הוּא כשׁחין פוֹרח ואם פשׁט ברוֹב הצבוּר מתענין וּמתריעין עליו אבל חכוּך יבשׁ צוֹעקים עליו בלבד.

“We fast in response to epidemics. How so? If a given disease¹⁰³ has spread to many people in the same city¹⁰⁴ (for example: diphtheria,¹⁰⁵ violent fever,¹⁰⁶ and so forth), if there have been fatalities, this constitutes a communal crisis. A fast is decreed and the shofar is sounded.¹⁰⁷ So, too, for smallpox¹⁰⁸ -- which is an outbreak of pustules -- if it spreads to most of the community, we fast¹⁰⁹ and sound the shofar. But for measles,¹¹⁰ we merely beseech God in prayer.”¹¹¹

The Rema emphasizes the required response to such diseases is not to be delayed until the health crisis intensifies: וּבאלוּ חוֹלאים אינן צריכים שׁימוּתוּ בשׁלשׁה ימים זה אחר זה... אלא מתענים וּמתריעים על אלוּ החוֹלאים מיד -- “With these diseases, we do not require that fatalities occur on three consecutive days (as a condition for communal action)... Rather, we fast and issue warnings immediately.”¹¹²

Be’er Hetev¹¹³ explicitly extends these principles to childhood disease: אבעבוּעוֹת פוֹרחוֹת בתינוֹקוֹת . Similarly, Magen Avraham,¹¹⁴ citing Shnei Luchot ha-Brit (the “Shelah”),¹¹⁵ earlier ruled: דכל אחד יבריח בניו מן העיר בעת הזאת ואם לא עשוּ זאת הן חייבין בנפשׁוֹתם -- “Everyone must evacuate their children from the city at such a time (of epidemic), and if they do not do so, they are culpable for their deaths.”¹¹⁶

The late British Chief Rabbi and pioneering medical ethicist, Lord Immanuel Jakobovitz, explains the phrase חייבין בנפשׁוֹתם as “the criminal negligence of parents who failed to evacuate their children from a district smitten by an outbreak of smallpox.”¹¹⁷ It should be noted that Rabbi Jakobovitz traces his own interest in medical ethics to the efforts of his grandfather to introduce the study of science to prestigious European Yeshivot. His curricular campaign was precipitated by the death of his first-born daughter in an influenza epidemic.¹¹⁸ Given Rabbi Jakobovitz’s prominence in the field, the consequences of (now vaccine-preventable) infectious disease can thus fairly be said to have launched Jewish medical ethics in the twentieth century.

In Rambam’s time -- well before the availability of vaccines -- evacuation was the most effective means of shielding children and others from infectious disease. Nevertheless, Rambam elsewhere praises government officials who go to considerable lengths to make medicine available to the public in anticipation of a mortal peril. Rambam composed his popular medical treatise “On Poisons” at the behest of his royal protector, Grand Vizier and Supreme Judge Al Fadhil. Rambam pays tribute to his patron for importing pharmaceutical ingredients otherwise unavailable in Egypt, but needed for two antidotes against poisons: the “great theriac” and the “electuary of Mithridates.”¹¹⁹ It is thus reasonable to infer that Rambam would have required prevention of infectious disease by the less disruptive and more effective means of vaccinating -- rather than evacuating -- children, if such a pharmaceutical recourse had then been available.

V. The Obligation to Safeguard the Health of Others

סוֹפוֹ הוֹכיח על תחילתוֹ -- “The conclusion is indicative of the quality and intent of earlier stages.”¹²⁰ In the spirit of this adage, it is quite telling that the concluding two chapters of the Shulchan Aruch are devoted entirely to the religious obligation to extend life-saving efforts to those in mortal peril,¹²¹ and to take preventive measures to remove foreseeable dangers to oneself and to others.¹²² The fact that so definitive and so influential a code of Jewish law culminates with this topic speaks volumes as to the centrality of these values to the religious vision of our tradition.

Each of us has a pressing and far-reaching duty to intervene with life-saving action when a specific individual is met with imminent danger, whether or not the would-be victim is yet aware of the threat.

