Quicksilver כספית

Unethical medical experiments on Jews

Haaretz reports that "Doctors at Kaplan Hospital in Rehovot and Harzfeld Geriatric Hospital in Gedera have carried out dozens of illegal experiments on hundreds of patients in their 90s and older, a Health Ministry inquiry committee has recently found."

So far, haven't seen info on the types of experiments or any responses by those accused of these crimes.

Kaspit

Siamese twins and an exceptional Jewish law ruling

Joined at the heart, it's painful to realize that these Israeli twins were doomed from start. Ha'aretz reports that the ultra-Orthodox parents would have used modern diagnostics (cf. my previous post). Furthermore: "A source close to the family said that had the diagnosis of the conjoined twins been presented in time, the parents would have sought rabbinical approval to stop the pregnancy."

It's not the first time that an Orthodox family had Siamese twins who shared a heart.

Philadelphia, 1977. The country's top halakhic authority, R. Moses Feinstein, agreed orally to let C. Everett Koop terminate one (non-viable) of the doomed twins so that the other (viable) twin could live. Here's the story as told by Rabbi Moshe Tendler. R. Feinstein apparently treats the non-viable twin as a rodef, a pursuer, who may be terminated (cp. fetus that threatens a mother's life). I believe that R. Bleich (Tradition 31:1, 1996) and R. Tendler also suggest another rationale, based on classifying the non-viable twin as a treifa, a person who cannot live for long. R. Shabtai Rappoport harmonizes the two approaches. From any standpoint, R. Feinstein's decision is highly controversial because it seems to permit the active termination of a newborn for the sake of another's life.

R. Moshe Feinstein's compassionate and sui generis decision has been used to critique the Catholic position in a similar, more famous Siamese twins case in England. (by Leora Rosen, Gregg Easterbrook)

Sobering case to consider, as we enter the gates of repentence, the gates of judgment, as The Supreme Judge decides who shall live and who shall die.

May you be written and sealed in the book of life, a redemptive Rosh ha-Shanah (Jewish New Year) to all,

Kaspit

Another link: essay on conjoined twins cases

Technologies diagnosed recently under Jewish law...

Touching and thoughtful post about ultrasound: Does Jewish law permit the use of ultrasound to diagnose the condition of the fetus? ADDeRabbi mentions one Rabbi's view: "His rationale is based on anecdotal evidence of stress caused by misdiagnosis, and some examples of cases where misdiagnosis resulted in unnecessary operations, from which the infant died. He felt that the potential costs far outweighed the potential benefits that may result from such a procedure." Read ADDeRabbi's sound rebuttal here.

"Leading Torah authorities signed the proclamation, including but not limited to Rabbi Ovadia Yosef, Rabbi Yosef Sholom Elyashiv and the Rebbe of Gur." What was the occasion? Approval under Jewish law for "kosher" cellphones. HT to Town Crier.

And this just in time for the Days of Awe and awesome diets: Maalox is among the pharmaceuticals getting a kashrut certification. HT again to TC.

Shanah tovah u-metukah, a sweet and happy new year,

Kaspit

Circumcision as a once and future risk ...

Circumcision can be a hazardous activity in two ways, according to recent daf yomi readings (Shabbat ch. 19). For one, Jewish observance and performance of the bris milah (= covenant through circumcision) may be persecuted by Gentiles. The Romans apparently sought to suppress bris milah, as indicated by our mishnah (bShab 130a)* and other rabbinic texts (e.g., the midrash Mechilta 20:6). Despite the persecution, rabbinic Judaism continued to require bris milah, sometimes at the price of martyrdom. The gemara deduces that circumcision is extraordinary for various reasons, such as the thirteen (1) covenants for which milah is done.

Of course, circumcision is hazardous in a second way -- as a physical, "medical" procedure. In my draft chart on risk in Jewish law, I see circumcision as a fascinating case because, depending on the circumstances, a bris may exemplify four different categories of risk:

(A) First, I label circumcision as a medium risk for newborns -- not the lowest probability of harm, and not necessarily fatal harm -- in the pre-Modern era. On 134a, the rabbis focus on bandaging, which if applied badly could disfigure the child's genitalia. Circumcision was a rather risky surgical procedure in antiquity and medieval times (cp. story of womana whose first 2 sons died, 134a Shabbat).

