The Patient Protection and Affordable Care Act, informally known as “Obamacare,” was passed on strictest party lines in the House and the Senate. Opposition to the law sparked a popular movement that resulted in one of the greatest congressional election turnovers in American history. And while the recent Supreme Court ruling may clarify for a time the constitutional issues involved, the policy issues still remain without effective consensus.
As Jews and citizens of this country, we owe it to ourselves to consult the Torah’s wisdom on this topic. The Torah is built on all-inclusive principles that offer the possibility of establishing a real consensus. It transcends party lines, and concerns itself with our common citizenship under G‑d. From that viewpoint we can expect to find some leads, and perhaps even some answers, to the problems that confront our communities, both small and great.
By examining the issue from the standpoint of Torah, we are not investigating whether or not the U.S. government has the authority to pass such a law. From the standpoint of halachah (Jewish law), such a law of the land has the force of Jewish law behind it, for dina demalchuta dina (“the law of the land is law”). We must abide by this law, and if the majority were to repeal the act, we would be obligated to abide by its decision as well. Rather, our question is: What would Congress do if it guided its actions by the principles of Torah?
Before getting to the larger question of whether a community has the right to require its members to buy health insurance, we first have to establish what the Torah has to say about the most basic questions: Is seeking medical treatment contrary to G‑d’s will? And if it is not, what are our personal and societal responsibilities in this regard?
Obligation to seek healing
Shortly after Israel had crossed the Reed Sea in their exodus from Egypt, G‑d showed Moses how to perform a miracle and sweeten the brackish, undrinkable waters of Marah. After the event, G‑d said to Moses:
If you will truly listen to the voice of G‑d your G‑d, do that which is upright in His eyes, listen to His commandments and guard all His laws, then I will not afflict you with any of the sickness with which I afflicted Egypt, because I am G‑d, your Healer.
There are those who contend that since G‑d calls Himself “our Healer,” seeking medical help demonstrates a lack of faith. The truly pious person would entrust his health to G‑d’s care alone, and occupy himself by simply praying that he be healed. Indeed, whole religions have made this attitude a centerpiece of their belief system.
However, there are other verses in the Torah which most rabbis believe preclude us from taking such a stance.
The Torah decrees that one who injures another person’s body must pay five kinds of recompense. One type of payment he must make is for medical care:
If [the victim] should get up from his sickbed and walk about outside, even with a cane, then [the assailant] must pay him for the idle time, and to make sure he is healed (Heb., verapo yerapei).
The Talmud elaborates on this verse:
The School of Rabbi Ishmael taught: “Make sure he is healed” (verapo yerapei)—from this doubling of the verb, we learn that divine permission has been given to the doctor to heal.
Thus, the verse is telling us that if one caused injury to another person, he is required to pay the person’s medical expenses.
The Talmud adds that this payment is not to be given to the injured man, but rather to the physician, because there is a concern that in the victim’s desire to save money, he will not heal himself properly.
In their commentary, Tosafot explain that the permission given doctors to heal is sweeping in its scope:
Divine permission has been given—One might raise the question that this could have been learned, without the doubling, as the simple meaning of ‘healing.’ The answer would be that the simple meaning would cover only an injury caused by another human, but that we would still not have permission [to heal] illnesses and injuries coming from heaven, for it would seem as if we were contradicting the decree of the King. This doubling, therefore, teaches us that this is not so.
From the above, it is evident that the Torah permits us to receive medical treatment.
Whose life is it anyway?
Not only may we seek medical help when needed; we are required to do so. This is not just one law of many found in the Torah, but expresses a fundamental principle which underlies much of Torah thought.
In Genesis, G‑d sets down the terms under which human life will be conducted after the Flood. These principles have become known as the “Seven Noahide Laws,” the universal system of law which is meant to govern the entire world.
Near the end of this crucial section, G‑d says:
But for your own lifeblood I will require a reckoning.
This is understood to refer specifically to suicide. G‑d tells us that we may not kill ourselves.
This prohibition carries a powerful message: If a person is not free to end his own life, he is not sovereign over his physical being.
The idea that all life belongs to G‑d is found even more explicitly in the Prophets, where G‑d proclaims, “All lives are mine.”
This prophetic teaching finds legal expression in one of the commentaries to Maimonides’ law code:
A person’s life is not his or her own possession, but the possession of the blessed Holy One.