הרוֹאה את חבירוֹ טוֹבע בים אוֹ ליסטים באין עליו אוֹ חיה רעה באה עליו ויכוֹל להצילוֹ הוּא בעצמוֹ אוֹ שׁישכוֹר אחרים להציל ולא הציל; אוֹ שׁשׁמע עכוּ“ם אוֹ מוֹסרים מחשׁבים עליו רעה אוֹ טוֹמנים לוֹ פח ולא גילה אוֹזן חבירוֹ והוֹדיעוֹ; אוֹ שׁידע בעכוּ“ם אוֹ באנס שׁהוּא בא על חבירוֹ ויכוֹל לפייסוֹ בגלל חבירוֹ וּלהסיר מה שׁבלבוֹ ולא פייסוֹ; וּכיוֹצא בדברים אלוּ; עוֹבר על לא תעמוֹד על דם רעך.

“One who sees someone drowning in the sea, or being pursued by brigands, or being pursued by a wild animal, and he is able to save him, whether by himself or by hiring others to save him, yet he does not act to save him; or if he heard heathens or conspirators plotting against someone or setting a trap for him, yet he does not inform the would-be victim; or if he knew that a heathen or an assailant was coming after someone and that he could appease him on behalf of the intended victim and dissuade him from his violent intent, yet he did not act to appease him; or other similar circumstances; these violate the commandment ‘You shall not stand idly by the blood of your neighbor.’”¹²³

Rambam states the principle more succinctly: כל היכוֹל להציל ואינוֹ הציל עוֹבר על לא תעמוֹד על דם רעך -- “Anyone who is able to save a life, but fails to do so, violates “You shall not stand idly by the blood of your neighbor.’”¹²⁴ He leaves no room for exemption: כל ישראל מצוּוין להציל -- “All Israel are comanded to take life-saving action.”¹²⁵

The Talmud¹²⁶ reformulates the prohibition¹²⁷ on which this requirement is based (“You shall not stand idly by the blood of your neighbor”¹²⁸) into a positive, prescriptive obligation, by relating the duty to intervene in life-threatening situations to the commandment¹²⁹ regarding restoration of lost property -- והשׁבוֹתוֹ לוֹ . “Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property.”¹³⁰

Rabbi Eliezer Yehuda Waldenberg discusses how far this obligation to restore a fellow human being’s health, under the rubric of lost property, extends:

שׁמהקרא דוהשׁבוֹתוֹ לוֹ ילפינן שׁחיוּב הגשׁת עזרה לחבירוֹ וּלהשׁיב לוֹ את גוּפוֹ הוּא לא רק בגוּפוֹ אוֹ בממוֹנוֹ אלא בכל שׁהיכוֹלת בידוֹ, ולכן מרבה חיוּב הרוֹפא שׁיכוֹל להצילוֹ וּלהשׁיב לוֹ את בריאוּת גוּפוֹ בחכמתוֹ, וא“כ נלמד מזה בפשׁיטוּת שׁהחיוּב הוּא גם אפילוּ כשׁביכוֹלתוֹ להכריח את חבירוֹ שׁאינוֹ מבין אוֹ שׁלא איכפת לוֹ להתרפאוֹת שׁיסכים ויתרצה לכך לקבל הטיפוּל הדרוּשׁ, ואפילוּ לקחתוֹ לטיפוּל בעל כרחוֹ.

“From the verse ‘You shall restore it to the owner’ we learn that providing aid to one’s fellow, and the obligation to restore another’s health, requires us to expend not only personal effort and material resources, but includes any means at our disposal. Thus we infer from this the obligation of the physician who can save him and restore his health by virtue of his skill. Likewise, we learn simply that the obligation is even if one is able to coerce his fellow who does not understand or who doesn’t particularly care about his recovery, so that he will agree and consent to the required treatment, and even to take him for treatment against his will.”¹³¹

The religious obligation to secure the health and to safeguard the physical well-being of others is in force even before danger is imminent or any specific individual is placed at risk. We are duty-bound to anticipate dangers to ourselves and to others, and to take effective and appropriate steps to remedy the perilous condition. This duty is implied in the very first chapter of biblical legislation following the Revelation at Sinai. One is liable to capital punishment for a death caused by his ox if, the animal’s predilection for goring having been legally established, he failed properly to secure the beast.¹³² This law is followed by a statement of liability for a landowner who fails to cover a pit on his property, resulting in injury to a neighbor’s livestock.¹³³ Both these laws assume an obligation to foresee danger and to take preventive measures.

