By Rabbi Yair Hoffman for 5tjt.com

Who could have ever imagined that the challenges of handling a very cruel modern day executive order by the governor of New York State – were addressed over 120 years ago – by the greatest of modern Talmudists  – Rabbi Chaim Soloveitchik of the town of Brisk?

THE CHALLENGE

But we jump ahead of ourselves.  We will start with the challenge:

You are a Nursing Home Administrator in New York State.  You make $128,000 per year (and almost another $6000 per year in overtime). You worked hard to get there, getting your bachelors decree, taking course work specific to your field, and doing 12 months of internship.  You studied hard for the licensing examination and passed.  You are deemed to be both of moral character and suitable for the position.

You are finally making a living and can put food on the table.  Your wife and children were getting worried there.  For years and years there was no money.  It even approached the level of Pikuach Nefesh for you.  You couldn’t pay for food and heat in the tiny, dinky apartment in which the five of you lived.

Yes, finally, you are generally and genuinely happy. 

You also have job satisfaction.  People trust you with their parents.  Their grandparents.  Their uncles and aunts.  They trust you to keep them safe.   You also have a wonderful team of employees that look at you as their leader.  You are warm, kind, and you look out for them.  They trust you as well.

But it is March 25^th, 2020.  You are now faced with the greatest moral challenge of your life.  The moral challenge will last for 46 days.

THE LETTER

It is an executive order from the top leadership in the state – and it is addressed primarily to you.   It states:

“COVID-19 has been detected in multiple communities throughout New York State. There is an urgent need to expand hospital capacity in New York State to be able to meet the demand for patients with COVID-19 requiring acute care. As a result, this directive is being issued to clarify expectations for nursing homes (NHs) receiving residents returning from hospitalization and for NHs accepting new admissions.

Hospital discharge planning staff and NHs should carefully review this guidance with all staff directly involved in resident admission, transfer, and discharges.

During this global health emergency, all NHs must comply with the expedited receipt of residents returning from hospitals to NHs. Residents are deemed appropriate for return to a NH upon a determination by the hospital physician or designee that the resident is medically stable for return.  Hospital discharge planners must confirm to the NH, by telephone, that the resident is medically stable for discharge. Comprehensive discharge instructions must be provided by the hospital prior to the transport of a resident to the NH.  No resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.

Information for healthcare providers on COVID-19 is readily available on the New York State

Department of Health public website at https://coronavirus.health.ny.gov/information-healthcareproviders. As always, standard precautions must be maintained, and environmental cleaning made a priority, during this public health emergency.”

Oh, and one more thing: The letter tells you to get some masks and Critical personal protective equipment (PPE) from the local Office of Emergency Management.

YOUR THOUGHTS

You think:  Have they gone mad?  Yes, the COVID patient must be medically stable – but what about the rest of my residents?  What about my staff?  COVID-19 is a highly contagious pathogen with a high mortality rate.  My residents will die.  My staff will die.

YOUR QUESTIONS

Should I comply with this directive?  If not, I will be facing a class A misdemeanor.  I could go to jail for a year, aside from the fines, and I will lose my licensing and livelihood.  But, if I do – I will be killing people.   I will be killing the residents of this nursing home and some of my loyal staff members.  What should I do?

[Of course, the thoughts and questions are correct.  It is estimated that between 6000 and 15,000 people died because of this executive order.  The state has still not provided with the full impact of the order and has deleted all references to it on the state websites.  It does not even have an executive order number..]

RAV CHAIM SOLOVEITCHIK’S WRITINGS

It is found in Chidushei Rabbeinu Chaim (on Rambam Yesodei HaTorah 5:1 – the first piece).  Rav Cahim Soloveitchik’s writings were published in 1936 – some 18 years after his passing.   The issue he discusses deals with the following question:

What does one do – when you are told to violate one of the three cardinal sins of Judaism – idolatry, adultery [and other arayos], or to take the life of another – or your life will be forfeit?

LIVE BY THE TORAH – NOT DIE BY IT

Generally speaking, the Torah tells us “veChai Bahem – and you shall live by the Torah.”  Our sages teach (See Yuma 85b and Sanhedrin 74a) – to live by and not die by them – all except for the three cardinal sins.  When faced with these three sins – we must never violate them, even if our life is at stake.

THE THREE EXCEPTIONS

The Gemorah in Sanhedrin tells us that we must let ourselves be killed rather than violate these three sins.

