Pikuach Nefesh & Covid-19 Precautions - Questioning the Halachik Link - Part III (Conclusion)

Part I of this three part series can be found here:
Part II of this three part series can be found here:



The following is the third part of a three part series analyzing the applicability of halachic maxims like safek pikuach nefesh to the current social distancing mandates during the Covid-19 Pandemic. In the first part, the application of safek pikuach nefesh on the individual level, and the lack of historical precedent was discussed, and can be found here.  In the second part, safek pikuach nefesh on the communal level was discussed in light of the observed efficacy of social distancing measures. It can be found here.

 


Pikuach Nefesh & Covid-19 Precautions - Questioning the Halachik Link - Part III (Conclusion)
Etan Golubtchik

Who is Wise?

When discussing safek pikuach nefesh and how it applies to the recommendations of social distancing, it cannot be discussed outside of the context of the unintended consequences of this treatment method. In the Talmud, it states that one is considered wise if he foresees the consequences of his actions.[47] According to the Yerushalmi, this does not refer to the immediate effects of one’s actions which even a simpleton can predict, but rather what will happen at the end, after all of the secondary and tertiary effects come into play.[48] With regards to authority-mandated social distancing measures, one must consider not only the assumed reduction in Covid-19 deaths, but also any increased morbidity due to the long-term effects of such policies.
While approximately 200,000 people in the US have died in association with Covid-19,[49] excess mortality is up by a significantly higher number. Excess mortality is defined as the amount deaths exceeding the amount of deaths typically expected during a given time period based on historical trends. In this case, that number already exceeds 300,000 in the US just through the first 38 weeks of 2020.[50] While driving accident deaths appear to be down, deaths due to drug overdoses, suicides, accelerated dementia, and untreated or undiagnosed alternative diseases have collectively led to over 100,000 additional deaths so far in 2020, in respect to the number of anticipated deaths from these causes.[51] These excess deaths are likely due to the indirect effects of the lockdown. As a matter of perspective, this is roughly double how many Americans perished in the Vietnam War, over its full ten year period of American involvement.[52]
Similar counts of excess mortality can be seen in numerous countries across the world, leading to a much higher number of deaths in 2020 than simply tallying those deaths that associated with the disease itself.[53] This increase in excess mortality above COVID-19 mortality appears to correlate with the length and stringency of lockdown measures with longer and stricter lockdowns leading to higher excess death counts above Covid-19 deaths. This country by country method of calculation though tends to ignore some of the longer and broader effects on global mortality, in which lockdowns in some countries lead to increased mortality in other, poorer countries. The imposed lockdowns have undercut world economies and global supply chains including those for food and medical supplies, disproportionately affecting poorer nations and possibly setting them back a decade of growth, according to the International Monetary Fund.[54] The extent of these long term effects will remain to be seen years into the future.
Global hunger crises appear to be increasing well above pandemic levels, with some estimates assuming death rates reaching above 10,000/day due to malnutrition.[55] Medical and vaccine production supply chain adjustments may lead to a 1.4 million person increase in tuberculosis deaths alone, with other diseases like polio and the measles making a comeback among unvaccinated children.[56] Globally, worst case estimates exceed 1 million children dying due to lack of access to basic medical care in third world countries this year.[57] Within the US and the UK, Alzheimer’s and dementia patients who were forced to go months without stimulation from family members saw a large increase in mortality, all while we were simultaneously praying for G-d in selichot not to leave us in our own old age as our faculties dwindle.[58] Deaths due to despair in the US, including drugs and suicides are already up by more than 50% due to the lockdowns alone, with this trend expected to continue for a while.[59] During the expected surge time for COVID-19, hospitals and other medical services were made unavailable, with tens of thousands dying in the US and UK alone due to undiagnosed or untreated heart attacks, strokes and cancer.[60]
Many have expressed concern not just about the mortality associated with COVID-19, but the long-term health effects it may have on the vulnerable population as well. This also must be weighed in context against the long-term harm of lockdowns. Cases of domestic abuse have skyrocketed, with families locked in together in a high-stress environment over a long period of time, as have divorces in the US.[61] Drug and alcohol dependence and addiction has also increased dramatically, even for those who have not overdosed.[62] There have been documented changes in brain anatomy in young adults due to extended periods of negative emotions, with as many as one in four now considering suicide.[63] Long term school closures and a lack of social interaction by children will lead to schoolchildren falling behind and losing years of educational and basic social developmental progress.[64] It is well documented that lost education time leads to lower life expectancy, reducing lifespans by an average of decade if a child is not able to complete high school.[65]
Economically, the cost for some subsets of the population will be far greater than others. While many in the Modern Orthodox community have expressed the desire for everyone to sacrifice ‘together’, and that only ‘we’ can stop the virus from spreading, the truth is that the bulk of the sacrifice was and will be made by the poorer among us. While many of the well-off experienced minor discomfort, the lower class has lost wealth and income at a rate unseen since the Great Depression, especially as compared to their wealthier counterparts.[66] This asymmetric sharing of the burden by the lower class will likely undermine many social justice or social equality initiatives of recent decades, with children of those impoverished likely to suffer most of all.[67] This lost year of income and wealth creation for many will also likely undermine our educational and non-profit institutions when they are most needed to serve our community. Generally, poverty also strongly correlates with lower life expectancy, with lifespan reductions of 10 to 15 years for the lowest income levels as compared to those with higher incomes.[68] While social distancing policies may briefly delay mortality for some due to COVID-19, it simultaneously causes a significant decrease in life expectancy for others.
Many of these long-term effects could and should have been considered in advance, but at this point the data unmistakably indicates that lockdowns are causing significant amounts of death and long-term harm that rivals the damage caused directly by the virus itself.  At this point, and for the foreseeable future, we remain in a period of uncertainty as to whether the virus itself or the lockdown will be more harmful to society as a whole. From a utilitarian perspective, upon which many public health policies have been built, politicians and technocrats may take the approach of trying to weigh which of these two evils would be most palatable in the interest of public good. Issues to consider would include not only the amount of deaths, but also the remaining lifespan associated with each death or even the value contributed by different members of society that would be affected.[69] Indeed, the British National Institute of Health has a formula which helps it decide how much each life is worth and how to decide on the expenditure of public funds for personal health.[70]    