Accordingly, not only may one not impose physical harm on another person, but one may not harm someone even if that person himself asks to be hurt.
It is forbidden to strike one’s fellow. Even if he gives permission to strike him, no person has any such authority over his own body to have it struck.
G‑d has the title deed to our physical life, which gives Him the right to be heard. And since His desire is that we be alive and healthy, both suicide and self-injury are forbidden, though these two points do not mark the end of His concerns. This is expressed in general terms by the Talmudic dictum, Chamira sakanta me’isura—physical danger is a graver issue than mere prohibition.
Just as various prohibitions of the Torah mold our lives to the pattern that G‑d desires, even more so should consideration of the body’s health mold our lives. In this light, care of our health is a mandate from above, not an optional matter.
The Torah forbids us to destroy even an inanimate object, unless the destruction serves a useful, positive purpose. How much more so, then, must we preserve the body.
After Rabbah had let blood, they chopped up a footstool for firewood to warm him. Abbaye said to Rabbah: “But is the master not violating the prohibition of bal tashchit?”
Rabbah answered: “Bal tashchit applies even more to my body [than to the footstool].”
The above exchange appears in the Talmud in the middle of a discussion of when the Shabbat prohibitions are set aside for the sake of health and preservation of life. That preservation of life is set above even such an emblematic mitzvah as Shabbat observance is telling. Maimonides himself uses this as his first example of the mitzvah of kiddush Hashem, sanctification of G‑d’s name. Not only is health a matter of G‑dly concern, it is a matter of G‑dly concern at the highest level, trumping almost every other mitzvah if their observances should clash. If the concern for the preservation of life is so important as to override even G‑d’s other concerns, it is certainly something that must override our far less authoritative desires, and be considered mandatory.
Maimonides points to other verses in the Torah where the obligation to preserve life and health is found:
It is a positive Torah command to remove any stumbling block that poses a danger to life, to be watchful of it and be extremely careful of it, as it is said: “Be very careful and guard your life (nafshecha).”
Similarly, the phrase “Guard your souls (lenafshoteichem) very carefully” is read as referring to the mitzvah to guard one’s life and health.
For this reason, the Talmud tells us that one should not live in a city that does not have a physician as well as other health amenities:
A scholar is forbidden to live in any town that does not have these ten things: a court, a charity fund, a synagogue, a bathhouse, a latrine, a doctor, a bloodletter, a scribe, a kosher butcher and a teacher of children.
Of these ten necessities, at least five are associated with health: the doctor, the bloodletter (bloodletting was considered an indispensable part of healthcare), the bathhouse and the latrine for hygiene, and the local kosher butcher for fresh meat in the days before refrigeration.
Maimonides quotes this Talmudic dictum verbatim, and sets it as law in his Mishneh Torah. In the same section of laws, he also makes a broad statement which sums up the importance of maintaining one’s health:
Since maintaining a healthy and sound body is among the ways of G‑d—for one cannot understand or have any knowledge of the Creator, if he is ill—therefore, he must avoid that which harms the body and accustom himself to that which is healthful and helps the body become stronger.
Am I my brother’s keeper?
It is clear that Jewish law makes maintaining our health a mitzvah of great importance. But to address the political issue of health care, we need to raise a further question: Am I obligated to heal others or help them care for their health?
The short answer, it would seem, is yes. The Torah commands us explicitly: “Do not stand idly by your neighbor’s blood,” and the Talmud points to additional places in the Torah from which we can derive the same obligation. The Talmud goes on to explain the need for the multiple sources:
From where do we know that if one sees one’s fellow drowning in a river, or a wild beast ravaging him, or bandits coming to attack him, that he is obliged to save him? Scripture states: “Do not stand idly by your neighbor’s blood,” but rather save him from death.
But is it indeed from here that this law is derived? Surely not! The law is derived from a verse in this other place. The Torah clearly states that a lost object must be returned to its owner, but from where do we know that we must return a lost body, i.e., that if the life of a fellow Jew is in danger, there is an obligation to save him? Scripture states: “And then return it to him.”
Now, if this verse teaches that one must save his fellow’s life, then why would the verse “Do not stand idly by your neighbor’s blood” be teaching the same thing?
