Clergy and Educators

ICJS Scripture Forum, 2004-2005
Session #7

Scripture Forum
Session #7
Goucher College
April 1, 2005

Brief introduction:
   The texts that will be used in today's session were originally prepared for a study that took place with the ICJS Board the day before Purim. The first text was chosen because of its connection to Purim, but it is hoped that the text might retrospectively shed light on the case of Terri Schiavo. The other texts are more di-rectly related to the Schiavo case.
   The texts to be studied are: Babylonian Talmud, Megilla 7A; Babylonian Talmud, Ketubbot 104A; "Jewish Principles in Bioethical Decision-Making"; and "Proceed-ings of the Committee on Jewish Law and Standards, 1986-1990."

Text #1: Babylonian Talmud, Megilla 7A
Rava said: "One is obligated to drink on Purim until one is unable to distinguish between ‘cursed be Haman’ and ‘blessed be Morde-chai.’"

Rabba and Rabbi Zeira celebrated their Purim feast together. They drank. Rabba arose and slaughtered Rabbi Zeira. The next morn-ing he (Rabba) prayed and revived him (Rabbi Zeira).

The following year he (Rabba) said to him (Rabbi Zeira): "Let the gentleman come and we will celebrate the Purim feast together." He (Rabbi Zeira) responded: "A miracle does not happen on every occasion."

Discussion:

• This is a problematic and troubling text.
• To drink until one cannot distinguish between "cursed be Haman" and "blessed be Mordechai"
  is to be really hammered.
• Maybe not that drunk. The gematria of "cursed be Haman" and "blessed be Mordechai" are equal, and the point is to drink enough so that one cannot figure out the gematria. That isn't necessarily very drunk. [Note: Gematria, or gimatriyyah (from the Greek word geometria) is "the calculation of the numerical value of Hebrew words and the search for other words or phrases of equal value" (The Oxford Dictionary of the Jewish Religion, p. 273). Each Hebrew letter has a numerical value.]
• The rest of the text is a cautionary tale. It also shows that the notion of resuscitation exists in the Jewish world (as well as the Christian, cf. the raising of Lazarus in The Gospel According to John, chapter 11).
• Principles of bioethics that may be derived from this text:
• A person is not to place him- or herself at unnecessary risk. The Heredi [fervently Orthodox] community believes that a person should show great trust in God; and for this reason some people in this community have a sense that because they have such faith, they don't need to take ordinary care. Such a person might believe it is not necessary to use the seat belt in an automobile because God will take care of him.
• We don't rely on miracles, which is the point of contention in the Schiavo case.
• Objection: The text says that "a miracle does not happen on every occasion." That is more nuanced than "we don't rely on miracles."
• Response: We don't proceed on the expectation that a miracle will occur. You have only so many "Mi she-Berakh," so you shouldn't waste them.

Text #2: Babylonian Talmud, Ketubbot 104A
The day that Rabbi* died the sages had decreed a day of fasting and prayer. They said that anyone who said that Rabbi had died was to be thrust through with a sword. Rabbi's maid went up onto the roof and cried out [to heaven], "Those on high want Rabbi and those below want Rabbi; may it be God's pleasure that those below defeat those on high." But when she saw how often Rabbi had to remove his Tefillin to go to the toilet and groaned in pain she [changed her prayer and said] "May it be God's pleasure that those on high defeat those below." All this time the sages continued their prayers. She took a jug and hurled it to the ground. [The noise startled the sages and] they stopped praying. At that moment Rabbi breathed his last. The sages told Bar-Kappara to go in [to Rabbi's room] and see [what the situation was]. He went in and found Rabbi dead. He tore his garments and cried out, "The heavenly angels and mere mortals were struggling over the holy ark: the heavenly angels have defeated the mere mortals and the holy ark has been captured!" They asked him, "Is he dead?" He replied, "You said so, not I!"

*A reference to "Rabbi" without a name attached is a reference to Judah the Prince (Yehudah Ha-Nasi’).