He who saves one life…

From the Jewish philosophical perspective though, there is little halachic literature advocating for a utilitarian approach to deciding how to weigh lives.[71] For Jews, every life is valuable, and there are a number of Biblical commandments that do not allow a Jew to stand by when another may be in mortal danger. If one knows how to swim, for example, he is obligated to jump in to the water to save another who is drowning. It is nowadays also generally considered to be a mitzvah to donate a kidney to someone in need, if that does not put you in significant danger.[72]  
Where things get more complicated in Jewish philosophy is when one of two individuals, or subsets of people, will perish no matter what decision is made.[73] The question of what religious requirement there is upon the individual in this scenario seems highly relevant to the present quandary we are facing. If asked to kill another directly or risk being killed, one Jews is not permitted to kill the other, as the Talmud asks rhetorically: who is he to decide who should live and who should die?[74]
Alternatively, a case is outlined where two people are walking in a desert and only one has a canteen with enough water to survive the hike. Ben Petura argues that there is a requirement to share the water even if it means both will die. Rabbi Akiva however rules that the owner of the canteen is not obligated to share his water, as preserving his own life takes precedence over the saving of another.[75] The Talmud seems to accept this approach and expand it to matters of public policy, ruling that an entire city may choose not to share its water with another city who needs it, as the city’s inhabitants’ lives should take precedence as well.[76]
To explain Rabbi Akiva’s approach, Rashi and Maimonides both assume that when presented with tough catch-22 choices like these, certain Biblical commandments are no longer applicable.[77] According to Rashi, when two lives are at stake in different ways, the halachic imperative to save a life disappears, as the entitlement of both individuals to life cancels out the obligation to save only one of them.[78] When in the desert with insufficient water so that at least one person will die, one is therefore allowed, if not encouraged, to act in their own self-interest as their life takes precedence. Extended to the laws of pikuach nefesh, if faced with the multiple options that put different populations at risk, like we seem to have with COVID-19, there would be no halachic imperative to act one way or another. Individuals are allowed, if not encouraged, to act in the way they view is correct, even if it is also self-serving.
Maimonides also seems to come to a similar conclusion but from a different perspective. When faced with a catch-22 situation, even if one Jew actively kills another, he is not considered guilty of murder. Rather, he is considered coerced (anoos) to make a terrible decision. The crime he would be considered guilty of is failing to sanctify G-d’s name rather than murder.[79] When applied to the desert situation as well, we are no longer dealing with murder or even pikuach nefesh. Our obligation at these problematic times is to sanctify G-d’s name when possible, but otherwise to act as we see fit, even if it serves our own interests over another.
In the situation when it is unclear which subgroup would benefit more from one’s decision, Rav Menashe Klein argues vehemently that each person must choose based on what they see fit, acting to save the one you see most probable to benefit from your decision.[80] Similarly, in the situation where it is uncertain if one group may perish as a result of your actions, but a certainty that the other would, the Beit Yosef argues that the laws of saving require you to save those who are certain to be saved first.[81] If indeed it is only questionable that social distancing decreases mortality, but a clear certainty that lockdowns increase mortality, the Beit Yosef’s recommendation may be clearest of all that we should prioritize what we know to be a certainty that will save lives.