If we had learned this law from there, then I would have said that the obligation is only when he himself can save his fellow’s life; but if he could only save his life by hiring a rescuer, then I would say that one is not required to do so.
Therefore, this verse, “Do not stand idly by your neighbor’s blood,” comes to teach us that he must even hire someone to rescue someone in danger.
In short, the additional verse “Do not stand idly by” adds to what has already been taught by the verse about returning lost objects. The Torah obliges us not only to strive ourselves to protect another person’s body—to “return it” to him if it is in danger—but also requires us to spend money to achieve that aim.
While we are obligated to spend money to help another preserve his life, he is not absolved from his responsibility to preserve himself. The Code of Jewish Law sets out the obligations of the various parties:
One who sees his fellow drowning in the sea or being set upon by gangsters—if he can save him personally or by hiring others to save him, then he is obligated to go to the trouble to hire people to save him. He may afterwards require reimbursement for his expenses, if [the one saved] has the money. If not, he should nonetheless not refrain from saving; if he does refrain, he is guilty of violating the prohibition of “Do not stand idly by your neighbor’s blood.”
Here we see that the one in need of our help is still obliged to guard his own health, and must reimburse us for expenses we incur on his behalf. It is only if he cannot repay, even when he has recovered, that the responsibility devolves onto others.
Having ascertained that we are responsible for the health of others, the question arises whether the mitzvah that obliges us to save another obliges us as individuals, or only as a group. In other words, is the responsibility to help others primarily a personal obligation, or is it primarily societal?
To answer this, we will examine the case of a doctor who asked a rabbi if he was obligated to provide free medical care for everyone who walked in his door, whether they could pay or not. He is specially qualified to heal. Is he required to devote his healing powers for the good of the community, and bear the burden of the cost himself?
Obviously, we cannot set our doctors an impossible task. But there is a legal reason as well to relieve them of such an overwhelming burden: the obligation not to stand idly by someone’s blood devolves on everyone equally, not just on doctors. Although not everyone can heal directly, most can contribute monetarily, and as we saw, this is a mitzvah that may require us to expend some of our wealth. Here we shall see how many of the factors we have mentioned are at work, either explicitly or implicitly:
If there is more than one doctor in a place, then it is impossible to cast the burden of providing medical care without fee on one doctor more than on another . . .
Accordingly, the right thing to do is either for the congregation to pay the fee from tzedakah funds, or to take up a collection for the required amount, or for the congregation and its beit din (rabbinical court) to set up a rotation during which each doctor will cover for free according to the need, each in his turn. And when the congregation has greater ability, the best way is for it to set up a set monthly wage for a doctor who will take on, at no charge, the poor of the congregation, who will come with documentation identifying them . . .
And how good and fine are those sick-care funds, in their widely varying sorts, which we have here in our Holy Land. They symbolize in a united way the three great traits by which our people are distinguished and by which we are identified: compassion, humility and practical benevolence.
Just as healthcare is not the exclusive burden of the physician, so too is it not the burden of a specific group or class. Nowhere is there a suggestion in Jewish sources that healthcare costs should be borne by employers alone. Although Jewish law allows employers and employees to make the terms of their own agreements, it does not wish to weight the marketplace with concerns that belong no less to everyone else in the community. This obligation of the community comes in addition to the responsibility the Torah places on each person to provide for his or her own health needs.
My life, my choice?
Granted that under normal circumstances we are obligated to help someone who, despite a good-faith effort, is simply unable to deal with his medical care. But what about someone who willingly ignores his own health obligation? What about someone who says, “I want to die; don’t try to save me?” Are we responsible for someone who is not responsible for himself?
While there are those who raise the possibility that we would not be required to save one who does not wish to be saved, the overwhelming majority of halachic codifiers are of the strong opinion that we are obligated to try to help people even if they themselves do not wish to be helped. Most follow the idea set down by R. Schneur Zalman of Liadi that we cited earlier:
It is forbidden to strike one’s fellow. Even if he gives permission to strike him, no person has any such authority over his own body to have it struck.
The principle is that our bodies belong to G‑d. That is why one cannot strike another, even with his permission. And that is why, even in the case in which someone has been negligent about his own health and brought harm upon himself, we are not only required to save him, but we are required to do so even if it necessitates the desecration of the Sabbath.
