Thursday, May 14, 2020

Is G-d Under Attack? Part I

Synagogues, study halls, yeshivos, and schools are all closed.
Public worship has been banned, even "porch minyanim" (in which each worshiper remains on his own property)!
Attendance of weddings, circumcisions, and funerals have been outlawed. No one may observe the mitzva of visiting the sick or comforting the mourner.

All public observances in Judaism have become verboten.

The mayor of NYC singled out the Jewish community and threatened them with summons and arrests. Oddly, this discriminatory ultimatum was ignored or rationalized by the very community that was targeted. In fact, most Jews were ashamed of their coreligionists who dared to observe a mitzva (and attend a funeral procession) in violation of social-distancing orders.

Rabbinic supporters of these restrictions parrot the "science" of the so-called public health policy. They cite pikuach nefesh, the moral imperative to save lives that is paramount in Judaic law.
However, none of these rabbis bothered to take the time to provide any halachic rationale or precedent for their sweeping and far-reaching application of this principle. Furthermore, none bothered addressing the actual science behind these policies and whether Judaism even recognizes it as a legitimate factor in pikuach nefesh.

To make matters worse, these same outspoken rabbis who were eager to enforce the policies were strangely silent while liquors stores, coffee shops, hardware stores, etc., were all permitted to remain open in their own communities. The policy allowed "essential services" to continue, but religion (communal prayer, Torah study, etc) was deemed non-essential by its own practitioners and clergy.

A close relative of mine left his house to recite the kiddush levana blessing last night. As he stood in the street with his children, a pedestrian with some shopping bags shouted out: "Nu!? The rabbonim ruled: no praying outside!" My relative responded: "But shopping is okay?" The shopper reacted angrily: "Sakonas nefoshos! You're endangering lives."

The bizarre encounter has become remarkably commonplace in Brooklyn. Pikuach nefesh has become the battle cry of social-distancing proponents, but no explanation is ever given. It's a mantra with no meaning.

The actual death rate to COVID-19 is quite low, relatively-speaking. The WHO estimates the mortality rate to be 3.4%, but that based on the number of patients who tested positive. It is assumed that many multiples of that number of people had been infected but presented no symptoms. For argument's sake, let's liberally assume that the rate is one is a thousand.[1]

Question: does a risk of 1/1,000 invoke the principle of pikuach nefesh?
Answer: depends.

Halacha prohibits killing spiders on Shabbos, even though there is one-out-of-a-thousand chance someone might be endangered by the spider falling into his food[2]. Apparently, one out of a thousand is insufficient risk. On the other hand, one in a thousand is considered substantial risk elsewhere in laws of Shabbos.

Childbirth for example, is considered a potentially-life-threatening situation. Consequently, we may violate Shabbos for the needs of a birthing mother. However, since the mortality rate is “less than one in a thousand,"[3]our sages were strict and required us to avoid Biblically-prohibited labors on her behalf, but to endeavor to do these labors in an unusual manner that isn’t Biblically prohibited. Nevertheless, if no alternative, the labor may be performed the regular way too. Even less than one in a thousand is considered adequate risk to override Shabbos. How do we reconcile this law with the apparent contradiction from the law against killing spiders?

It’s quite simple really. The spider hasn’t even fallen into the food yet. It’s crawling around elsewhere. One may not kill it, since even in event it falls into the food, the risk factor would be a mere one in a thousand. Conversely, a birthing mother is presently experiencing a condition which can potentially result in death, even in less than one in a thousand cases, but that present condition allows us to violate Shabbos on her behalf. [5]

The takeaway is this: if it is indeed true that COVID-19 has a mortality rate of .1%, it would justify violating Shabbos on his behalf once the patient presents with symptoms and tests positive. If the individual is healthy and hasn't tested positive, then the potential risk of 1/1000 in the possible event that he might be infected does NOT constitute valid grounds for violating Shabbos on his behalf.

Clearly preventative measures to avoid possible exposure to COVID-19 do not rise to the level of pikuach nefesh necessary to override Shabbos observance. However, the primary concern here is not with regard to the individual himself, especially as his own mortality risk might in fact be far less than 1/1000, but to elderly and immunocompromised who have a considerably higher risk of dying from the virus.

Let's imagine that 15% of infected octogenarians die from COVID-19. The question here is whether the commandment "Do not stand by idly over your fellow's blood"[4] obliges an individual to comply with social-distancing precautions to forestall the spread of the virus in order to prevent octogenarians (let's say) from contracting the illness.

We are not discussing going out and coming in close contact with such an elderly individual. Surely an elderly person ought to be sheltering in place, since the disease is far riskier for him. Instead, the question here is: does halacha recognize a rabbi's authority to ban a healthy individual from engaging in tefila b'tzibur or attendance of shul/beis midrash, since there is a concern that a) the individual is possibly an asymptomatic carrier, and b) might possibly pass it on to another person in attendance who c) might later come in close contact with an octogenarian and d) infect the latter, who now has e) a 15% risk from dying from the disease.