(B) Secondly, the Talmud also looks at elevated risk conditions for circumcision, as when an infant is too weak, too emaciated, or discolored. As a general principle. the mishnah states that a sick newborn is not circumcised until he becomes healthy. Specifically, the rabbis felt that the infant's color indicates a danger to their life (e.g., yellow = jaundice) may require postponement of the procedure (134a).

(C) Third, today, yellow skin tone is much less an indicator of actual danger to the baby. Instead, doctors can measure jaundice directly. Thus, today circumcision has become far less risky thanks to medical changes.** (Hence, here is where Jewish medical ethics adapts to a change in medical care. Contrast this situation with cases of where modern-era traditional rabbis feel that nature has changed.) DovBear tells an anecdote and poses a fine question: If a "yellowish" newborn is cleared by a doctor as ready for an immediate circumcision, should the Jewish father stay loyal to the medieval rabbinic authorities who cautiously require the postponement of the bris milah? Or, can our Jewish medical ethics (halakhah) waive the postponement, and thereby recognize and downshift to a lower risk based on modern medicine's ability to cure, prevent and remedy nearly any risks from circumcision for newborns?

(D) Fourth, the halakhah of circumcision also tackles an extremely low or implausible probability of harm. The Talmudic rabbis deal with the belief (or superstition) that an ominous wind may increase the risks to the infant (bYev 72b). Today, we are not inclined to credit a spooky wind as adding any marginal risk to the bris of an 8-day newborn. Indeed, I venture to say that many Rabbis themselves may not have considered the additional marginal risk as significant. After all, they judged it unnecessary to delay circumcision for any wind-related risk because "The Lord preserves fools" (shomer peta'im haShem) -- God protects us from dangers, at least dangers like inauspicious winds.

Although circumcision may illustrate rabbinic handling of these four different types of risk, I would emphasize that circumcision is unique and not illustrative. Almost no matter what the risk, throughout history Jews have felt commanded under Jewish law to take chances and perform the bris. In other words, circumcision is one of those actions that rabbinic law considers as highly unresponsive to the changes in risk conditions.

Sincerely,

Kaspit כספית

APPENDIX: Tractate Shabbat chapter 19 deals with much Talmudic medicine. For care of a circumcised baby, for instance, the Talmud discusses the use of cumin, salves, bandages, treatment of the wound, . In interpreting a mishnah, several rabbis insist that sabbath prohibitions may be overridden in order to bathe the baby's wound, as well as its entire body, because to refrain from a hot water bath is considered dangerous (saqanah) (134b). The Talmud also discusses androgynous babies (136b), babies with rare conditions ("suppressed" or absent foreskin) premature births and the danger facing premies (135a). The Talmud also contemplates whether, during its first 30 days of life, a newborn is deemed a safeqa, one of doubtful viability (136a), which leads into several aspects of fetal and newborn medical ethics. Feverish newborn (137a). Retakes w/a second circumcision procedure (137b).

* Rabbi Eliezer rules that, as an exception to the Shabbat laws, the Jew who will perform a bris, the mohel, may carry a concealed knife to the ceremony. R. Shimon b. Elazar categorizes the bris as a divine commandment for which "Israel sent themselves to death" (masru Yisroel atzman).

** A fierce dispute is raging among different Orthodox Jewish groups over a traditional part of the bris, the removal of blood by suction (metzitzah). As I revise this post, I will add links to this dispute here. Apparently, metzitzah administered directly by mouth exposes the newborn to the very low probability of a severe infection or contagion.
On the halakhah: Hirhurim: Metzitzah I (intro, R. Soloveitchik), II (RCA statement), III (view of R. Feivel Cohen), IV, V (RCA June 7), and VI (NY Times).
On the politics: DovBear re: Rabbi Moshe Tendler (and comments re: regulation), Yeshiva Ortho. The Canonist (e.g. Agudas Israel v. Satmar). Media links.
Volokh Conspiracy blog.
Current status of dispute (YO).

Risk-taking with a Talmudic frame of mind [DRAFT]

Risks in the modern sense are not systematically addressed by Talmudic thought. Last week, the Talmudic daf yomi reading (bShabbat 129b) covered the risk-taking principle of “The Lord preserves the simple” (shomer peta’im HaShem -- see smoking example). In this post, I’ll try to get a handle on the overall Talmudic context for risk-taking, esp. as it may apply to environmental and occupational hazards. I’ll analyze the shomer peta’im HaShem principle later. [This post and accompanying chart are in draft form. Feel free to comment or ignore…]

Risks are somehow wrapped up in dangers, yet risks are not the same as dangers. So, to judge environmental, occupational, consumer, and other health risks from Talmudic state of mind, we first need to ask, what are dangers?

