Sharon Galper Grossman and Shamai Grossman
On January 20, 2020, their children sent them on a Diamond Princess cruise as a gift. But on February 1, their holiday turned into a nightmare when a fellow passenger tested positive for coronavirus after he got off the boat. Then, on February 5th several more passengers tested positive, and were taken off the boat. The crew quarantined the remaining 3,700 passengers in their rooms for two weeks, while the ship docked in Yokohama, Japan. They described quarantine on the boat as harrowing, comparing it to a jail cell: “[we couldn’t] walk more than six feet in any direction.” They were in the least expensive room, measuring about 160 feet, the size of a shipping container; their room had no window or balcony, and space only for a queen bed. “We were basically treated like we’re prisoners and criminals,” commented a fellow passenger. They were frightened by the crew guarding the public areas to make sure that passengers didn’t leave their rooms, and worried about staff wearing the same pair of gloves to deliver food to dozens of cabins at a time, door-to-door and face-to-face with passengers, wondering if this could be a source of infection.[1]
On February 9, unbeknownst to them, fourteen of the infected passengers from the cruise ship were sent to the U.S. on a plane with 300 presumably uninfected individuals for the eleven-hour flight. These infected passengers did not wear masks when eating, and showed “little consideration for infecting their fellow passengers.”[2]
Public health officials now criticize the decision to quarantine the passengers on the cruise ship, stating that such ships are incubators for viruses and dangerous places for quarantine. In their view, the decision “basically trapped a bunch of people in a large container with [the] virus… to ‘quarantine’ yet generated active transmission.” They argue that the uninfected passengers should have been allowed to disembark and undergo quarantine in a medical facility with equipment, supplies, and healthcare workers trained in preventing spread of a highly contagious, potentially lethal virus, instead of relying on waiters to fill this role.
Ultimately, seven hundred and twelve people from the ship contracted the virus, including a quarantine officer who boarded the ship. Thirteen died. Modelling data indicates that the ship conditions clearly amplified “an already highly transmissible disease.” Evacuating all of the passengers and crew early in the outbreak would have limited the number of infected to 76.[3] Yet, even the suboptimal public health measures prevented more than 2,200 additional cases.
In response to the alarming spread of COVID-19, somes governments have mandated social distancing, prohibiting all public gatherings, restricting trips outside the home to the purchase of food and medicine, and limiting all other outings to a distance of 100 meters from the home. Many of these restrictions have been lifted over the last few days as the number of infected has stabilized.
For coronavirus, the danger that one infected individual poses can be enormous. A critical care expert has estimated that one infected person will infect three people each of whom will transmit the virus to three more people; after ten cycles, the original infected person will have infected 59,000 people.[4] Lessons learned from the 1918 Spanish flu demonstrate that social distancing and self-quarantine help slow down the rate of infection and “flatten the curve.”; similarly, cities today that instituted swift, early, comprehensive, non-pharmacological interventions have sustained lower death rates than did those that delayed their response and did not enforce such rules.[5]
However, quarantine and social distancing come at a price. In order to enforce them, governments have implemented coercive measures including substantial fines and imprisonment.[6],[7] Of greater concern, quarantine, even when done correctly, can cause psychological distress and contributes to post-traumatic stress, especially when people must deal with extended duration, fear of infection, frustration, boredom, inadequate supplies, insufficient information, financial loss, and stigma.[8] Quarantine has already caused an unprecedented one million Israelis to lose their jobs.
In light of the current efforts to enforce social distancing and quarantine, it behoves us to determine how Halakhah approaches quarantine. As the Beit Hillel organization has written, “Halakhically speaking the risk of mass pikuah nefesh makes it imperative to employ all current guidelines, … people who might be harboring the virus are (required to) quarantine and frequently sanitize the objects around them. Adhering closely to these guidelines will help prevent widespread contagion.”[9]
Articulating the position of many other halakhic authorities, Beit Hillel has classified quarantine and social distancing as pikuah nefesh, the value of saving a human life, overriding all other mitzvot. Thus, those in quarantine were prohibited from going to shul to hear the Megillah. Praying with a minyan has been suspended, women in quarantine may not immerse in the mikvah, and families of the deceased have been told to stay home and not participate in the mitzvah of burial.
However, when asked about the permissibility of autopsies, Noda be-Yehudah Yoreh Deah 210 limited the application of pikuah nefesh to a situation when the sick person is lefanenu, standing before us:
all this applies when we have before us a case of uncertain danger to life; e.g., a sick patient or a collapsed wall… But in the case under discussion, there is no patient that needs this [now]. The only reason they wish to acquire this knowledge is that perhaps there will be a patient who will need it. We may certainly not set aside a Torah prohibition or even a rabbinic prohibition because of this unlikely concern.