The most explicit biblical expression of this moral duty is the requirement of a parapet: כי תבנה בית חדשׁ ועשית מעקה לגגך ולא תשים דמים בביתך כי-יפל הנפל ממנוּ -- “When you build a new house, you shall make a parapet for your roof, so that you do not bring blood upon your house if anyone should fall from it.”¹³⁴ Both Rambam and Choshen Mishpat note that this verse attaches the force of two separate mitzvot to the mandated safety precaution: כל המניח גגוֹ בלא מעקה ביטל מצוות עשה ועבר על לא תעשה שׁנאמר: ולא תשים דמים על ביתך -- “One who leaves his roof with no parapet has neglected a positive commandment and violated a negative commandment, to wit: ‘Do not bring blood upon your house.’”¹³⁵

The Torah’s explicit prescription of a parapet -- a protective barrier designed to prevent death or injury from one particular hazard -- is treated in Jewish law as a paradigm. On the basis of this biblical injunction is constructed a broad category of religious obligation. Hazardous conditions found on one’s property or within one’s control require appropriate, proactive steps to obviate the danger.

אחד הגג ואחד כל דבר שׁישׁ בוֹ סכנה וראוּי שׁיכשׁל בה אדם וימוּת... וכן כל מכשׁוֹל שׁישׁ בוֹ סכנת נפשׁוֹת מצוות עשה להסירוֹ וּלהשׁמר ממנוּ וּלהזהר בדבר יפה, שׁנאמר: השׁמר לך וּשׁמוֹר נפשׁך. ואם לא הסיר והניח המכשׁוֹלוֹת המביאים לידי סכנה ביטל מצוות עשה ועוֹבר בלא תשים דמים.

“It is one and the same for a roof and for anything which presents a hazard which a person is apt to encounter with lethal consequence... Thus for any hazard of mortal peril, it is a positive commandment to remove it, to keep away from it, and to be especially careful¹³⁶ in regard to the matter. As it is said: ‘Take utmost care and watch yourselves.’¹³⁷ If one fails to remove the condition, leaving the hazards and the dangers they present in place, one has neglected a positive commandment and has violated ‘Do not bring blood (upon your house).’”¹³⁸

Lack of immunity to infectious disease (and, as a consequence, willfully remaining a potential source of contagion) is a hazard מכשׁוֹל שׁישׁ בוֹ סכנת נפשׁוֹת -- . This hazard presents a readily documented, potentially lethal, and clearly foreseeable danger -- to the party failing to be immunized, to others who lack immunity, to vaccinated individuals whose immunity is ineffective or otherwise impaired, and to the community at large through diminution of “herd immunity.” This particular hazard is infinitely more difficult for others to avoid by virtue of vigilant personal caution than the roof-tops and pits explicitly mentioned in Scripture... and far more likely to claim multiple, innocent victims. Vaccination against infectious disease is the pharmaceutical equivalent of מעקה -- the biblically mandated parapet, designed effectively to shield potential victims from sudden fall, injury, and death. Immunization against infectious disease is thus logically rendered obligatory: “For any hazard of mortal peril, it is a positive commandment to remove it, to keep away from it, and to be especially careful in regard to the matter... If one fails to remove the condition, leaving the hazards and the dangers they present in place, one has neglected a positive commandment and has violated ‘Do not bring blood (upon your house).’”

Construction of a parapet on a dangerous roof is an undertaking that necessarily involves a measure of risk. The parapet is thus a particularly apt paradigm for immunization, a protective measure deemed obligatory despite a statistical risk incurred in the process.¹³⁹

Rabbi Israel Mayer Ha-Kohen Kagan, the “Chofetz Chaim,” included a discussion of the “positive commandment to make a parapet” in his last book: Sefer Ha-Mitzvot Ha-Katzar, published in 1931. Quoting Sefer Chareidim,¹⁴⁰ the Chofetz Chaim counsels in regard to construction of a parapet: וּבשוּמוֹ על לב בכל יוֹם מצוה זוֹ ויראה אם צריך תקוּן, נחשׁב כאלוּ מקים המצוה בכל יוֹם -- “When one bears this religious duty in mind every day, and sees if it requires any repair or improvement, it will be reckoned for him as though he fulfills the duty every day.”¹⁴¹ Similarly, parents who have safeguarded the health and well-being of their children and others through proper immunization, who “bear this religious duty in mind,” and are vigilant concerning the epidemiological health of their children, “it will be reckoned for them as though they fulfill this mitzvah each and every day.” The spiritual merit of educators and policy-makers who safeguard the health of the 20,000 students enrolled in Jewish Day Schools affiliated with the Conservative Movement is commensurately compounded.