The Torah requires more of us in the preservation of human life than in the preservation of possessions (such as the case of the fallen donkey). Therefore, the communal obligation to help remains, even for an individual who has brought his difficulties upon himself. As we saw before, however, the individual must fulfill his obligation to help himself before the community’s obligation to help takes effect. Therefore, his own lack of concern does not relieve him of his responsibility to pay for his rescue, as we see from a similar case:
If a stingy rich man starves himself, even though we should feel no charity obligation towards him, and we allow him to go about in his foolishness, it seems to me that if he becomes ill from his hunger, we do feed him and force him to pay.
Commenting on the verse “Cast your burdens on G‑d; He will sustain you; He will never allow the righteous to stumble,” one of the great Jewish philosophers writes:
If one does not trust in G‑d, then one is trusting in something else. And one who trusts in something other than G‑d removes G‑d’s protective governance from himself, and is abandoned to the thing in which he put his trust.
In the light of this powerful principle, some rabbis ask the following question: Does insurance in all its forms not represent a lack of trust in G‑d? The prophet Jeremiah said: “Cursed is the man who puts his trust in man, making flesh his might, and pulls back his heart from G‑d.” If so, when I place my trust in the insurance company, does this demonstrate a lack of faith in the Holy One?
Although it is a cardinal principle in Judaism that G‑d provides for all His creatures—“You open Your hand and satisfy the desires of every living thing”—the work a human does is still considered essential. The Midrash describes how these two ideas fit together:
“G‑d will bless you in all that you do”—you might think this would be so even if one were to sit and do nothing. Therefore the text adds, “. . . in all that you do.”
This is the view of a partnership: G‑d provides for us as part of a joint endeavor, in which both of us have our responsibilities. Just as in a human partnership each must contribute his share for the venture to be successful, so too in the larger picture: we may expect G‑d’s blessing when we ourselves are working to the best of our ability.
Working to the best of our ability usually entails using tools. The tools we devise to aid us in our work are one of the most distinctive aspects of human culture. Jewish law considers these tools so essential that a workman who is compelled to liquidate his possessions to pay off a delinquent debt is not compelled to sell his tools.
The more abstract tools that human ingenuity devises are also important. Modes of financing, contracts, and the like are all allowed and even encouraged, as long as they follow the Torah’s rules governing commerce.
In some cases, halachah even requires participation in such an instrument. In early texts we are taught of arrangements in which people pool their resources and share risk. A classic case is that of the donkey drivers:
Donkey drivers can say that whenever someone’s donkey dies, all will collectively buy him a new donkey.
The donkey drivers were allowed to create an industry-wide donkey insurance, so that anyone whose donkey died would be able to stay in business. Jewish law rules that all donkey drivers could be compelled to participate in this system.
Not everyone drives a donkey, but most get married. The ketubah, the marriage contract required by Jewish law, is a kind of marriage insurance. It provides for the wife in the event of the dissolution of the marriage in her lifetime, due to divorce or her husband’s death. This financial provision for the future—and for an event that may not even happen—is not only allowed, but mandated.
In this reading, a great modern rabbi addresses the issue of insurance directly:
Regarding the question of whether there is any worry that it is forbidden to take out an insurance policy, as it might constitute (G‑d forbid) a lack of faith in G‑d . . . In my humble opinion, there is not a bit of lack of faith in G‑d in this, for it is like any other business matter in which a person is not only allowed, but required, to engage in commerce and work for his livelihood, and it is forbidden for him to say, “Even if I do nothing, G‑d will sustain me in some way.”
Contemporary rabbis concurred with this view, and this is considered the accepted view in halachah.
Individual mandate—entitlement vs. freedom vs. responsibility
We can see from the above cases that insurance is allowed, and might even be required, just as one is required to engage in some activity to secure a livelihood.
Could it be possible, then, that health insurance could be required too?
To approach this question, let’s look at a source that requires us not to be a burden on others. It is found among the laws governing charity. Even though charity is one of the greatest mitzvahs, and one should strive to give beyond the minimum requirements, the law still sets a limit on charitable giving, and specifies a telling reason for doing so. In the words of Maimonides:
A person should never consecrate or devote all of his possessions. He who does the reverse acts contrary to the intention of Scripture . . . Such an act is not piety but folly, since he forfeits all his valuables and makes himself dependent upon other people, who may show no pity to him.