From danger to risk. Danger is a common term throughout halakhic literature. Dangers include anything that works to one’s serious disadvantage, causing loss, pain, damage, or injury. Life is an awesome and marvelous gift, yet danger is omnipresent. Some basic human activities hurt, like giving birth and dying. Plus, accidents happen. And God happens. In Judaism, the omnipresent HaShem (d/b/a The Almighty) is awe-inspiring and fearsome. Merciful and kind, God is also utterly dangerous. Arguably, any serious loss or harm is caused by HaShem or, at least, under God’s watch.

Danger can be felt. You can have an intuition of danger or look at the white of its eyes. Stand in the eye of the hurricane and then experience its destructiveness. Danger is about as real as pain and death.

“Risk” is a step removed from danger. Risk is a concept, a category of understanding (Kant) that adds to danger another element: chance, hazard, probability. Risk = danger + probability. Probability is found in two types of Talmudic reasoning about uncertainty.[1]

However, in modern thought, probability goes beyond uncertainty. Thanks to probability theory, nowadays ‘risk’ mixes danger with a dose of randomness. For Judaism, randomness seems to cut against a pure theology of divine power. By the same token, randomness throws a wrench into the theological machinery of free will. Perhaps this explains why, in futile protest to the arbitrary and random, Jewish law (halakhah) does not quite have a traditional Hebrew term that translates into ‘risk’

Luckily, Jews tend to eschew systematic theology. Classical Judaism works more smoothly with archetypes than abstract definitions. So, in our narrative and legal discourses, traditional Judaism does not define ‘risk’ yet it talks about numerous risks. Though it may be theologically contradictory or paradoxical, the Talmudic tradition also allows for fate, chance and the random.

Talmudic writings on risk-taking are expressed through various literary forms, e.g. as principles, rules, and cases/examples. To gain an overview of the various Talmudic approaches to risk-taking, I am trying to organize the material in a chart. This DRAFT chart of Talmudic risks takes into account the type of halakhic norm (e.g., prohibition or advice), the subject’s response to the risk (e.g., prevent or take risks), and the risk characterization (level of danger + probability of harm). The chart shows the breadth of risks and range of rabbinic approaches; it also calls attention to the difficulty in formulating a consistent theory of risk-taking for Jewish law.

I would appreciate getting feedback on this work in progress, but it may contain errors so please read it at your own risk.

Good shabbos,

Kaspit

[1] Moshe Koppel analyzes two types of Talmudic reasoning about uncertainty: (1) When the rabbis can count up the possibilities in an uncertain situation, they calculate the odds. The halakhah is then decided with the majority (rov - RDIK). (2) When an uncertainty cannot be counted, I think that the sages reason from ballpark estimates. They then devise an ad hoc probabilistic rule to decide with the majority (rov - RDLK).

“Considering how dangerous everything is, nothing is really very frightening.” (Gertrude Stein)

Sources: [JD Bleich, M Slae, D. Cohen, M Koppel, N Rabinovitch, forthcoming...]

More talmudic health care

Health care has come up a number of times in the last few weeks of daf yomi Talmudic readings. For instance, at Shab 123a the sages discuss the needle used to remove splinters, the use of emetics, and the (proto-chiropractic?) readjustment of the dislocated limbs of a newborn. There is also a fascinating conversation about about the measures that may be taken, regardless of Sabbath prohibition, to take care of a women before, during and well after labor, e.g. lighting a lamp for a blind woman (128b-129a). (Plus, the halakhah that the umbilical may be not only tied but also cut on shabbat.) Here Mereimar teaches the principle that rabbinic laws "are interpreted leniently for an uncertainty involving life" (safeq nefashot le-heqel).