VI. Declining Treatment and Coercion in Health Care

The right of an individual to reject or decline any given medical treatment is customarily traced to an incident involving Rabbi Yehudah Ha-Nasi.¹⁴² Afflicted by an eye ailment, the redactor of the Mishnah was treated by his personal physician, Shmuel the Astronomer. Rabbi rejects two proposed courses of treatment, declaring in reference to each: לא יכילנא -- “I cannot bear it.” In a fascinating parallel to modern immunization protocols, the first treatment prescribed has been identified by our colleague, Rabbi Avram Reisner, as “an injection into the eye.”¹⁴³ The discretionary power entrusted to the patient, and exercised by Rabbi Yehudah Ha-Nasi, is traditionally expressed by the biblical verse, לב יוֹדע מרת נפשׁוֹ -- “The heart knows its own bitterness.”¹⁴⁴

Rabbi Reisner emphasizes in the same study that the self-determination patients do enjoy in directing their own medical care is not without limits in Jewish Law. “Unlike the absolute autonomy recommended by secular ethicists, this autonomy inheres in the patient choosing life-giving treatment.”¹⁴⁵ Indeed, Shmuel the Astronomer finally succeeded in identifying an effective treatment acceptible to his patient. The sage he cured was so grateful that he sought to confer rabbinic ordination on his care-giver.

Unlike Rabbi’s eye condition however, there is no effective or responsible medical alternative to immunization against infectious disease. Furthermore, Rabbi’s autonomous choice of a medical protocol carried no implication for the health of others, as is clearly the case with immunization.

A modern rabbinic ruling weighing the interests of patient self-determination against the religious obligation to be healed also focuses on ophthalmic care. In 1981, Rabbi Eliezer Waldenberg¹⁴⁶ responded to a query from the Director of the Department of Opthalmology at Jerusalem’s Bikkur Cholim Hospital. Citing the high incidence of deteriorating vision (and, occasionally, eventual blindness) among Yeshivah students, the doctor asked if students had a halachic obligation to submit to preventive eye care. Rabbi Waldenberg affirmed the traditional view that loss of eye-sight is a life-threatening condition, paraphrasing the Book of Esther in reference to the urgency of the doctor’s inquiry: נפשׁוֹ בשׁאלתוֹ -- “In his question, life is at stake.”¹⁴⁷ Rabbi Waldenberg ruled:

לנדוֹן דידן בקשׁר לילדים בבתי הת“ת שׁההוֹרים וגם לרבוֹת המלמדים והמנהלים דהיוֹת היכוֹלת בידם להכריח את ילדיהם לקבל הטפוּל הדרוּשׁ בעיניהם שׁמחוּיבים בכך מכח העשה שׁל והשׁבוֹתוֹ לוֹ.

“In our case regarding children in religious schools, the parents, as well as the teachers and administrators, who have the immediate authority to compel their children to receive the necessary eye treatment, are obligated to do so, by dint of the positive commandment ‘You shall restore it (i.e. personal property and, by extension, a person’s health) to him.’”

Rabbi Waldenberg emphasizes how broadly this obligation extends: פשׁוּט הדבר להפוֹסקים ז“ל שׁישׁנוֹ חיוּב כזה על כל הסוֹבבים את החוֹלה -- “The principle is widely accepted by the halachic authorities, of blessed memory, that a similar obligation devolves on all who are around a sick person.” This obligation Rabbi Waldenberg links to the “great principle of the Torah” -- “You shall love your neighbor as yourself.”¹⁴⁸ Failure to provide our children and our students with preventive (in this case, ophthalmic) care, Waldenberg deems a violation of an explicit prohibition of the Torah: לא תוּכל להתעלם -- “You shall not remain indifferent.”¹⁴⁹The force of Rabbi Waldenberg’s responsum is clear, and analogous to the case of state-mandated immunization of school children. “Rav Waldenberg affirms that medical treatment, even a preventive measure, can be performed against the will of the patient.”¹⁵⁰