It’s Complicated
Tough complicated situations like COVID-19 actually take us beyond the realm of clear-cut halachot like safek pikuach nefesh or murder. These decisions are not necessarily ones that require the input and rulings of rabbinic figures, or even necessarily the professional dictates of subject matter experts.[82] Albert Einstein once said: “We should be on our guard not to overestimate science and scientific methods when it is a question of human problems, and we should not assume that experts are the only ones who have the right to express themselves on questions affecting the organization of society.” The decisions made in these situations are matters of public policy and governance and must weigh costs and benefits across all members of society. Every single person’s opinion should be considered equally valid, and individuals may even be allowed to make independent decisions from those of communal leaders.[83]
In the Talmud, the Rabbis clarify for us that we are G-d’s servants, and not the servants of servants.[84] During these times, many have dealt with inner turmoil on how to balance their Biblically mandated requirements to care for and support family members or business owners who are struggling during these times with instructions from community leaders that they refrain from doing so due to safek pikuach nefesh. Yet no matter what decisions we make on a daily basis, there are some who may suffer either due to a slightly increased chance of catching a deadly disease, or others due to a slightly increased chance of descending into poverty or mental unhealth. It is not clear that the laws of safek pikuach nefesh are relevant in this situation at all, let alone that a single approach can be forcibly imposed upon an entire community by community leaders or experts. Extending Rabbi Akiva’s logic, one could suggest that Individuals in these tough situations are allowed and expected to make the decisions that they believe are a correct balance for themselves in observing G-d’s commandments and their own responsibilities, including their responsibility to feed and care for themselves and their own families.[85]

Conclusion

The COVID-19 pandemic is undoubtedly an awful disease that has presented the Jewish nation and the world with seemingly awful choices. Many rabbinic and Jewish communal leaders have taken the approach of mandating strict rules upon entire populations in order to potentially minimize deaths and harm caused by this awful disease to those who would be vulnerable to it. This is largely based on the halachic theory that all things should be set aside for the purpose of safek pikuach nefesh. Throughout this series, we have demonstrated that this basic assumption is not necessarily accurate. In applying it, however, we have inflicted death and harm on entirely different subset of the population. Things that must be reconsidered in light of this development include:  

1.     On an individual level, the likelihood of causing a death is at the very low end of statistical probability. Would any halachic imperatives limiting activities due safek pikuach nefesh even apply to the individual in this scenario?

2.     As more and more data becomes available and it becomes less and less clear that the implementation of social distancing has saved any lives, does the law of safek pikuach nefesh even apply to communal action either?

3.     If the law of safek pikuach nefesh does still apply, as there are still numerous experts who claim that it does, does the safek that social distancing may reduce COVID-19 deaths override the concern of certain pikuach nefesh due to lockdown deaths?