Having read so much about folk medicines in tractate Shabbat, I looked at Jewish Magic and Superstition by Joshua Trachtenberg (1939!), still a fount of information and highly readable. In the long chapter on medicine, he digests supernatural etiologies of disease, bloodletting, psychic treatments, homeopathy, charms, incantations, magic names, use of Torah verses and scrolls, gross potions, misc. healing devices, name change, and herbs. this passage caught my eye:

[Medieval] Northern Europe, walled off from the enlightenment that radiated from the Arab lands, produced not a single Jewish physician of note. Jewish practitioners of medicine there were aplenty, but their science was little more than a faint reflection of the learning of their southern co-religionists. … It is unfair to suggest… that Jewish medical superstition is to be regarded mainly as an imitation of the Christian. … the rationale of superstition and magic in medicine was part and parcel of the Jewish cultural heritage.” (194)

It's hard for some of us to admit the degree of medical and other superstition within Judaism, but that's one kind of knowledge they had available. And it's nice to remember the level of Ashkenaz during the golden age of Sefarad...

Stay well,

Kaspit

Tobacco business and Jewish ethics

Are tobacco business operations allowed under Jewish law? While most of the cigarette recent smoking comments on Hirhurim discussed whether smoking is permitted to individuals, Charlie Hall raised a question of Jewish business ethics:

"Is it acceptable to derive benefit from selling addictive substances? This is not a theoretical issue: [James S. Tisch,] The President/CEO of Loews, which owns Lorillard Tobacco, is on the board of Mesorah Heritage Foundation [1]. [Lorillard] is the oldest tobacco company in the US. Their original mill is still standing along the Bronx River in the New York Botanical Garden. Here is what I found on Lorillard's website:"

"All cigarettes are dangerous and smoking can cause serious diseases, including lung cancer. Cigarette smoking can also be addictive. Lorillard supports the continuing efforts of public health authorities to inform the public about the dangers of smoking. Lorillard believes that the public should pay attention to and rely upon the Surgeon General’s warning printed on every cigarette package and in every cigarette advertisement, as well as the wealth of other information provided by public health authorities in making informed decisions about smoking.”

Does Charlie Hall have a valid point here? Besides tobacco companies, it would also be worthwhile to consider Jewish law on tobacco advertising and retail cigarette sales.

Kaspit

[1] The Artscroll Talmud is a project of the Mesorah foundation. The Tisch family, of course, is involved in numerous other Jewish philanthropies besides Artscroll.

The world of Rabbinic cures and punishments, according to Artscroll

Talmudic medicine does not guide Orthodox Jewish doctors today. Doctors glean neither remedies nor bioethics from the Talmudic cures in recent daf yomi (ch 14 Shabbat). So, how does Artscroll annotator R. Yosef Davis explain Talmudic folk medicine? In a note on “The efficacy of Talmudic remedies” (109b2:10), R. Davis begins: “Over the next few pages (109a-111a), a number of remedies for various physical disorders are recorded. Many of these cures, however, are not consistent with the known laws of nature.”  Here’s how R. Davis smooths over the Talmud’s conflict with science:

Beyond human reason. “… during the Creation, God invested various herbs, minerals and procedures with the power to effect remedies, some in ways that are comprehended by human reason and some in ways that are beyond our understanding” (Rashba I:413)

Known only to the wisest. Some remedies “are comprehensible only to those who are able to plumb the depths of the Sages’ words [Maharasha]. In particular , many of the various herbs recommended by the Gemara cannot be accurately identified.”

Do not try this at home. “Consequently, one should not attempt these remedies nowadays, since it is unlikely that anyone today will fathom the Talmud’s intentions, and one who finds his application of a remedy ineffective may come to belittle the words of the Sages” (Maharil, R. Akiba Eiger)

Ban on trying. “… one who does rely on Talmudic remedies in our era is punishable by excommunication” (Yam Shel Shlomo) More punishment below.

Changes in nature voids remedies. R. Davis says, “In addition, changes have occurred in the state of nature (nishtanu teva'im) since Talmudic times, and therapies which were efficacious in those times are not necessarily so nowadays.” [1]

Artscroll’s R. Davis is caught in the bind of the less-modern Orthodox. On the one hand, he admits that scientific knowledge rejects Talmudic medicine. He knows that even pious readers will find the remedies implausible. On the other hand, like much rabbinic discourse, he presupposes that one ought not deny outright the literal truth of a Talmudic statement. This may be due to etiquette, respect for elders, faith, epistemological humility, or the mythos of a legal hermeneutics. By stipulating the literal truth of Rabbinic utterances, the collision with science can lead Orthodoxy into controversial doctrines like da’as Torah, mystical pre-modern wisdom, and changes in nature (Hebrew data). Such Orthodox doctrines have been a Jewish blogging topic (see Hirhurim, Jewish Worker), esp. since the ban on R. Slifkin’s books about science and Torah.

