Ask the Rabbi: Should victims or terrorists be the medical priority?

Our responses can raise deep ethical questions.

By RABBI SHLOMO BRODY
March 30, 2016 19:59
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THE AFTERMATH of a stabbing attack in Jerusalem.. (photo credit: MARC ISRAEL SELLEM)

 
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In the past few months, we have been plagued with a series of “lone-wolf” terrorist attacks in which dozens have been killed and many more wounded.

Several aspects of our responses to such incidents can raise deep ethical questions.

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In a previous column, I argued that on the basis of both intrinsic and pragmatic considerations, Jewish law eschews killing a terrorist once the immediate threat that they represent has been completely neutralized. In this column, I will address the question of whether medics or hospitals should prioritize treating severely wounded terrorists over more moderately wounded victims.

In the midst of this wave of terrorism, the heads of the Israel Medical Association and the Magen David Adom ambulance service announced that professional protocol mandates treating the wounded exclusively on the basis of their medical condition, independent of their national origins or moral liability.

Medical professionals should treat patients without judgment, leaving questions of moral and legal liability for other authorities at a later time. Just as we treat car accident victims equally without asking who caused the accident, so too we should act neutrally at the site of a terrorist attack.

This pronouncement drew sharp rebuke from the heads of the Hatzolah ambulance service and the ZAKA rescue organization, who announced that they would give priority to victims when they were sufficiently wounded to require immediate care, even if the terrorist was more severely wounded.

This passionate debate ultimately rests on questions of triage in which societies must prioritize how to allocate scarce medical resources (in this case, emergency medical personnel).

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The Talmud addresses one such case in a wellknown debate regarding two thirsty desert travelers in which only one possesses a bottle of water sufficient to save himself alone.

Whereas Ben-Petura mandates that they split the bottle, thereby saving both for a limited time, Rabbi Akiva (and the normative law) asserts that the bottle owner should drink the water and save himself, since “one’s life takes precedence over the life of one’s friend.”

Legal decisors such as Rabbi Yaakov Emden discuss whether this principle would also apply to prioritizing the life of family members (e.g. spouse or children) before others. Others debate whether the bottle owner may altruistically choose to give the bottle to his companion, with Rabbi Yehiel Weinberg answering yes, Rabbi Isser Unterman saying no, and Rabbi Abraham Kook somewhat equivocating.

In the current case, however, we are dealing with a third-party rescue by a public servant. Who should get priority in this situation? Some decisors, including Rabbi Abraham Karelitz, point to a talmudic passage (Horayot 13a) as a potential resource for this dilemma. The Mishna states that a man takes preference over a woman when it comes to sustenance and restoring lost objects, but a woman takes precedence when it comes to provisions of clothing and being redeemed from captivity. It similarly asserts that a kohen (priest) takes precedent over a levite, and that a scholar - even if born a bastard - gets precedent over an ignoramus, even if he is a kohen gadol (high priest). Elsewhere, the Talmud argues that a high priest sent to lead the troops in war (kohen mashuah milhamah) received priority over a vice kohen gadol.We thus have a series of criteria giving priority based on a variety of factors, including genealogical sanctity, social utility, merit, and the level of threat.

Does this passage serve as a source for life-saving triage in the contemporary era? Perhaps, as seen in the opinion of 16th-century Rabbi Moshe Isserles that one should save a drowning man before a woman, seemingly because men are obligated in more mitzvot than women. Yet as Prof. Avraham Steinberg has noted, many 20th century scholars have questioned the feasibility of this or its relevance in the contemporary era. More fundamentally, contemporary scholars including Rabbi Eliezer Waldenberg have noted that some medieval scholars, including Meiri, asserted that the mishna passage was only establishing priorities in food handouts, as indicated in the parallel passage in the Talmud Yerushalmi.

Waldenberg further argues that even if this mishna was referring to priorities in saving life, the rule giving preference to men over women was not codified in the codes of Maimonides, R. Ya’acov ben Asher, and R. Yosef Karo because the mishna ultimately cares more about the merit earned by the piety of the men and women (i.e.

how many good deeds they actually do) and not the number of commandments they could theoretically perform. Such determinations, of course, cannot be easily made, and particularly in the context of emergency care.

Other scholars have marginalized the mishna by asserting that these priorities would only apply when all other factors are equal. Yet if one patient begins treatment earlier, they should not be abandoned for someone else.

Alternatively, if one patient’s health situation is significantly worse than another’s, then that patient has preference, irrespective of their social position.

Accordingly, rabbis Moshe Feinstein and Shlomo Zalman Auerbach have contended that the Mishna is of limited relevance in contemporary triage circumstances, in which we correctly tend to treat people equally based on medical criteria.

That said, it remains problematic to apply such egalitarian notions when one patient is a victim and another is an enemy or a terrorist. This basic social distinction, of course, would be made in the context of any battlefield triage care, and is presumably assumed by talmudic passages that recognized the importance of national interests.

The medical association has countered that we are dealing here with non-military medics and that introducing social distinctions into healthcare will lead to a dangerous slippery slope. Nonetheless, it ultimately remains difficult to justify prioritizing national resources for an enemy over the needs of a victim.

The writer directs the Tikvah Overseas Students Institute and is a junior research fellow at the Israel Democracy Institute. His first collection of columns, A Guide to the Complex: Contemporary Halakhic Debates (Maggid), received a National Jewish Book Award. Facebook.com/RabbiShlomoBrody

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