4.     When faced with a catch-22 situation, in which people would die no matter what decision is made, is there any halachic or religious requirement to follow an expert’s or leader’s recommendation? Should individuals be restricted from making the decision that they deem most appropriate considering all of the information that is available to them at the time?

If the answer to any of these questions is ‘no’, than as a community we must reconsider the approach we have taken to this point.
When blessing B’nai Yisrael, Balaam declares that there is no augury or divining among its inhabitants. Rather, the people of Israel declare: “Look what G-d hath wrought”.[86] Balaam was pointing out that, as opposed to the pagan nations living nearby who assumed they could foresee or control natural forces, the Children of Israel understood that there are some phenomena that are controlled only by G-d, and are beyond man’s ability to foresee or control. These nearby pagan nations were known to practice rituals like passing their children through fire, likely assuring their deaths, all to appease their pagan gods and assure some certainty or favorability with regards to natural occurrences like annual rainfall. The Jewish approach has never been to sacrifice our children or any person’s well- being in these uncertain situations, but rather to turn ourselves to G-d. As Isaiah himself states, G-d does not want our sacrifices, but rather that we demonstrate a commitment to fairness and care for those in need of help.[87]
Maimonides echoes this notion when he says that if we cannot observe a part of nature which is beyond our reach, it is madness and hubris to pretend we have wisdom that is only known by G-d himself.[88] There seems to be an inherent need for people to “do something” in order to feel in control of an uncertain situation like the COVID-19 pandemic. It could be argued that the responsibility of Jewish leaders at these times is to realize that control is sometimes not possible.[89] Those leaders should instead encourage prayer and mitzvot with a focus on helping those in need in order to reverse the horrible gezeirah, rather than endorse practices that scientifically have not been proven, and may result in sacrificing the well-being of others.[ 
The COVID-19 pandemic has done terrible harm to the world, and to the Jewish people specifically. Nevertheless, we must be careful not to assume that we have the ability to control natural disasters, especially if it comes at the expense of other members of our community or at the expense of our relationships to other members of Klal Yisrael. We should all be zocheh to a refuah sheleimah bimheyra biyamenu. 

 


[47] Tamid 32a

[48] Sotah 39B

[49] The article will continue to use this figure as it is widely publicized by the CDC, though it should be noted that many US States have notably used a more expansive definition to code deaths due to Covid as opposed to the WHO’s guidelines to not include deaths that should be attributed to another cause, or when there was a recovery prior to death. https://apps.who.int/iris/rest/bitstreams/1279836/retrieve

[50] An earlier estimate and breakdown from August can be seen here: https://www.wsj.com/articles/death-toll-from-covid-19-pandemic-extends-far-beyond-virus-victims-11600507800?mod=hp_lead_pos2 The overwhelming majority of these excess deaths occur after March and in younger age brackets, meaning  they would not likely be attributable to undiagnosed Covid-19 deaths.

[51] A few studies confirm this analysis that approximately a third of cumulative excess deaths in 2020 should be assigned to lockdowns rather than the disease itself. Extrapolating the study results to look only at current excess deaths in October, this number would increase to about 80% of current excess deaths being due to lockdowns, rather than the disease itself: https://jamanetwork.com/journals/jama/fullarticle/2771761 & https://www.medrxiv.org/content/10.1101/2020.08.31.20184036v3.full.pdf

[52] Estimates of specifically how many fatalities were caused, and still continue to be caused by each aspect of the lockdown, all using CDC data, can be found on the website and in the tweets of the Ethical Skeptic: https://twitter.com/EthicalSkeptic/status/1312196209709260801/photo/1

[53] This can be confirmed using EuroMomo data (https://www.euromomo.eu/bulletins/2020-38) or ourworldindata excess death calculations plotted against stringency index, school closure or work closure days. In England, this spike has been estimated to be almost 9 times higher than covid-19 deaths: https://www.telegraph.co.uk/news/2020/09/22/unexplained-excess-deaths-home-almost-nine-times-higher-covid/

[69] When considering years of lives lost, this study estimates that in the US, the amount of life years lost to lockdown will be ten times as many as those due to Covid-19: https://www.revolver.news/2020/08/study-covid-19-lockdowns-deadlier-than-pandemic-itself/