Rabbinic clout. Why would a government official die of a snakebite if the (magical) remedy was apparently available? Abaye says that “perhaps he was bit by a Rabbinic (d’rabbanan) snake, for which there is no cure.” (bShab 110a) Artscroll’s R. Yosef Davis uses Abaye’s obscure explanation as a teaching moment. “Abaye surmised that the officer had violated some Rabbinic law…. Although some Biblical transgressions carry the death penalty and some do not, all Rabbinic offenses are punishable by death [at the hand of God] (Eruvin 21b and Rashi).  Etc.” [2] In Jewish lore, God’s death penalty is often executed by animals, here via snake bite.
 
In sum, Talmudic remedies do not conform with modern science. To have faith in the infallibility of Talmudic texts, you can rely on several controversial doctrines. However, Jewish law requires that we use modern doctors. We are forbidden to use Talmudic folk cures. If the cures don’t kill you, a snake bite might do the trick.

Shavua tov,

Kaspit  כספית

[1] Tosafot (Moed Qatan 11a), Hagahot R. Emden (Shab 129b), Magen Avraham (OH 173) and Kesef Mishneh (Hil. Deot 4:18) 

[2] All rules in Halakhah may be fundamentally divided into the categories of Biblical i.e. revealed rules (d’oraita) and supporting Rabbinic rules (d’rabbanan). Transgressions of revealed law are punished by fines, flogging, offerings, exile, etc. and the death penalty. Rabbinic rule transgressions carry various earthly penalties, too, but here we learn that all d’rabbanan violations incur divinely-administered capital punishment.

Bloggers defend R. Feinstein’s approach to cigarette smoking

Cigarette smoking is a form of self-induced toxic poisoning. So why did the greatest American authority on Jewish law (poseq), R. Moshe Feinstein, not declare tobacco smoking as prohibited? As Hirhurim points out, R. Feinstein did forbid marijuana. I’ve reviewed some of the comments on Hirhurim who criticize R. Feinstein on tobacco. Now let’s look at blog commenters and others who defend R. Feinstein’s approach. As noted previously, Reb Moshe said (1963, 1981) that smoking is not prohibited as self-endangerment because, given that so many indulge (dashu bo rabim), "The Lord preserves the simple" (shomer peta'im ha-Shem). Defenders mostly re-apply R. Feinstein’s approach so as to prohibit smoking:

A. The informed judge. Some argue that, if only R. Feinstein had known the extent of the health risks, he would have prohibited smoking. This is plausible and has long been advocated by his son-in-law, R. Moshe Tendler. (See D. below and [2]). However, I would point out that R. Feinstein had good access to health evidence in 1981 and still upheld that smoking is permitted under Jewish law. Indeed, R. Feinstein deliberately dismisses the health evidence as (potentially) erroneous.

B. The informed smoker. As long as smokers become aware of the serious health risks of smoking, they no longer qualify for the exemption that “The Lord preserves the simple”. Rabbi J. David Bleich recently argued that R. Feinstein’s 1963 ruling “accurately reflects the societal reality of that time… However, it is more than likely that, at present that condition no longer obtains.” [1] Thus, with mandatory package warnings (U.S.) and anti-smoking campaigns, most people do not take smoking risks for granted. (i.e., the dashu beh rabim exemption is gone)

C. Cumulative harm. A few commenters pointed out that it’s difficult to argue that any given cigarette causes harm. True, one cigarette may lead to many more. But a single cigarette cannot be forbidden as self-endangerment (e.g. Gil). Conversely, Mar Gavriel said: “I'm not sure that that's correct. For one thing, nicotine is inherently a poison. And for another, the act of inhaling smoke poses imminent danger to one's health. It won't be permanent, irreversible damage, but it will cause damage.” I would note that neither side clarifies the level of habitual smoking that might be prohibited under Jewish law.