• Idolatry’s exception is derived from the Shma: And you shall love Hashem your G-d with all your soul – bechol nafshecha.
• Arayos is derived from a Hekesh to the taking of life – (the hyper-text like connection which applies the laws of one topic to another – Dvarim 22:26). Just as one is allowed to kill a would-be murderer chasing someone – so too may one kill a would-be rapist chasing someone.  Since this halacha is true, the exception to “and you shall live by them” is also true.
• And where is the exception of “taking of life” derived from? – It is a compelling logical rationale, concludes the Gemorah in Sanhedrin:  Who can say that your blood is any redder than his [the victim’s]?  The Gemorah quotes Rava who gave this answer to someone who asked him about how his local temporal administrator, Marei Durai, told him to kill others or he will kill him.

ESTHER’S RELATIONSHIP WITH ACHASHVEIROSH

The Gemorah in Sanhedrin mentions another caveat – that when the matter is in public – one must also give up one’s life for one of the non-cardinal sins on account of the idea of Chillul Hashem.  The Gemorah brings up its original prima facie understanding of the case of Esther as a question on this caveat – declaring that it too should be considered a public matter.  One answer that the Gemorah gives is that of “Karka Olam” – that Esther was only violating this sin passively.

TOSFOS’ QUESTION

The Baalei Tosfos in Sanhedrin (74b “Veha”) ask that Esther’s sin should have been considered full-fledged Gilui Arayos – (exception #2 to vechai bahem) and she should have given up her life – even if it wasn’t public!  The Baalei Tosfos answer that for the issue of Exception #2 (and thus exception #3 as well) – the Gemorah was well aware that the notion of “Karka Olam – the passive violation” – applies to both of these exceptions and therefore only chose to ask from the private/public factor.

RAV CHAIM’S VIEW OF TOSFOS

Rav Chaim Soloveitchik states that according to the view of Tosfos – one does not have to give up one’s life in a case where the killing of others is a passive violation.  In other words, if the official is about to use you as the murder weapon – throwing you on top of the victim and killing him – you are not obligated to give up your life to prevent it.  Indeed, in such a case, one can make the opposite argument – why is the victim’s blood any redder than mine if I am not actively violating anything?

In applying Rav Chaim’s understanding of Tosfos to our case, an argument could well be made that the Nursing Home Administrator is not directly and actively killing his residents and his staff by following the March 25^th Executive Order.  It could be said, therefore, that passively killing them may not fit into the exceptions to vechai bahem.  On the other hand, the Nursing Administrator could leave his job – and thus, perhaps, altogether avoid the question.

RAV CHAIM’S VIEW OF THE RAMBAM

Rav Chaim, however, points out that the Rambam learns differently and nowhere does he draw any distinction between an active violation and a passive violation.  He makes no mention of karka olam – neither in Arayos nor in the taking of another life.

THE TWO VIEWS OF “WHY IS YOUR BLOOD ANY REDDER?”

Rav Chaim presents two possible understandings of the concept of “why is your blood any redder than his” within the Rambam.  The first view is that one must always remain passive.  The second view is that there is always an obligation to give up one’s life rather than cause the death of another – even if the causing is only indirect.

PROVING THE SECOND VIEW

Rav Chaim cites a Gemorah from Bava Metziah 62a to prove only that when saving a life we apply the dictum of VeChai Achicha Imach – that your life takes precedence.   There, the case is where two people are in the desert and one has a container of water but it is not enough for both to survive.  The pasuk of veChai achicha imach is applied to say only when you will also live are you obligated to give him the water.  It is not a case of murder, however.  We see, therefore, that the idea of your life taking precedence – does not apply, however, when dealing with the prohibition of actually taking of life of another person – even if it were passive.

CONCLUSION

According to Tosfos – if one’s life were truly at stake, there could have been an argument made that the Nursing Home Administrator would only be in passive violation and it would be permitted.  According to the Rambam, there would not have been a rationale to permit him following the governor’s executive order – unless it could have been done in a way where there would absolutely be no deaths whatsoever – a veritable impossibility.  The bottom line?  The directive was wrong and caused numerous needless deaths.

Some have suggested that the governor uncharacteristically laying blame on the religious Jewish community for the uptick in COVID-19 is to hide or divert attention from his role in the deaths of so many people.  Assigning such base motives to the governor is wrong, however, lashon sagi nahor.  The governor is an honorable man and is truly a Shakespearian hero just trying to save lives.  We should all realize this.

The author can be reached at [email protected]