Seventy-five years before Rabbi Waldenberg’s ruling, German Jewry’s pre-eminent halachic authority, Rabbi David Tzvi Hoffman, ruled concerning the limits to parental discretion in authorizing a dangerous but life-saving surgical procedure deemed necessary for their child. Citing Rabbi Jacob Reischer (Responsa Shevut Yaakov 3:75), he first explains that the authority of the physician is also limited. אין לעשוֹת כן הרוֹפא כפשׁוּטוֹ אלא ישׁ להתיעץ עם רוֹפאין מוּמחין שׁבעיר ויעשוּ עפ“י רוֹב דיעוֹת דהיינוּ רוּבא דמינכר שׁהוּא כפל (חד בתרי) -- “The doctor should not act on his own accord, but should consult the other expert doctors of the town, and they should act in accordance with the majority view. By a majority in this connection is meant a clear majority, i.e. a two-thirds majority.”¹⁵¹For Rabbi Hoffman, a two-thirds consensus in the medical community renders the life-saving procedure permissible and therefore obligatory.

דעת אביו ואמוֹ לא מעלה ולא מוֹריד... ולא מצינוּ בכל התוֹרה כוּלה שׁישׁ לאב ואם רשׁוּת לסכן נפשׁ ילדיהם ולמנוֹע הרוֹפא מלרפאוֹתם.

“The opinion of the father and mother has no effect one way or the other... We do not find anwhere at all in the Torah that parents have a right to endanger the lives of their children by preventing the doctor from treating them.”

The two-thirds consensus posited by Rabbi Hoffman in weighing risks and benefits is reframed in more general terms by a contemporary authority: “Society is the expert to decide whether a risk is acceptable or not.”¹⁵²

The obligatory nature of recourse to conventional medical treatment is widely acknowledged as a general principle:

“Recognized rabbinic decisors who have addressed the issue have concluded that, at least in theory, a patient whose life is endangered can be compelled to accept medically mandated treatment... If the efficacy of the medication or procedure is either substantiated by empirical data or predictable on the basis of cogent scientific reasoning, the therapy is probably mandated by Halacha.”¹⁵³

The Turei Zahav¹⁵⁴ observes wryly, הנ“ל די לאדם שׁיציל עצמוֹ אלא עוֹד נוֹתנין לוֹ שכר על זה -- “One would think it sufficient that a person saves himself (through compliance with the religious duty of self-preservation), but he is additionally rewarded for his observance of these laws.”¹⁵⁵ Nevertheless, the codes provide for a number of coercive measures aimed at those who endanger their own health and/or fail to remove hazards within their domain placing others in mortal peril. Thus, in reference to a series of precautionary measures prescribed for maintenance of one’s personal health and well-being, we find this stipulation:

כל העוֹבר על דברים אלוּ וכיוֹצא בהם ואמר הריני מסכן בעצמי וּמה לאחרים עלי בכך אוֹ איני מקפיד בכך מכין אוֹתוֹ מכת מרדוּת.

“One who violates these (preventive) measures or others like them, saying: ‘So I endanger myself; what concern am I to anyone else?’ or ‘I am not particular about this’ -- he is punished with lashes of rebelliousness.”¹⁵⁶

As to this prescribed lashing, Aruch Ha-Shulchan insists, אין כוונתוֹ דזהוּ רק איסוּר דרבנן דודאי ישׁ בזה איסוּר דאוֹרייתא -- “The intention here is not that this is merely a rabbinic prohibition ( מכוֹת מרדוּת usually indicate violation of a rabbinic norm), for this matter (endangering one’s health) is assuredly a prohibition from the Torah.”¹⁵⁷

Be’er Ha-Golah¹⁵⁸ comments regarding such recalcitrants: והמסכן את עצמוֹ כאלוּ מוֹאס ברצוֹן בוֹראוֹ ואינוֹ רוֹצה לא בעבוֹדתוֹ ולא במתן שכרוֹ ואין לך זלזוּל אפקירוּתא מזה -- “One who endangers himself, it is as if he despises the will of his Creator and wants neither to serve Him nor to receive any reward from Him. There is no greater or more brazen heresy than this!”¹⁵⁹

Coercive measures are also available to compel individuals to remove hazards to the public safety. Maimonides li