Discussion:

• This text became the locus classicus for bioethics.
• Some contextual information: (1) In the rabbinic era, men wore tefillin all day long, but they had to be removed before going to the bathroom. (2) The power of the incessant prayers of the sages was what was keeping Rabbi alive. When the maid dis-tracted them for a moment, they stopped praying and Rabbi died.
• One participant pointed out that the effectual power belongs to the men. The maid's power
  was manipulative.
• Objection: As a female slave, the person in that society with the lowest status, the maid had no power. She worked around the power to get done what needed to be done.
• To say that she was manipulative is not neces-sarily negative, but the word "manipulative" is negatively charged.
• The text reinforces a particular view, namely, that a female slave cannot demonstrate an insight in a normal way.
• In the case of this text (as locus classicus), even the biggest "black hats" learn Torah from a wom-an. The text provides a response to the question, "How do I relate to someone who is dying?" The text demonstrates that there is a difference between killing somebody and removing an impediment to death, although application of
  this principle is not so simple. There is nothing
  in the text that indicates approval of the maid's action, but there is in the commentaries.
• Question: If the maid were a nurse and the sages were doctors, what would be the nature of the action she took?
• The sages are not the doctors; the sages are
  the respirator. The question is, "Is removing the respirator actively killing the patient or simply the removal of an impediment to death?" It was be-lieved that a rhythmic sound or putting salt on the patient's tongue could keep somebody from dying. These were considered impediments to death, so it was all right to chase away whoever was making the sound, or to remove the salt from the tongue.
• Today those things would be labeled "extraordinary measures."
• Roman Catholic ethicists no longer use the labels "ordinary" and "extraordinary" because today's "extraordinary" is tomorrow's "ordinary." Now they speak of "proportionate" and "disproportionate" means of preserving life. The question asked is: "Does a treatment offer a reasonable hope of benefit while not entailing excessive burden or imposing excessive expense on the family?" And
  it is the responsibility of the patient to make that decision; the patient is to provide advanced directives so that family and doctors will know what they are to do.
• Valuing individual autonomy has been lost in the current religious conversation surrounding the case of Terri Schiavo. Richard John Newhaus tried to boil the issue down to "love your neighbor."
• Everyone loved Rabbi, but the maid loved him more than the sages and so understood that what was happening was about him, not them. It's a gender thing.
• The maid was not thinking in terms of ethical principles; she was responding to pain.

Text #3: "Jewish Principles in Bioethical Decision-Making"*
(*The following represents a distillation of the principles that appear to underlie the responsa of Rabbi Elliot Dorff and Rabbi Avram Reisner on end-of-life issues. Rabbi Charles Arian is responsible for the wording and enumer-ation of the principles, and he cautions that they have no "canonical" status.)
1. The body belongs to God. We are not free to do whatever we please with it.
2. Killing another (except as duly-administered punishment for a crime, or in self-defense or in warfare) is strictly prohibited. "Mercy killing," no matter how well-intentioned, is murder.
3. Suicide is prohibited. To assist another to do what is prohibited is also prohibited.
4. There is a difference between "killing" and "removing an impedi-ment to death."
5. Jewish law recognizes the difference between "doing" and "not doing." It is not always required to take every possible medical action.
6. There is a difference between medical care intended to cure the underlying disease and medical care merely intended to prolong the life of an incurable patient.
7. Judaism recognizes the principle of dual effect. Medications given to relieve pain may have the unintended side effect of some-what shortening the patient's life. We look at the intent of the treatment to determine its permissibility.
8. Because all surgery involves significant risks, patients have fairly wide latitude in declining surgery. If surgery is declined, it needs to be because of fear of the risks of the operation or of the side ef-fects, not because of a desire to die.

