Now that the majority party in the U.S. Congress has introduced its replacement for the Affordable Care Act – a “replacement” in the sense that it replaces federal insurance subsidies with a new form of individual tax credits – perhaps we should revisit the issue we addressed in our last post. There, we argued that, in the view of the halakhah, “the provision of affordable care to the entire community is very much the responsibility of the community itself, acting through its government.” The newly-proposed plan appears to take a major step away from that goal and for that reason must be judged deficient from a halakhic perspective.
Some, it’s true, will object to that last statement. They will say that Jewish law has no “perspective” whatsoever on a complicated piece of social legislation in 21st-century America. They believe that halakhah does not and should not “take sides” in modern-day partisan political disputes. To this, we can offer two responses, one general and the other specific to this issue.
The general response is that, if the halakhic tradition cannot speak to contemporary questions of a “political” nature, we must conclude that it has nothing of substance to teach us about how to construct a good and just society. To be sure, just what the halakhah teaches is always, as they say, a matter of interpretation or, better, a matter of argument. Indeed, the halakhic sources do not interpret themselves; that’s our job as students of this literature. And it is only through argument that we make those sources yield answers to questions that they do not explicitly address – which is precisely what halakhists have done throughout history. But to say that halakhah has nothing to teach us concerning contemporary “political” questions is to forestall the very possibility of interpretation and argument. It is to say that Torah itself is neutral or indifferent as to how we answer those questions. We progressive halakhists don’t believe that; for that matter, the great halakhic scholars of the past never believed it either. Which is why we continue to argue about “politics,” to look to our Jewish legal tradition for guidance as to how we ought to construct our social world.
The specific response is that, as noted above, the halakhah does take a clear pro-government stand when it comes to the provision of medical care. Let’s develop this point by turning to a responsum, a rabbinical ruling dating from 1983, when physicians belonging to the Israeli Medical Association (ההסתדרות הרפואית בישראל) went on strike[1] against the Israel National Health Service. The question of salary was a central point of the dispute. Those who remember the rampant inflation of the time can well imagine how the physicians’ employment contract, which had set the level of their compensation some months before, was quickly rendered totally inadequate to maintain their standard of living. The strike lasted 117 days, during which time the physicians, who walked off the job in clinics and hospitals, set up special private clinics that dispensed medical care for a fee set by the doctors themselves. During the strike, a question (sh’elah) was posed to Rabbi Shlomo Goren, formerly the Chief Ashkenazic Rabbi of Israel, concerning nthe propriety of a physicians’ strike under Jewish law. His ruling – here, in Hebrew – was that while physicians are forbidden to withhold their services from the public – one may hardly go on strike against the duty of pikuach nefesh, to save human life – “it is obligatory to pay them their salary as demanded by the Israeli Medical Association.”[2] And if the Ministry of Health is unwilling to meet those demands, “the responsibility” [that is, the blame for the non-delivery of health care to the people] falls upon the government.” Goren learns this latter point – that the government at the end of the day is responsible for making sure that adequate health care is available to all – from two Talmudic passages.[3]
The first of these, Yerushalmi Sotah 7:4, reads as follows:[4]
“Cursed be whoever will not uphold the words of this Torah” (Deut. 27:26). How is it possible that the Torah can fall so that it must be “upheld”?… R. Shimeon b. Halafta says: this refers to the government” [P’nei Moshe ad loc.: the king, the nasi, and the judges who have the power to enforce the laws of Torah upon those who would violate them].
The second is B. Shabbat 54b-55a:[5]
Rav Papa said: The members of the Exilarch’s household are held responsible for the sins of the whole world… [Rashi: because they have the power to stop sinners from transgressing but do not.]
Rav Y’hudah was sitting in the presence of Shmuel when a certain woman came [into his court] and issued a complaint. Shmuel ignored her. Rav Y’hudah said: Does the Master not agree that “one who stops up his ear at the cry of the poor shall one day call out, but he shall not be heard” (Proverbs 21:13)? Shmuel replied:… Mar Ukba, the head of the court, is sitting here. [Rashi: the penalty falls upon the one who has the power to act – i.e., Mar Ukba – but does not act.]
“From this,” says Goren, “we learn that the highest governmental body bears the responsibility for insuring the proper functioning of every area of public life and that the government may not evade that responsibility and cast it upon some other institution.” It would be an exaggeration to claim that Goren, in this passage, prevents us with a full-blown political or constitutional theory. But the concept that the government takes the ultimate responsibility for what happens in a civilized society offers ample support for his conclusion: the responsibility for making sure that adequate health care is available to all does not rest with the striking physicians – who could hardly be blamed for the high rate of inflation and whose financial demands were justified – but with the government, which possesses the power to do so.
And that leads us to our conclusion, namely that the creation of a health care system that insures adequate care for all is emphatically the responsibility of the government and not of the free market, employers, unions, the non-profit [charity] sector, or any other constituent element of political society. Only the government has the power to create that system and to guarantee its performance; therefore, it may not devolve its obligation upon anyone else. True, our halakhic sources do not specify the system’s particulars (single payer? individual mandate? etc.) That is a decision (or set of decisions) determined by economics, politics, and culture and not, strictly speaking, by law. But that such a system needs to be set in place – and set in place by government action – is very much a matter of law, or at least of halakhah. While the government may utilize those other social institutions as the means for delivering health care, the government itself is accountable for that delivery. As we put it in our last post: “None of this, of course, proves that Jewish law and tradition favor (let alone ‘require’) any particular national healthcare system. But” – and here, forgive us, we repeat ourselves – “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.”
Perhaps we should put it a bit differently: in seeking to reduce the government’s role in the health care system, the members of Congress are trying, rather transparently, to pass the buck. They ought to realize, instead, that the buck stops with them.
____________________________________________________________________
[1] For background – albeit from the doctors’ perspective – see here.
[2] See section 12: “המסקנה : אסור לרופאים השובתים למנוע הגשת עזרה “לחולים, אבל חובה לשלם להם שכרם בהתאם לדרישת ההסתדרות הרפואית
[3] See section 2: “האחריות לבריאות הציבור מוטלת על הממשלה ולא על הרופאים”
[4]כתיב [דברים כז כו] ארור אשר לא יקים את דברי התורה הזאת. וכי יש תורה נופלת. .. רבי שמעון בן חלפתא אומר זה הבית שלמטן
[5]אמר רב פפא: והני דבי ריש גלותא נתפסו על כולי עלמא
רב יהודה הוה יתיב קמיה דשמואל, אתאי ההיא איתתא קא צווחה קמיה, ולא הוה משגח בה. אמר ליה: לא סבר ליה מר אטם אזנו מזעקת דל גם הוא יקרא ולא יענה? אמר ליה:… הא יתיב מר עוקבא אב בית דין.