The United States Congress is struggling – again – over the future of the Affordable Care Act (ACA, or “Obamacare”) of 2010. As Jewish organizations weigh in on the debate, the question will inevitably arise: what does Jewish tradition, and specifically the halakhic tradition, teach us concerning the role of the government in the provision of medical care in a modern democratic society? And that, of course, is a difficult question to answer. We know that the halakhah, based in sources that reflect a social, economic, and political context quite different from our own, does not speak with precision to most of the particular issues our society confronts today.[1] To put this differently: on its face, the halakhah doesn’t tell us whether the ACA should be retained, repealed, or amended. On the other hand, Jewish law does contain some important basic teachings about the nature of the good society that can and ought to guide our thinking on public questions. Yes, we have to resist the temptation of learning too much detail from broad, general statements in the texts. We’ve discussed that problem on this blog. But there are occasions when the tradition actually gives us enough practical detail, if not to answer our questions precisely, then at least to point the way for our thinking. And the issue of national healthcare policy is one of those occasions.
Our discussion begins with the p’sak (ruling) of R. Moshe Isserles in his gloss to Shulḥan Arukh Yore De`ah 261:1: if a mohel refuses to circumcise the son of a poor person who cannot afford to pay the mohel‘s fee, the obligation to circumcise falls upon the communal authorities (beit din). The court accordingly may use whatever moral and other pressure it deems appropriate to persuade or, ultimately, compel the mohel to perform the circumcision.[2] Isserles bases this p’sak on a t’shuvah (responsum) of Rashba (R. Shlomo b. Adret, Spain, 13th-14th c. Catalonia) dealing with such a case. Incensed at the greed of the mohel who makes such an unreasonable demand, Rashba rules for coercion on the grounds that, as the one who actually knows how to circumcise, the mohel is specially obliged to perform this mitzvah even for free.[3] From this you can detect the possible analogy: if the beit din may compel a mohel to perform the mitzvah that lies within his particular expertise, might not the same be true of the physician, who also performs a mitzvah, namely the obligation to heal?[4] R. Eliezer Fleckeles (18th-19th c. Prague) is apparently the first halakhist to draw that analogy. In his view, a physician may be compelled to treat an indigent patient for free inasmuch as “there is nobody else” who can perform this mitzvah.[5]
What we have seen thus far suggests the following theory: the halakhah empowers the community to make sure that the poor are not denied access to circumcision or adequate medical care. But R. Eliezer Yehuda Waldenberg (d. 2006), the eminent Orthodox authority on medical halakhah, points out a difficulty in this line of thinking.[6] None of the authorities we’ve seen mentions the possibility that the community might draw upon its public treasury – say, a tzedakah fund – in order to pay the fee demanded by the mohel or physician. Why not? Wouldn’t it be easier simply to pay the fee rather than to coerce an unwilling professional to do his or her job? The answer, says Waldenberg, is that because the professional bears a particular obligation (חיוב, hiyuv) to provide the service for which s/he is specially qualified, the community should not have to dip into its own (always limited) treasury to reward the professional who refuses to perform that mitzvah. But this applies, Waldenberg continues, only to the situation where there is but one physician (or mohel) in the community. When more that one physician resides in the area, it is ethically and halakhicly improper to compel any one of them to perform the mitzvah of healing at his or her own expense.[7] Such, of course, is universally the case in our modern urbanized societies, which raises once again the problem of relevance: how can we apply the insights of the ancient and medieval halakhic sources to today’s world? Can the Rashba-Isserles-Fleckeles theory – i.e., that the physician can be “compelled” to provide medical care for free to the indigent – speak to the much more complex social conditions of modernity?
Waldenberg says it can, and here’s how. Let us posit, he writes, that there is in fact more than one physician available in our community. In such a case, as we have seen, the option of legal coercion no longer exists. At that point, the community is entitled to fall back upon the option that Rashba, Isserles, and Fleckeles do not mention: namely, to draw upon public funds to provide health care to the indigent. There are various ways in which the community can do this. It can use existing tzedakah funds; it can ask for voluntary contributions, or it can require that all of the town’s physician’s take turns in providing free care (essentially a tax on the physicians). “The best solution is for the community to establish a fixed salary to provide for a physician who will treat the poor” – that is, the government guarantees medical care for those unable to pay.
At this point, at the very end of his analysis, Waldenberg offers a paean of praise to the kupot ḥolim, the government-mandated system of healthcare in Israel, whose existence symbolizes the three great moral traits that are said to characterize our people: righteousness, modesty, and loving-kindness.[8] On the surface, this seems strange, a sudden turn in his argument and a break with its logic. Up to this point, Waldenberg has been talking about how to provide medical care to the poor. What is the relevance of the kupot ḥolim, a health insurance system that covers the entire population and not only its most destitute members? It is here that the posek reveals his cards. He is sharing with us his understanding that the provision of healthcare for the poor is but a part of a wider responsibility on the part of the community, acting through its government, to ensure the delivery of adequate healthcare to all its citizens. Put differently, he is suggesting, first, that it is the duty of the community to guarantee medical coverage to the poor, and second, that the best, most efficient, and most politically astute way to accomplish this is to require that all citizens participate in a national health insurance plan. It is then, when the entire population (and not only the poor) have a direct financial stake in the system, that its political and fiscal stability can best be protected.