[70] See here for a fascinating article on how this process was upended during the current pandemic: http://www.israelnationalnews.com/News/News.aspx/288258

[71] Nonetheless, a strong case can be made that the way to maximize utility or reduce overall harm to society is to provide the population with as much information as possible and let each individual make their own decision based on specific relevant information he has about a situation. For more on this Austrian school approach to economics, see: https://www.aier.org/article/leaving-people-alone-is-the-best-way-to-beat-the-coronavirus/

[72] I have oversimplified the discussion around organ donation, though would recommend Rav Moshe Feinstein’s approach is most relevant here where he concludes that it is a mitzvah to donate a kidney, but not necessarily required. Igrot Mose Yoreh Deah 2:174

[73] For an excellent summary on this topic, which is used for the basis of this discussion, See Rav Elyakim Krumbein’s Lifeboat Ethics: https://www.etzion.org.il/en/download/file/fid/3990

[74] Sanhedrin 74a – the Sugya of “Mai Chazit”

[75] Bava Metzia 62a

[76] Nedarim 80b. Interestingly, Rabbi Yossi even expands this ruling to include that the city’s laundering requirements also take precedence over another city’s drinking requirements, as unlaundered clothing can also lead to mental illness in the long run.

[77] Tosfot’s explanation (Sanhedrin 74b d”h Esther), that in these situations one may not actively murder, but may do so passively, is more complicated to apply to the Covid-19 situation. One could argue that the passive path is specifically to lockdown and do nothing, while I would argue that conducting one’s life normally is the applicable path of inaction.

[78] Rashi - Sanhedrin 74b, and for a longer analysis, see Rav Krumbein’s article quoted above.

[79] Mishne Torah, Yesodei Ha-Torah 5:1-5:5

[80] Mishne Halachot 9:349

[81] Choshen Mishpat 426

[82] President Eisenhower warned in his farewell address of the “danger that public policy could itself become the captive of the scientific-technological elite” – a warning that rings all too true today. https://www.wsj.com/articles/that-other-large-complex-ike-warned-about-1522162026

[83] I am in no way condoning acts against the rules of public government or discussing the halachot of Dinah DeMalchutah Dinah. This article is specifically focused on the propriety of the use of halachic terminology like ‘safek pikuach nefesh’ to enforce rabbinic rulings during these very complicated times

[84] Kiddushin 22b. I recommend reading Rav Aharon Lichtenstein’s article on how to balance individual rights and halacha. While he argues that halacha and rabbinic authority should take precedence, he also acknowledges that there are times when rabbinic authorities should not overstep their bounds or exert coercive pressure in the “enforcement of morals”. Additionally, an individual has the right to reject a posek’s authority and should act how they see fit in balancing their Torah commandments, if they believe that that the Posek is not aware of the specific information that an individual is facing: https://www.etzion.org.il/en/individual-rights-halakha   Rav Lichtenstein’s position on the relevant discussion of Da’at Torah can also be found here: http://www.zootorah.com/RationalistJudaism/DaatTorahLichtenstein.pdf

[85] On this topic, Rabbi Eliyashiv ruled that one is not required to spend more than 20% of his wealth in order to save another, as impoverishment is considered a partial death due to Rabbi Akiva’s ruling. (quoted in Nishmat Avraham V, CM 426:1) Also see: https://www.jlaw.com/Commentary/whatcost.html On putting one’s family first in these situations, see Aruch HaShulchan, Yoreh De’ah 251

[86] Bamidbar 23:23

[87] Isaiah 1:11-17, also see Deuteronomy 18:9-13

[88] Guide to the Perplexed 2:24:4

[89] Please see this WHO bulletin from 2011 warning of this exact problem, that the pandemics of fear lead to worse incomes when leaders feel a need to prepare for worst case scenarios imagained by ‘disease experts’, rather than allowing those on the ground to respond and adapt to the problems at hand in each unique scenario: https://www.who.int/bulletin/volumes/89/7/11-089086/en/

[90] See Ramban Deuteronomy 18:13

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