D. Long-term harm. An anonymous blogger noted that Jewish law cannot easily forbid an uncertain harm that may be caused over the long haul. I would add that R. Bleich distinguishes between immediate and long-term risks (based on Binyon Zion 137). Since smoking involves long-term risks, R. Bleich argues that smoking is permitted as long as less than 50% of smokers are not irreversibly harmed. In 1977 and 1983, R. Bleich used this threshold to justify R. Feinstein’s conclusion. However, recently R. Bleich noted “that the cumulative risks … foreshorten the lives of the majority of smokers.” [1]

E. A defect in rabbinic authority. Mar Gavriel raises the question of whether Rabbis nowadays have authority under Jewish law to forbid smoking through a precautionary measure (gezerah). Indeed, R. Bleich (1977, 2003) asserts that modern Rabbis cannot proclaim a new health-based issur. Nevertheless, now even R. Bleich concedes that smoking is forbidden by the approach taken by R. Feinstein.

F. Halakhah responds to the community. Aramis argues: “What R. Moshe wanted to do was … not issue a pesak to the community which would be observed mainly in the breach.” Aramis is correct that halakhic principles that discourage rulings that the observant Jewish community cannot abide. Thus, Reb Moshe may permit smoking as long as people cannot abide by a prohibition. [3] This hypothesis cannot be proven but R. Feinstein’s 1981 obiter dicta lend credence to this notion.

Well, I've tried to do justice to the blog debate on Hirhurim, which I'd missed. Hopefully, I can wrap up my analysis later (by editing or with another post). Meanwhile,

Good shabbos,

Kaspit  כספית

[1] Tradition 2003 (37:3) p.96-7,

[2] RCA Roundtable. (Statement by progressive Orthodox Rabbis Saul Berman, Reuven Bulka, Daniel Landes and Jeffrey Woolf.) “Proposal on smoking” (unpublished) July 1991.

[3] Alternatively, R. Feinstein’s position may be explained by halakhic principles that authorize Rabbis not to publicize certain rules. If so, he may privately consider smoking forbidden but feel that it is inappropriate to say so. This principle can be invoked to protect the overall integrity of halakhah.

Bloggers criticize R. Feinstein on cigarette smoking

Cigarette smoking is a test case for a Jewish legal (halakhic) critique of toxicality. Tobacco exemplifies the business with a profitable technology that happens to cause unintended harm as a side effect. [1] As a business practice that poisons people, the tobacco industry is an exaggerated paradigm for many lesser environmental and occupational toxic risks. Cigarette smoking and other health risks were discussed in comments to a post on marijuana and addiction [2] by Rabbi Gil Student at Hirhurim. The comments discussed whether an individual Jew should be prohibited under Jewish law from smoking cigarettes. The Hirhurim discussion focused on the rulings (psaq) of the late R. Moses Feinstein, who declined to prohibit smoking in responsa in 1963 and again in 1981[3].

At the outset, I'd say that the comments miss a crucial aspect of the halakhic status of smoking in Orthodox Judaism. Rabbi Feinstein and other halakhic authors forbid, in effect, smoking from synagogues and study halls (batei midrash). By implication, then, there is a halakhic consensus that smoking is prohibited in all indoor spaces shared with non-smokers. [4] This consensus adds greatly to a hermercurial critique of environmental and occupational hazards.

Smoking can be prohibited as self-endangerment (ushmartem meod et nafshoteichem). So argues a few authors before R. Feinstein's first psaq, as well as R. Eliezer Waldenberg afterwards [5]. However, Rabbi Feinstein argues that smoking is exempt because many people engage in it (dashu beih rabim) and, hence, smoking is one of those accepted practices for which “the Lord preserves the simple” (shomer peta'im Hashem).

R. Feinstein also argues in 1963 that many other great rabbis (gedolei Torah) have smoked. Mycroft argued that “he wouldn't say something is assur that Rabbanim have been doing for centuries.” However, it’s not clear why R. Feinstein relies on this argument. Does he view these past practices as a legal precedent (ma-aseh rav)? Does he believe that earlier rabbis had an inspired capacity that outweighs medical evidence (da’as Torah)? Does he want to avoid harming the reputations of past and current colleagues? In his 1981 ruling, R. Feinstein speaks strenuously against smoking as an inappropriate and excessive desire (ta’avah). [Noted by Literati.] Also, as I belatedly commented, addiction to smoking is arguably forbidden by R. Feinstein explicitly. (Contra the original post R. Student. See [6], below.)