Further, Hatam Sofer Yoreh Deah 336 offers the following definition of holeh lefanenu: “According to this, if there were before us a patient with a similar disease, and we would wish to perform an autopsy on the corpse in order to cure the patient, it would almost certainly be permissible.”
Yoma 85b derives the principle that pikuah nefesh overrides all other mitzvot from the verse, “you shall keep My statutes and My ordinances, which a person shall do and live by them” (Leviticus 18:5). Shmuel explains, “that he shall live by them, and not that he shall die by them.” Thus Shulhan Arukh Orah Hayyim 328:2 writes, “it is a religious precept to desecrate the Sabbath for any person afflicted with an illness that might prove dangerous; he who is zealous is praiseworthy, while he who asks questions sheds blood.” Yet, Noda be-Yehudah suggests that one may only violate Shabbat for a sick person who is before us, but not for a potential sick person who might appear in the future. In the current corona epidemic, quarantine and social distancing are not implemented to treat a sick person lefanenu. Neither our couple travelling on The Diamond Princess nor their fellow passengers whom quarantine is intended to protect has contracted coronavirus. Both parties are presumably still healthy. How then does quarantine qualify as pikuah nefesh and override the performance of mitzvot?
R. Yaakov Ettlinger in Binyan Tziyon 137 proposes different criteria for defining pikuah nefesh, which further challenge the classification of quarantine as a lifesaving intervention. “With respect to pikuah nefesh, we do not follow the majority, this is only when there is a certain danger to life before us; e.g., where a building collapsed. In such a case, we are fearful about even the smallest minority. But when presently there is no pikuah nefesh, but only fear regarding some future danger, then we follow the majority.” Following R. Ettlinger’s logic, when a potentially uninfected individual leaves the comfort of his home to go to minyan or a woman goes to the mikvah during this epidemic, neither they nor those around them are in immediate danger, and therefore perhaps we should follow the majority. Because these actions do not immediately lead to illness and there is no holeh lefanenu, a sick person before us, how can quarantine and social distancing as well qualify as pikuah nefesh?
Halakhah not only permits, but even obligates, neglecting or violating a mitzvah for the sake of pikuah nefesh. In other words, when faced with a choice between performing a mitzvah that will endanger oneself or others, or saving someone in a life-threatening situation (pikuah nefesh) that might prevent the performance of a mitzvah, Halakhah obligates the performance of pikuah nefesh at the expense of the mitzvah.
In order to discern whether Noda be-Yehudah’s definition of holeh lefanenu is applicable to pandemics, we need to more accurately define what is a patient with a similar disease before us? Hazon Ish (Ohalot 22:32) argues that the requirement of a sick person lefanenu applies to a disease that is uncommon. However, for a disease that is common, the sick person is considered lefanenu even if he is not actually in front of us. Thus, Nishmat Avraham Yoreh Deah 349:2, quoting Rav Shlomo Zalman Auerbach, explains that the requirement that the patient who might benefit from the autopsy must be present only applies to situations where the disease in question is rare. However, for a disease that is prevalent – and certainly for a disease that is rampant – a similar patient most certainly is present elsewhere and considered lefanenu, even if the patient is not actually present. With almost 4,000,000 cases of coronavirus worldwide as of this writing, coronavirus is highly prevalent, ubiquitous, and therefore considered lefanenu.
Strengthening this conclusion, Mishpetei Uziel Yoreh Deah 1:28 extends the definition of “a sick person before us” to include not only patients who are currently present but also those who will arrive in the not-too-distant future. Rav Uziel explains that even if the sick person is not here right now, “Is it possible that he won’t arrive later? Most certainly there are always a few patients with the same illness and if they are not before us now, then they will appear tomorrow or the day after.”
Applying Rav Uziel’s definition of holeh lefanenu to quarantine for coronavirus, while a woman under quarantine who visits the mikvah, for example, is not currently infected, nor are the other women who are there during her visit, one almost certainly will become infected in the not-too-distant future. These future potentially-infected women arguably qualify as lefanenu. In addition, in contrast with many other poskim, Rav Uziel permits autopsy even when the sick individual is not lefanenu, as this loss of information will compromise the outcome of other patients. One may extend this argument to quarantine: if the individual does not adhere to quarantine, he will most certainly infect others later.
Thus, in Piskei Corona #15, “Triage in Medical Decisions,” Rav Hershel Schachter extends the definition of lefanenu to include patients who have not yet arrived in the hospital but are expected to appear before us shortly. He rules that if an elderly individual appears in the emergency department with coronavirus and requires a ventilator, one may withhold the ventilator and save it for a younger, more viable patient who has not yet arrived, since we know that several younger patients who are more likely to survive will arrive in the next few hours. Rav Asher Weiss has recently offered a similar ruling.[10]
Another possible explanation for why quarantine would be considered pikuah nefesh even though there is no sick person lefanenu is that we are in the midst of an epidemic. Thus, Sefer Hasidim 451 permits an autopsy during an epidemic, as does Hazon Ish Yoreh Deah 208:7, to save others who might otherwise die of the illness. When the safety of the public is compromised perhaps the requirement of holeh lefanenu is suspended.