This is the message that Rabbi Waldenberg derives from the halakhic sources. And we have to say that it jibes quite well with American experience; compare the political fortunes of Medicare and Social Security, programs well nigh impervious to “reform” precisely because the broad population takes part in them, with those of Medicaid, a program directed toward the poor and for that reason vulnerable to incessant budget cutting and crusades against “welfare spending.”
The goal, then, is to see to it that all, not only the poor, have access to affordable healthcare. None of this, of course, proves that Jewish law and tradition favor (let alone “require”) any particular national healthcare system. But it does mean that the provision of affordable care to the entire community is very much the responsibility of the community itself, acting through its government. Exactly how the community should do this is not something that halakhah can specify. No existing healthcare system is sacrosanct. It must constantly be reviewed, reformed, and adjusted to respond to the constantly changing conditions of the complex international marketplace within which it functions, and politicians and planners have to be granted the flexibility to shape realistic responses. But we can say this with confidence: to the extent that those politicians and planners reform the system is such a way that it restricts access to healthcare, takes insurance away from those who currently have it, or weakens the existing provisions to make healthcare more affordable to the members of the community, such “reforms” are difficult to square with the message of the halakhah.
Will the new administration and Congress avoid these pitfalls as they work to “repeal and replace” the ACA?
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[1] Take, for example, the statement by the URJ’s Religious Action Center (RAC, here). The statement cites Rambam’s Mishneh Torah Hilkhot De`ot 4:23 as support for its contention that “For centuries, Jewish law has commanded communities to provide healthcare to their inhabitants.” In fact, the passage doesn’t say that. Drawn from B. Sanhedrin 17b, it simply instructs the talmid ḥakham (Torah scholar) not to live in a community in which a physician does not already reside. Assuming that “physician” is the proper translation for the Talmud’s word רופא (see Rashi ad loc. for another opinion), the passage says nothing about the community’s financial obligation to obtain a physician’s services, which is the subject of the RAC statement in the first place.
[2]האב שאינו יודע למול, ויש כאן מוהל שאינו רוצה למול בחנם, רק בשכר, יש לב”ד לגעור במוהל זה, כי אין זה דרכן של זרע אברהם, ואדרבה מוהלים מהדרין שיתנו להם למול. ואם עומד במרדו, ואין יד האיש משגת לתת לו שכרו, הוי כמי שאין לו אב שב”ד חייבים למולו, ולכן ב”ד היו כופין אותו, מאחר שאין אחר שימול
[3] Resp. Rashba vol. 1, no. 472. He writes at the end of the text:וזה שהוא יודע למול ואין אחר שיודע עליו חל החיוב יותר.
[4] See Shulḥan Arukh Yore De`ah 336:1, a ruling drawn from Naḥmanides‘ Torat Ha’adam: נתנה התורה רשות לרופא לרפאות. ומצוה היא ובכלל פיקוח נפש הוא. On the practice of medicine as a mitzvah, see the discussion in Teshuvot for the Nineties (CCAR Press, 1997), at p. 373. The responsum can be found here behind the CCAR membership wall. If you’re not a member, you can either a) make friends with a Reform rabbi (and why not? We’re actually very nice people!), or b) buy the book (and why not? Such a deal!).
[5] Resp. T’shuvah m’ahavah, vol. 3, p. 70a, in his note to Shulḥan Arukh Yore De`ah 336:2.
[6] Resp. Tzitz Eliezer, vol. 5, Ramat Raḥel ch. 24.
[7] The rule is first enunciated by Naḥmanides in his Torat Ha’adam, inyan hasakanah, s.v. v’yesh mi: כל מצות עשה דרמיא אכולי עלמא אם נזדמנה לזה ולא רצה לקיימה אלא בממון, אין מוציאין ממון מידו. See also Isserles, Shulḥan Arukh Yore De`ah 336:3. As Waldenberg notes, Rashba himself ties his ruling to the situation in which “there is no one else who knows” how to perform the mitzvah in question (see above, note 2: ואין אחר שיודע עליו .)
[8] ומה טובים ונאים המה קופות החולים לצורותיהם השונות רחבי – הממדים, המצוים פה בארצינו הקדושה, המה אוצרים בחובם ומסמלים כאחד שלשת הסימנים הגדולים שאומתנו מצטיינת בהם ומזדהים על ידיהם שהם: רחמנים, ביישנין, וגומלי חסדים. See B. Y’vamot 79a on those three great moral traits.