Beyond Pikuach Nefesh

We need a new and different Torah conversation about COVID-19.

In the early stages of the pandemic, poskim were profusely praised for prioritizing public health over public ritual. Halakhic decisions were accompanied by fiery rhetoric about the primacy of lifesaving in halakhah. This hyperbole may have saved lives.

Perhaps it still would, if people followed its implications consistently. But that is not where we are as a community. Instead, the embers of that rhetoric are generating feelings of hypocrisy or despair, and a sense that halakhah is irrelevant to real-world problems.

If minimizing risk of death were really the Torah’s absolute priority, no Orthodox school would consider reopening this fall. Everyone frum would wear a mask everywhere, even when socially distanced outdoors (lest one forget to put it on when mixed dancing). No one frum would walk into a grocery store. We would unanimously support shutting our countries down, regardless of economic and other costs. Clearly, this is not our reality.

The truth is that saving lives is a profound value in halakhah, but not the only one, or even paramount. For example, the halakhic consensus is that a Jew must die rather than commit murder, idolatry, adultery, or public desecration of the Name of G-d.

Those are the simple cases, where the trade-off is immediate and the outcomes are clear. What does halakhah say when the trade-off is between physical and mental health (some have argued that teenagers, and children generally, are suffering from a silent epidemic owing to lack of physical connection with their friends)? Between mortality rates in the short-term, and life expectancy over the next 50 years (which realistically correlates with the nation’s economic condition)? Between quantity and quality of life?

Professor Ronald Heifetz of Harvard’s Kennedy School of Government distinguishes between an emergency and a crisis. An emergency exists in the moment; things will get worse if you do nothing, so you need to do something NOW, even if what you do cannot work in the long term. In a crisis, things may already be terrible, but they won’t get worse in the moment unless you do the wrong thing. You can play for time. In a crisis, it makes much more sense to weigh long-term consequences before acting.

Around Purim and Pesach, we treated the pandemic as an emergency. Maybe short-term reactions are still appropriate, perhaps because an effective permanent vaccine will emerge soon, or less virulent strains of the virus will begin to dominate. But I suggest that we will better understand the decisions we are making, and make better decisions going forward, if we think crisis rather than emergency.

Let me illustrate this distinction within halakhah and aggadah. A beraita cited on Berakhot 61b reads:

Once the evil empire decreed that the Jews should not engage in Torah (study). Papus ben Yehudah came and found Rabbi Akiva, who was engaging in Torah in public assemblies. He said: “Akiva, aren’t you afraid of the empire?” Rabbi Akiva replied: “I will give you a parable: to what is this similar? There was a fox walking along the riverbank, and it saw fish gathering from place to place.  The fox said to them: ‘From what are you fleeing?’  The fish said to him: ‘From the nets that human beings set for us.’ The fox replied: ‘Do you wish to come up to dry land, and we will dwell together as my ancestors dwelt with yours?’ The fish replied: ‘Are the one they call the smartest of animals?! You are not wise, but foolish! If we are terrified in the medium which keeps us alive, in the medium where we die, all the more so!’ So too we – now that we are settled engaging in Torah, in which it is written ‘for she is your life and the length of your days’ – yet it is so; if we go abandon it, all the more so!”

The public study of Torah is a positive commandment, and in any case bittul Torah is not listed among the “big three negative commandments” that one must die rather than commit.  So what justified Rabbi Akiva in sacrificing his life to teach Torah publicly?

Even if one holds like Tosafot, against Rambam, that martyrdom for other commandments is permitted, Talmud Torah may be an exception. Bava Kamma 61b quotes King David quoting the Prophet Samuel as follows: “Anyone who risks death for the sake of words of Torah – we do not state halakhic positions in their name”. Meshekh Chokhmah at the end of Parashat Terumah cites this as a prohibition.

Meshekh Chokhmah’s answer is that unlike private study, Talmud Torah derabbim – mass Torah study – justifies risking one’s own life, and that of all one’s students. I think Rabbi Akiva’s parable makes the rationale clear. Mass Torah study is an environmental prerequisite for sustaining a healthy Jewish community.

Sefer Chasidim (Margolies 995) describes a person who takes a dangerous route to yeshiva, when a short delay would mitigate the risk, as “the righteous destroyed by their righteousness” (Kohelet 7:15). I think this applies equally to a community.  But what if the delay would last a year, or mean the loss of one’s only realistic opportunity for full-time study? What if it means that an entire community’s learning will be curtailed for the year, or longer?

These vital questions require careful and nuanced balancing of legitimately competing values. Pikuach nefesh is a critical consideration. But it is not the only value.

The time has come to put away the hyperbole, and say openly: Since we don’t know how long the pandemic will last, we need to consider what risks are appropriate and necessary to sustain our community’s souls, and also our practical infrastructure.

We cannot write that “safety is our only concern”, or even that “safety is our paramount concern” – almost everything we do together as a community is riskier than not doing it. In-person school adds risk; in person shul adds risk. We still don’t even know enough about COVID-19 transmission, and about human behavior, to even evaluate risks reliably. The OU explicitly acknowledges this by allowing college students to attend JLIC events only if they sign a waiver of any claim to compensation for COVID-19 contracted at such events. If pikuach nefesh is the only value, why run the events at all?

A crisis is also an opportunity. The possibility that COVID is a long-term issue gives us the space and urgency to rethink the role of online education and online socializing, the ways in which our institutions are funded, how our communities can include people who are excluded from physical aspects of many of our core events (as the deaf have been excluded, and the high-risk – and those living together with the high-risk, including children – may be excluded from now). With the specter of mass unemployment looming, we must get vastly better at removing the economic barriers to entry and to full membership in our communities.

Any policies we develop will require profound communal buy-in to work. We live in a situation of literal areivut, in which every risk you take affects me, and vice versa. Shul can be run perfectly, but if one attendee plays indoor team basketball unmasked, or takes commercial flights for business, the risks escalate for everyone present. If I play tennis at outdoor public courts (I do), can I come to minyan?  If I attend one outdoor non-family burial (I did)?  Shul won’t run perfectly unless everyone is fully committed to making it run perfectly and knows exactly what that means, and is machmir about transparency.

We will get the necessary buy-in only if these vital values conversations take place openly and publicly, and ideally with the participation of the entire community. We need to explain convincingly why the risks of shul and school are necessary (within very clear limits), but the risk of basketball is unacceptable (at least without full transparency), and where singing, simchas, and shivas fit in that scheme.  We need to understand where we need absolute standardization, and where there is space for individualized decisionmaking; where transparency is utterly essential, and where privacy must be respected. Many of these decisions will require great subtlety and human sensitivity. All the subtlety and sensitivity in the world will be useless unless people are prepared to hear them with open minds and hearts.

In a crisis, there is time to consult, to discuss, and to empower. It may not feel that way; our rabbinic, professional, and lay leaders are legitimately overwhelmed by emergencies, such as the start of school and the Yamim Noraim. But we need to develop the education and infrastructure necessary for informed, thoughtful, Torah-based public discussion of the long-term issues and opportunities, so that we can move as a community from strength to even greater strength.