Perhaps the most compelling reason that Halakhah classifies quarantine as pikuah nefesh is that in issues of public health, we define pikuah nefesh and holeh lefanenu in the broadest terms. Shabbat 42a teaches, “Shmuel said: One may extinguish a lump of fiery metal in the public domain, so that no injury should come to the public.” Ramban explains that “perhaps according to Shmuel, all [potential] injury to the public is considered like a danger to life.”[11] Thus, according to Shmuel, public safety overrides the prohibition against extinguishing a burning piece of metal.
Lest we think that Ramban is relegated to the realm of halakhic theory, in his teshuvah regarding the permissibility of waging a war purely for economic gain or political benefit, Rav Shaul Yisraeli cites this analysis of the Gemara to define pikuah nefesh in the broadest terms.[12] He writes, “it seems that this is based on the idea that whatever concerns public welfare or removal of hazards, it is all regarded as pikuah nefesh. For everything connected to public welfare including the economy has an indirect element of pikuah nefesh.” Rav Yisraeli reasons that when dealing with issues related to danger to an individual, the likelihood of a specific behavior causing harm is low. However, when dealing with issues that threaten public safety, we know with certainty that at least one individual will suffer life-threatening harm.
Why might we define pikuah nefesh broadly when addressing public safety? One answer is that when dealing with issues of public safety, the laws of probability dictate that if a large enough population is at risk, the danger will place at least one individual in a situation of pikuah nefesh. Rav Shlomo Zalman Auerbach explains we define pikuah nefesh in this way as the entire community is at risk. When asked if a soldier may decode enemy communications on Shabbat, he ruled that the soldier must decode all the messages, for they deal with matters relevant to national security, even though the same degree of danger in the case of a private person would not be regarded as pikuah nefesh.[13] Similarly, regarding inoculation, Rav Auerbach said, “the issue was one of danger to the lives of many… where many lives are concerned, we worry about very rare situations.” When considering the public health of the entire community, where there is safek pikuah nefesh de-rabbim, the level of risk requiring vaccination might be significantly lower than that which is necessary to obligate an individual.
Rav Goren proposes that government responsibility justifies and necessitates a broad definition of pikuah nefesh for issues of public safety. He writes, “the position of the Noda be-ehudah and the Hatam Sofer is correct and applicable from a halakhic perspective, but only when we are talking about Jewish doctors in the Diaspora, who bear no responsibility for the health of the people in the country…However, when we are dealing with an independent Jewish state, where the government of Israel is responsible to design a medical system in the country for all its citizens, this national responsibility does not express itself in the daily individual planning of medical services in Israel, but rather in overall long-term responsibility.” (Rav Shlomo Goren, Torat ha-Refuah, 80)
In Israel, the government is responsible for the welfare of millions of citizens. This added responsibility necessitates the broadest definition of pikuah nefesh to include not just those who are already infected but to plan for future patients and create long-term strategies which prevent future remote dangers that might threaten public safety. Thus, a government-issued quarantine qualifies as pikuah nefesh overriding the performance of mitzvot. One might extrapolate to the reality of medical care in the USA and elsewhere today where all physicians could be considered agents of their respective states during this epidemic.
The evolution of holeh lefanenu in Halakhah has shaped the position of contemporary rabbinic decisors facing difficult ethical questions regarding coronavirus. Rav Asher Weiss has unequivocally defined quarantine and social distancing as pikuah nefesh based on Bava Kama 60b which obligates quarantine during an epidemic during the day and night even if confinement within one’s home for an extended period of time is psychologically devastating. He rules that during the time of an epidemic one must avoid others who may be infected. He also explains that the definition of pikuah nefesh for the public is different from the definition for an individual.[14] He applies this principle to two public health issues: vaccination and metzizah be-peh. Rav Weiss vehemently argues that one is obligated to vaccinate children against measles, mumps, and rubella, even if the mortality risk from these diseases is as low as 1 in 1,000. Similarly, he objects to metzizah be-peh, since it will lead to the death of one in tens of thousands. Thus, when addressing the needs of the public, one must consider even the rarest of cases, the risk of one in tens of thousands. In the case of coronavirus, the risk to the public of an infected individual violating quarantine is greater than one in tens of thousands or even one in 1,000. Because we worry about even the smallest risks when dealing with public safety, Rav Weiss concludes that one must adhere to quarantine.