Many commenters criticize R. Feinstein for not prohibiting tobacco smoking under Jewish law. These criticisms include:

(a) Personal bias. Some claim that Rabbis are biased due to their personal smoking. This claim itself is said to be disrespectful or, alternatively, such bias irrelevant, because all psaq (Jewish law rulings) has a subjective aspect. I would add: even were it historically and psychologically “true”, this claim of bias by a halakhic authority does not invalidate the ruling. [Under Jewish law, there are more extreme conflicts of interest that may invalidate a judge.]

(b) Protecting colleagues. Some comments imply that, in permitting cigarettes, R. Feinstein acted in order to improperly protect his smoking colleagues. I see this as highly implausible. First, because R. Feinstein made other decisions that offended his colleagues. Second, because he may be acting properly under Jewish law to protect the reputation and public standing of colleagues, i.e. communal leaders and halakhic authorities. Were consideration of colleagues improper, he would not have mentioned this reason explicitly. (Judges in every legal system need to protect the integrity of other judges. Each legal system can be evaluated in terms of how judges protect each other, and whether they are worthy of such protection.)

(c) Smokers as fools. Since R. Feinstein permits smoking because “God preserves fools”, one might infer that only fools are permitted to smoke.[7] However, I think that the reference to “fools” (peta’im) should not be taken too literally. (Talmudic law can borrow phrases like this from the Hebrew Bible and change/ignore the original meaning.) Would R. Feinstein imply that smokers are fools, when he himself refers to gedolim as smokers. He also speaks respectfully and sympathetically of average, hard-working smokers.

(d) A ban could have saved many lives. An anonymous commenter assumes that many smokers “took [R. Feinstein's] words as gospel from above”. However, I would point out that any smokers (and community leaders) who sincerely wanted to take R. Feinstein’s words as gospel would have known to stop smoking based even his first psaq. The 1981 letter appeals to his followers and strongly opposes smoking, even if it does not consider it technically forbidden.

In my next post, I will discuss how other comments at Hirhurim sought to explain or defend R. Feinstein’s position on the smoking of cigarettes.

Kaspit כספית

PS Dedicated to my mother, an early adopter of anti-smoking policies, and to my father, for following her psaq.

[1] Perhaps I’m too sanguine with “unintended” because, by approx the 1950s, tobacco companies intentionally took advantage of the addictive aspects of cigarettes. Still, even in knowingly selling a nicotine delivery device, the companies do not intend to kill off their customer base.

[2] Hirhurim cited R. Feinstein's psaq on marijuana, translated here.

[3] The 1963 letter (Igrot Moshe YD 249): “One should certainly take care not to start smoking, and to take proper care in desisting. But should one conclude that it is forbidden as an activity dangerous to one’s health? The answer is that because the multitude are accustomed to smoking, and the Gemara in such a case invokes the principle that “the Lord preserveth the simple,” tractates Shabbat 129b and Niddah 31a, and in particular since some of the greatest Torah scholars in the present and previous generations do or did smoke [there is no prohibition]. Consequently even someone who does take the stringent view, and does not smoke out of concern for the health danger, may properly offer a smoker a match, and not be concerned about the prohibition against facilitating a transgression.” Translated by Menachem Slae. Smoking and damage to health in the halakhah. Jerusalem, Acharai Publ., 1990

I have not seen the 1981 letter translated. (Igrot Moshe HM 2:76)

[4] However, R. Feinstein ruled against indoor pollution from tobacco as a nuisance, not as a toxic pollutant. (Igrot Moshe HM 2:18, letter dated 1980)

[5] R. Waldenberg translated in B’Or ha’Torah 8 (1993) and, with R. Halevi, by R. Helfgot here.

[6] "... it is certainly better not to smoke, particularly for a Ben Torah, since this is a habit which maybe dangerous and which affords no benefit or pleasure to anyone who is not addicted [hur'glu]. Certainly one should not take up smoking or allow his children to do so, even if he himself is already addicted [nitragel]. Besides the danger involved, there is good reason to prohibit smoking* [assur le-hitragel] because one should not habitualize himself to all sorts of pleasures [ta'avot] ...." Translated by Slae, op cit, p.41, transliterations mine. *Better: "prohibit getting addicted"

[7] Ari: "I heard from a talmid of R David Feinstein that 'shome pisuim Hashem' isn't a Heter. It means if you do this then shomer pisuim Hashem ie you're an idiot but go ahead because G-d guards fools."