Discussion:

• The first point is not generally a part of American culture: Americans tend to think that the body belongs to the individual.
• A participant questioned the distinction made in point #6 between curing and prolonging life.
• Suggestion from another participant in reference to point #6: Doctors can treat a patient to cure a temporary infection even though the patient is still incurably ill.
• Another participant felt that it is naive to think that you can sort out the difference between a fear of risks and a desire to die (point #8).
• Response: This concerns Jewishly appropriate choices about which a rabbi needs to inform a patient.
• Counsel may not be all that helpful.
• No one can determine if a person is acting in accord with principle #8.
• In reference to principle #7, Roman Catholicism uses the language of "primary" and "secondary" causality. For example, the use of morphine to ease a patient's pain may cause the death of the patient, but the morphine is allowed because it would be considered "secondary causality" with regard to the death.
• If Americans fully disagreed with point #1, then we would allow people to commit suicide. We're not there yet. There is a doctor in the Netherlands who has developed a protocol to help hasten the death of terminally ill children who are suffering. That practice calls into question the notion of "mercy killing," but it's really related to point #7.
• If the body does belong to God and the child is suffering, we could say that God cares for the child and does not want the child to suffer.
• Response: It's very dangerous to derive an ethical principle from that notion because one could then begin to say in every case, "God really wants . . ." That is a slippery slope.
It would be more honest to say that we're killing the child, but it wouldn't be better.
• Where you preserve wiggle room in making ethical decisions, you also preserve the slippery slope.
• But one slippery slope is far more dangerous than the other.
• Things always operate on two levels: the level of the law and the level of practice.

Text #4: from "Proceedings of the Committee on Jewish Law and Standards, 1986-1990," p. 76.
(Quoting Rabbi Elliott Dorff): The first story I heard about Jewish law, in fact, came from my father. My grandparents and their children lived across the street from a large Orthodox synagogue, of which they were members. Because of the proximity, my grand-parents often hosted guests of the congregation for Shabbat. One Friday afternoon my grandmother sent my father, then a lad of fif-teen or so, to ask Rabbi Solomon Scheinfeld when the guests for that week were expected. Rabbi Scheinfeld served that congrega-tion from 1902 to 1943, and, according to the Encyclopedia Judaica, he "was the recognized head of the city's Orthodox congregations during his tenure." The Encyclopedia clearly refers to the camp of the Mitnagdim, for the Twersky family was firmly in charge of Mil-waukee's Hasidim. When my father entered the rabbi's office, he was literally in the process of deciding whether a chicken was kosher. As Rabbi Scheinfeld turned the chicken over in his hands, he asked the woman who had brought it many questions about the physical and economic health of her husband and family. After he pronounced the chicken kosher and the woman left the room, my father asked him why he had asked so many questions about her family. The rabbi turned to my father and said, "If you think that the kosher status of chickens depends only on their physical state, you understand nothing about Jewish law!"

Discussion:

• This passage points out the importance of context and of having both a masculine and feminine voice in the conversation. Identical facts applied to the situations of different people may yield a different answer. The rabbi's job is to figure out the will of God for a particular person in a particular situation.
• What questions was the rabbi asking the woman?
• He was asking questions to find out if the family could afford to buy another chicken.
• Why ask so many questions if the woman's poverty was obvious?
• It's not very pastoral to ask, "Are you poor?"
• The rabbi could have been trying to find out how important it was to the family that the chicken be kosher. Technically, there should be a "yes" or "no" answer to the question of whether or not the chicken is kosher, but the story shows that the rabbi has to take other factors into consideration.
• The rabbi has to determine whether or not he can employ certain leniencies. The family may be poor, and it may be five o'clock on Friday afternoon, but the rabbi could still be forced to say that the chicken isn't kosher. Nothing is automatic.
• The context of this story suggests that you have to listen to two voices in making ethical medical decisions -- the voice of abstract principles and the voice of the particular situation in which they are to be applied. This story humanizes the law, making the particular situation a notch more important than the principle involved.
• The story also shows the humanity of the rabbi. Decisions like this also depend on what denomina-tion of Jews are involved: Conservative and Reform Jews make more accommodations. More right-wing Jews tend to be more rigid, less accommodating, allowing fewer leniencies. The purity of the chicken, of the dishes, etc., is still very important because all of this goes back to issues of purity in the Temple.