Conclusion
Connecticut estimates that one month of social distancing and quarantine implemented in the state in the initial stages of coronavirus saved 10,000 lives. Furthermore, enforcing these measures for 60 additional days could save a total of 16,000 lives equivalent to the total number of annual deaths due to heart disease, cancer, and stroke in the state.[15] However, quarantine and social distancing, interventions prescribed for the healthy and uninfected fail to meet Noda be-Yehudah’s strict definition of holeh lefanenu. Nevertheless, they save lives and qualify as pikuah nefesh though they are intended for the healthy for four reasons. Holeh lefanenu is not required during an epidemic or for diseases that are widespread. It also includes even those who will become sick in the immediate future, and whenever public safety is at stake.
During these challenging times, we may take comfort in Rav Shmuel Eliyahu’s words of strength: Each moment spent in quarantine, whether awake or asleep, fulfils the positive commandment of ve-ahavta le-ray’ekha, which stands above all other mitzvot, as well as ve-nishmartem.[16] The simple act of staying inside can save not just one life but many lives, saving an entire world. May our careful adherence to quarantine and social distancing merit the end of this epidemic.
[1] Elaina Patton, “The High-Risk Work of a Cruise-Ship Crew Member Under Coronavirus Quarantine,” New Yorker (March 11, 2020), available at https://www.newyorker.com/news/as-told-to/a-cruise-ship-crew-member-describes-a-failed-effort-to-contain-the-coronavirus.
[2] Morgan McFall-Johnsen, “2 US Grad Students Who Were on the Diamond Princess Cruise Share Harrowing Details and Photos from Their Quarantine and ‘Zombie Movie’ Evacuation,” Business Insider (March 1, 2020), available at https://www.businessinsider.com/diamond-princess-cruise-passengers-details-photos-from-quarantine-evacuation-2020-2#every-single-person-first-thing-they-said-was-welcome-home-welcome-home-sir-fehrenbacher-said-of-his-arrival.
[3] J Rocklöv, H Sjödin, A Wilder-Smith, “COVID-19 Outbreak on the Diamond Princess Cruise Ship: Estimating the Epidemic Potential and Effectiveness of Public Health Countermeasures,” Journal of Travel Medicine 27:3 (April 2020), available at https://doi.org/10.1093/jtm/taaa030.
[4] Bill Bostock, “An Intensive-Care Expert Broke Down Just How Contagious the Coronavirus Is, Showing How One Person Could End Up Infecting 59,000 in a Snowball Effect,” Business Insider (March 23, 2020), available at https://www.businessinsider.com/coronavirus-vs-flu-social-distancing-infections-spread-explainer-video-2020-3.
[5] Richard J. Hatchett, Carter E. Mecher, Marc Lipsitch,”Public Health Interventions and Epidemic Intensity during the 1918 Influenza Pandemic,” Proceedings of the National Academy of Sciences 104:18 (May 2007): 7582-7587, available at https://www.pnas.org/content/104/18/7582.
[6] Audrey Cher, “Countries in lockdown should do what Singapore has done, says coronavirus expert,” CNBC, March 31, 2020, available at https://www.cnbc.com/2020/03/31/countries-in-lockdown-should-try-what-singapore-is-doing-coronavirus-expert.html.
[7] Justin McCurry, Rebecca Ratcliffe, Helen Davidson, “Mass testing, alerts and big fines: the strategies used in Asia to slow coronavirus,” The Guardian (March 11, 2020), available at https://www.theguardian.com/world/2020/mar/11/mass-testing-alerts-and-big-fines-the-strategies-used-in-asia-to-slow-coronavirus.
[8] Samantha K Brooks, et al, “The Psychological Impact of Quarantine and How To Reduce It: Rapid Review of the Evidence,” The Lancet 395:10227 (March 14, 2020), available at DOI:https://doi.org/10.1016/S0140-6736(20)30460-8.
[9] http://midaat.org.il/midaat/press/covid19/covid19-purim/.
[10] Webinar on Coronavirus for physicians, Agudah April 6, 2020.
[11] See Rav Chaim Navon, “Uncertain Piku’ach Nefesh and Public Policy,” The Israel Koschitzsky Virtual Beit Midrash, available at https://www.etzion.org.il/en/uncertain-pikuach-nefesh-and-public-policy.
[12] Rav Shaul Yisraeli, Amud ha-Yemini (Mekhon ha-Torah ve-haMedinah, 2000), 214-215.
[13] R. M.M. Farbstein, Assia LIII-LIV (1994): 100.
[14] Rav Asher Weiss, Minhat Asher 3:121.
[15] COVID-19 in Connecticut: Data Analysis, DataHaven (April 22, 2020 update), updated daily, available at https://www.ctdatahaven.org/reports/covid-19-connecticut-data-analysis.
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