This is not just a safek sakonas nefashos, but a s'fek s'fek s'feiko, i.e. a doubt within a doubt within a doubt. Seems highly implausible that halacha recognizes tefilo b'tzibur of healthy individuals (who DON'T live with a vulnerable at-risk elderly person) as safek sakonas nefashos. The question here is whether the recommendation of public health officials has merit. These officials are looking at statistics for an entire population. Even a mere .1% amounts to many thousands dead out of a population of millions. Based on the advice of certain doctors, they determined that by imposing a stay-at-home policy that prohibits gatherings and "non-essential" public exposure, they can stymie the spread of the virus thereby saving lives. So while there might be no actual risk for any one particular minyan to convene, there is statistical risk to a population if this policy isn't enforced.

The sofek is compounded by the fact that even proponents of this policy concede that social-distancing cannot stop the spread of this highly-contagious disease, and that ultimately the vast majority of the population will invariably contract the virus. Instead, they contend that the policy will arguably slow down the proliferation of cases in the short-term, thereby ensuring ample hospital beds and ventilators for patients who need them most. [This contention is dubious for the simple reason that nearly 90% of patients who were put on ventilators succumbed to the disease, so the question remains whether the so-called "flatten-the-curve" policy succeeded in saving any lives.

Apparently, there are rabbis who see this statistical risk as sufficient grounds to prohibit all tefilo b'tzibur and limud haTorah b'rabim, and to shut down schools and yeshivos, even though the virus poses an infinitesimally-small risk to children and young adults. To most teachers in their 20s, 30s and 40s and in good health, the risk isn't numerically significant either. Yet these rabbis shut down the school back in mid-March, even before public schools were closed! In fact, certain rabbis insisted on banning porch minyanim too, even though it was allowed by Dept of Health/CDC guidelines, under the extreme principle of lo plug (i.e. the risk was allegedly so severe, the rabbis refused to allow any exceptions).

Furthermore, even now as the Dept of Health has eased restrictions, many rabbis are still adamant in being more strict and continuing to ban minyanim in their communities!

[This is fascinating in and of itself, since last year, when 10,000 Jewish children were banned from school due to halachically-unjust reasons, these rabbis claimed that we have no choice but to obey the Dept of Health, and did NOT insist on examining the actual risk-factor themselves].

This is startling given the fact that plenty of doctors and scientists were opposed to the entire rationale of social-distancing to begin with. Yet the rabbis ignored these experts' view and instead deferred to the opinions of doctors who were endorsed by the mainstream, i.e. the CDC and Dept of Health. Yet now, as these same doctors have recommended easing restrictions, some rabbis insist on being "holier than the pope," or more concerned about "public health" than the public health experts themselves.

Some rabbis cited the halacha: "If there is a plague in the city... one should hide himself in secrecy and shouldn't appear in the marketplace."[6] The problem here is this current virus doesn't fit the halachic description of a plague, which requires a mortality rate of .3% from an entire population within three days![7] In NY, the alleged mortality rate was barely .1% over the period of two months! Some might suggest that this virus might not it into the rubric of a plague (dever), but is nonetheless considered a public calamity due to contagious disease that doesn't require such a high death rate in such a short time [8], and in which case halacha obliges parents to evacuate their children from the city.[9] 'Evacuating children from the city' is akin to keeping them away from public exposure, they reason.

This is a rather weak argument, since in that case, the children were at serious risk from dying from the illness, whereas in our case the disease poses no risk to children. If anything, this is a sound rationale to require elderly and immunocompromised to isolate and stay away from the public, or from anyone who is not isolating. It does NOT require children, young adults, or anyone else who is not in significant risk, to isolate.

[Parenthetically, some Chabad rabbis and mashpiim pointed to a law concerning disposing of one's fingernails, which are said to be hazardous for pregnant women: "One who burns them is pious...,"[10] implying that a chassid takes extreme precautionary measures to protect someone else from potential harm. Of course, this suggestion is absurd. Limud haTorah and tefila b'tzibur aren't fingernail cuttings.]

It is an extreme stretch to apply the rationale of 'pikuach nefesh' to shutting down shuls, yeshivos, banning tefila b'tzibur, and dubbing them as "non-essential" activities, all while other business which these same rabbis have seemingly accepted as "essential," like liquor stores and coffee shops, remain open. "Do not stand over your brother's blood" cannot be cavalierly cited as a pretense to ban public prayer based on a s'fek s'fek s'feiko or on statistical models for an entire population, or even just the advice of secular "public health policy" officials or their particular doctors, unless a competent posek is ready to take responsibility for such an unprecedented psak. These are all bold assumptions that require a source and/or precedent in Jewish law. As of this writing, I have found no such source, nor have I found any competent posek who has been willing to put such an extraordinary psak into writing.