Text #5 (which was discussed without being read due to time constraints): from "Proceedings of the Commit-tee on Jewish Law and Standards, 1986-1990," p. 100-101.
4. Removal of Nutrition and Hydration from the Terminally Ill. Applying these principles to two other cases is harder and more controver-sial, but we must address them. While most would agree that, at least at some stage, withdrawing or withholding medications from the terminally ill is halakhically justifiable, there is considerably more debate concerning artificial nutrition and hydration. Every person must be afforded normal food and liquids. This is an ob-ligation of the community with regard to the poor, and if a sick person cannot afford normal food and liquids, it becomes part of the duty of the community and its agent, the physician, to provide them as part of the individual's medical care.
   When the person cannot or will not ingest food and liquids through the mouth, however, may the community -- or must it -- feed the patient through tubes? In the Cruzan case, the United States Supreme Court determined that it did not have enough evidence of how Ms. Cruzan would want to be treated if comatose. That was relevant because if there were a sufficiently clear expres-sion of her will, the justices needed to balance the American values of personal autonomy and liberty against the state's rights to as-sure the welfare of its citizens. The Jewish question, however, is somewhat different. It is this: in light of the individual's duty to take care of God's property (Policy #B-1), may an individual, or a person acting on his or her behalf, refuse to ingest nutrition and/or hydration intravenously or enterally (that is, through the intestines) when it is not possible to do so orally?
   Most rabbis who have written on this issue have answered nega-tively, even if the patient is terminally ill. They draw a distinction between medications, on the one hand, and nutrition and hydration on the other, permitting the withdrawal or withholding of the former but not the latter. They reason that medications are, by definition, an unusual substance introduced into the person's system to cure an illness, and therefore they may be removed or withheld if they have little chance of functioning in that way. Nutrition and hydration, however, are needed by everyone. Therefore the burden of proof shifts: one needs to justify the use of medications, but one needs to justify the failure to provide nutrition and hydration.

Discussion:

• Dorff and Reisner agree that you can remove an impediment to death in a terminally ill patient,
  but that reasoning does not apply to a person
  in a persistent vegetative state, regardless of
  the fact that such patients are not going to get better. Dorff and Reisner disagree over the legal definition of "feeding tube": Is it medicine or feeding?
• The question of what constitutes "life" is a complication.
• "Brain death" is accepted by Dorff, Reisner, and the Chief Rabbinate of Israel. Some elements of the Orthodox community also accept "brain death." But a persistent vegetative state is not "brain death." Rabbi Dorff considers a feeding tube to
  be medicine, so he says that it is permissible to remove it. Rabbi Reisner says that it is never ethical to starve someone to death.
• Does what the patient wants factor into the deci-sion? (Yes.) If you follow Reisner, the patient's intentions would not be relevant.
• We're trying to adjudicate Jewish law in a context where Jewish law is not the law of the land.
• The question is, "Do my piece of paper and my wishes matter if Reisner is making the decision?"
• A feeding tube is not the same as eating and drinking, or being able to eat and drink.
• Reisner would not allow a person to write a directive to withhold a feeding tube.
• Halakhah does not accept "quality-of-life" arguments.
• In the Schiavo case, the feeding tube really wasn't the issue. The issue was the persistent vegetative state and the attachment to her as a self-aware individual. That's what made everything so complicated. What is striking is how so many people simply could not accept what happened to Terri Schiavo.
• The response to the Terri Schiavo case has not been an argument for the sake of heaven, and it's been so politicized that religious leaders are not going to be able to take it back.
• It was really problematic that she was labeled a "disabled person." This was frightening for people who are disabled.
• Who helped the Schindlers to come to grips with their daughter's condition? Pastoral caregivers needed to do this, to be honest with them.
• How much of their unwillingness to accept her condition had to do with their having ignored her bulimia? They didn't accept either condition, or they ignored the first and then could not accept that the second condition was caused by the first one.
• One participant was particularly appreciative of the level of honesty in the ethics of Roman Catholicism because the Roman Church realizes that most Americans look at the quality of life
  and at the financial ramifications for the family.
• About stuff that matters, everything is a slippery slope, so you need to know where you want to go. That life is precious is an absolute with reference to God; with reference to human beings, however, it is necessary to qualify the issue. The [Roman Catholic] Church is not totally honest about that.
• One participant stated a wish that the media would chose far better voices to carry on this conversation.
• We need a conversation in which both sides acknowledge the ambiguity.
• We can't have that discussion with people who cannot see the moral ambiguity.
• Then we need to tap into the voice of the "silent majority."

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