In a similar vein, Maimonides writes in another section of his law code:
A man should always exert himself, and should sooner endure hardship than throw himself as a dependent on the community. The sages admonished: “Make your Shabbat a weekday rather than become dependent.” Even one who is learned and honored should, if impoverished, work at various trades, even very lowly ones, rather than accept dependency.
We can see that we are commanded not to allow ourselves to become a financial burden on the community. This is not confined to just one situation, but operates as a general principle. How can we apply this principle to the immense expenses of catastrophic medical care?
For many people, the answer to that question is health insurance. Some could satisfy this obligation to not be a burden by self-insurance, though with the expense of catastrophic medical care so high, only the very wealthiest could cover all medical costs from their own deep pockets. Some may not be able to afford insurance at all. But most cannot avoid becoming a burden without buying insurance to cover the risk.
Having outlined the Torah’s view on healthcare, we can now turn to the current political debate.
Today’s political argument frames healthcare as a right and an entitlement on one side, and as a free choice on the other.
The supporters of a mandate argue that everyone deserves healthcare, and everyone who can afford to pay for it must do so. Therefore, they argue, all are mandated to be a part of the insurance pool that will do the paying.
The opponents argue that a mandate violates an individual’s freedom to buy or not to buy a product on the open market, in this case insurance, as he sees fit.
As we have seen, the Torah frames this question somewhat differently. The issues from the Torah’s perspective are the individual’s responsibility to care for the body with which G‑d entrusted him, and his responsibility not to be a burden to his community.
To illustrate, let’s take the case of coverage of pre-existing conditions. The law requires insurance companies to provide coverage to those with pre-existing conditions, something they try to avoid because of the cost. Backers of a mandate say that since all are entitled to medical care, we must cover the cost of those with greater healthcare needs by forcing everyone, even those who are healthy, to buy insurance. The young and healthy may not need the care now, but they will need it in the future, and of course they also must protect themselves from the risk of catastrophic expense.
Opponents of the mandate say that forcing everyone to buy insurance violates our freedom. Free competition will draw purchasers to the insurance policy that offers the best deal, and the exceptional cases can be dealt with compassionately as exceptions, and not as the basis for rules that restrict everyone.
Torah law would not allow us to deny treatment to someone who did not buy insurance when he became ill, because we are obligated to care for everyone, even the negligent. But those who could have provided for their medical needs by insurance, but did not, can be required to pay back the expenses they made us incur.
Thus we can see the outlines of the Torah’s approach to a mandate. One is free to buy insurance, self-insure or indemnify one’s future in order to fulfill the obligation not to burden others. And through a different obligation, one is responsible for caring for others, even if they were negligent. However, this is never a pure entitlement: those who were negligent remain under the responsibility to reimburse their providers.
Granted that the prime responsibility is the individual’s, however, the Torah does allow a majority in the community to address this problem by exercising its power through law to mandate participation.
Rabbi Sholomo ben Aderet (Rashba), one of the great medieval Spanish rabbis, sums up what the Talmud has to say about a community’s power:
A community can restrict, enact laws, and make agreements as they see fit. These have the strength of Torah laws. They can fine and punish anyone who violates any of their collective agreements . . .
The community is indeed empowered to make such a law. But just because the community is empowered to make laws doesn’t mean that any specific law should be made. The rightness of providing for our own medical needs is already established by the Torah, as is the justice of caring for the lives of our fellows. Rashba teaches us that the community may then take such steps as it sees advisable to make the established good actualized in the lives of its members. The community is not precluded in Jewish law from mandating our participation in funding healthcare.
There seem, then, to be two possibilities open. The community has the power to cover this by requiring payment in advance; or it could allow it to remain optional, but emphasize the crucial power of the individual’s buy-in by saying, “You may choose as you wish, but you will be responsible to pay back the community for costs they will incur on your behalf.”
Jewish law sees economics as part of life, and the same law that rules all other aspects of our lives rules there too. Governments do have the power to intervene proactively, just as they are required to intervene reactively. That is, just as the community will be called upon under Jewish law to care for the person who was negligent of his health, it could actively require that person in advance not to be negligent. Just as Jewish law requires a person to work and not depend on others for a living, so too can it require a person to be responsible and participate in an insurance pool, unless he is wealthy enough to pay even catastrophic medical costs out of pocket.