Strangely, the letters from the Crown Heights Beis Din that banned tefila b'tzibur and the shutting down of yeshivos and schools, etc., bore no signatures from any of the members of the Beis Din. The letters claimed that it wasn't possible to obtain signatures due to the urgency of the matter, but nearly two months elapsed since then and still not a single authoritative signature! This is truly shocking and unbelievable. As such, there is no reason to believe that the Beis Din ever issued such a psak in the first place. Rather, it seems to have been a policy that the community leadership insisted on implementing, with or without rabbinic imprimatur.

Can it be that the Jewish body and soul are under attack?
Are we experiencing an assault on Judaism? Have our rabbis been co-opted into silence or collaboration?
Is 'social distancing' a thinly-veiled attempt at distancing us from our Father in heaven? 

[Click here for Part II]


[1] It is difficult to estimate actual mortality rate since current figures only include diagnosed cases who tested positive, and it is assumed that there are innumerably more people infected who never presented symptoms. Furthermore, the mortality rate allegedly includes many deaths that were dubiously identified as COVID deaths without definitive proof that the virus was indeed the cause of death. [2] Shulchan Aruch Harav Orach Chayim 316:23.
[3] Ibid 330:1.
[4] Leviticus 19:16.
[5] See my blog post on this topic with regards to bodily autonomy vis-a-vis last year's measles outbreak.
[6] See Bava Kama 60b. Shulchan Aruch haRav Hilchos Shmiras Guf vNefesh, 13.
7] See Shulchan Aruch Orach Chayim 576:2. [8] Ibid 576:5, Ramo.
[9] Magen Avraham ibid 3. Note that he specifies "pox that afflict the young children" (אבעבועות הפורחין בתינוקות), which the Pri Megadim (Eishel Avrohom) defines as measles and small pox.
[10] Nidah 17a, Shulchan Aruch HaRav, Orach Chaim 260:4. "One who burns them is pious. Who who buries them is (minimally) righteous, and one who throws them away (to where one might later step on them) is wicked.
[11] Acknowledgment to Rabbi Daniel Green of Brooklyn, NY, for assistance with some of the points of this article.


Chaim Yitzchok Vogel said...

what about the fact that Hatzala has had no less then 10 times the amount of calls in that period and many of the frum community died during these months? I don't know if there is a history of that, what I would advocate for is for everyone to use Zelenkos medecine

Rabbi Green said...

Of course there's a history of that. Look in Shulchan Oruch Orach Chaim 576:2. Historic plagues had incomparably higher death tolls. Corona isn't considered a plague by halachic criteria. I agree that some social distancing was called for, and that people at highest risk should strictly isolate. Zelenkos' medicine sounds like a good idea.

Anonymous said...

The take away to the coronavirus from the distinction between the spider and the childbirth seems a bit inconsistent. The remark you made was that the childbirth is a present threat while the spider is just a potential threat. Wouldnt you consider this coronavirus a present occurrence? I mean honestly, how much more of an "occurring" epidemic can it be?

Chaim Yitzchok Vogel said...

There was 350 Frum doctors signing a joint letter to ban minyanim, we should advocate that they band together, to go against the grain and save lives, by advocating Zelenko and decrying the total shutdown, no?

Rabbi Green said...

Dear Anonymous:
I meant that the birthing mother is presently experiencing a condition which can result in fatality in some cases, even if in fewer than .1% of patients. A healthy person currently has NO condition, even if there is a present outbreak of a contagious disease in his vicinity. Likewise, there is surely a spider present i.e. crawling around), but it may or may not fall into YOUR food. The risk exists in potentia but not in present actuality for you. Likewise with regards to covid-19 for a healthy person. This is not to say that precaution isn't in order, but it clearly doesn't rise to the level that justifies banning all tefila b'tzibur, limud haTorah b'asara, bitul torasan shel tashbar, etc. If it did, it would presumably be strictly forbidden to leave your house altogether, which is clearly not the case here.

Rabbi Green said...

R' Chaim Yitzchok Vogel, yes, we should certainly advocate that. It must be said, though, that 350 frum doctors' opinion is largely irrelevant with regards to halacha. R' Chaim Brisker said "vrapo yrape -- mikan shenitan rshus lrofeh lrapos." Doctors have jurisdiction to heal, and davka to heal a specific patient with a specific refuah (i.e. not a blanket medical policy), but NOT necessarily with regard to prevention. Doctors may express their view-- they have a vote but not a veto. Halacha conforms to higher values that doctors (jewish, frum, or otherwise) often do not grasp.

Anonymous said...

The perplexing thing is that there are many doctors and scientists, as well as epidemiologists and infectious disease experts who were against the shut-down from the beginning. More and more are joining to advocate for re-opening. It seems like the majority of non-Governmental experts have this position.

So why are Rabbonim ignoring all these experts and only relying on the same old frum "expert" doctors who follow the CDC and not many doctors and experts who evaluate the merits of the situation? Since when do Rabbonim select which expert to follow and how can they dictate which experts other can follow?

Anonymous said...

That is a good question and explains why there is growing distrust and lack of respect for these Rabbis , people are are growing more and more suspicious and questioning their true motives when they give directives. One such person is a particular Rabbi in CH.