Jewish ethics regards every human life as having absolute value. What follows from this is a vision of how society must be structured all the time, rather than a prescription for ER triage, as exemplified recently in the coronavirus pandemic.
In the middle of March 2020, the world awakened to a crisis in ethics when the international press first reported on the necessity for new and drastic measures to ration health care in Northern Italy. Overwhelmed by the number of patients requiring intensive care and ventilators, hospitals were adopting triage practices borrowed from wartime, prioritizing patients with the best odds for survival and denying care to others, sometimes on the basis of age alone. It would be just two weeks until a similar desperation threatened hospitals in New York City. A cadre of prominent bioethicists led by Dr. Ezekiel Emanuel released guidelines for the fair allocation of medical care.
These ethicists recognized that it would be devastating for doctors and nurses to have to select which of their patients would be denied care and wanted to spare them from making the decisions. When a COVID ward is overwhelmed, how do you measure the claim of an otherwise healthy 65-year-old against that of a 30-year-old with advanced breast cancer? What if the 30-year-old is a healthcare aide with young kids? What if the reason her cancer is so advanced is that as a part-time worker, she has never had health insurance? Some ethicists disagreed with how Emanuel’s guidelines weighed issues of fairness. Experts on both sides were trying to bring wisdom to an untenable situation, measuring a compulsion to save the most lives against considerations of justice that would treat every patient equally. But they all agreed on one moral principle that could simply not be satisfied in the midst of the crisis. That principle happens to be the most important: the infinite value of every human life.
As a scholar in the field of Jewish ethics, I observed the ethical debates about rationing health care with a sense of horror and revulsion. It’s not often that ethics scholars are featured in radio spots or in the pages of major newspapers, and as March gave way to April, I heard from students, friends and colleagues who were following the issue and wanted to know what I thought. But this is a debate I don’t know how to enter. Deliberations about rationing health care put ethicists in a role like the tragic figure at the heart of William Styron’s Sophie’s Choice, facing the untenable decision of selecting who will live and who will die. I don’t want to be a crisis-ethicist, making judgments in the grip of desperation, mitigating immoralities that might have been avoided altogether had ethics been considered before disaster struck.
The current crisis has given the public the wrong idea about the definition of ethics. The demands of triage — an approach to delivering emergency health care that originates on the battlefield — cannot help but narrow our ethical imagination, reducing ethical deliberation to a zero-sum game. I want to enliven another way of thinking — an approach to ethics rooted in Jewish teachings and experience, and centered on the sanctity of human life and relationships. The kind of moral wisdom that I’m interested is not suited to those in the grips of a public health emergency. I hope to make a case for why it is worth considering anyway. I offer these notes as an invitation to nudge moral thinking and action back from the brink of disaster and into our daily lives.
From Emergency to the Everyday
There is a widely held idea that morality is best expressed during a crisis. According to this way of thinking, it’s easy to be decent in normal life, but it takes the urgency of a crisis to test a person’s moral fiber: put me under pressure in an emergency, and my true character will be revealed. This is a notion that pops up in my Facebook feed and is expressed in certain currents of modern philosophy. I think it is misguided for several reasons.
First, it fails to take human psychology into account. Like other animals, we have bodies and minds that are built for self-preservation. In times of danger, the impulse to fight, flee or freeze undermines our ability to make deliberative decisions. Jewish tradition recognizes this, suspending almost every other responsibility when life is at risk; though we are not permitted to take the lives of others, neither are we expected to sacrifice ourselves. Emergency is a detriment to imagination, to empathy, to careful reasoning. When crisis hits, one’s most important moral faculties are impaired.
Second: While emergencies offer a stage for sudden flashes of selflessness and courage, many moral virtues cannot express themselves in a moment of crisis, but only through sustained effort over a long duration. The day-in, day-out work of nurturing relationships, of making an honest living, of caregiving, of building movements for social change are quintessentially ethical behaviors. When we narrow our focus to how people act in a crisis, we give short shrift to the very acts that allow life to flourish in the day-to-day.
Finally: There can be no consideration of moral complexity in a crisis. As the thick weave of argument and counter-argument in the Talmud attests, rules and regulations are not equal to the intricate and variegated permutations of human life. Every case offers a new contingency. Exceptions proliferate around every rule. When considering a decision, it takes time and effort to sort through a range of options and measure them against an array of moral principles. In a crisis, there can be little attention to nuance or to process, and outcomes are less ethical as a result.
All of this is to say that while emergencies sometimes give rise to bursts of moral insight and exemplary deeds, when ethics prevails in a crisis, it is likely despite the crisis and not because of it.
The Best We Can Do in a Crisis (and Why It’s Not Good Enough)
At the time of this writing, the hospitals in New York and environs that were seized in the grip of the pandemic in the spring are now seeing infection, hospitalizations and death rates subside while infection surges in the Southeast and Southwest. While much has been learned about the virus in the intervening months, hospitals across the country face desperate shortages once again. Among the things we have learned is that rate of infection, complications and death are disproportionately affecting poor people, Black people, Native Americans and other people of color. Failures to arrest the spread of the virus mean that health professionals in hard-hit communities will continue to confront the harsh reality of not having enough resources to provide intensive care for all who need it. The United States still has not escaped the ethical vise of a life-and-death zero-sum game.
In the absence of any good choices, it is striking to note that not all ethicists agree on which choices are less terrible than others. The ethical approach that leading bioethicists such as Emanuel and his colleagues take to address the crisis is strongly utilitarian in that it seeks to achieve the most benefit for the most people. In general, this means saving the most lives and also gives priority to those patients who are most likely to have the most years of life still ahead of them. Even as Emanuel tempers his utilitarianism with the consideration of fairness and the value of treating all patients equally, his approach ultimately privileges those with the best chances of survival. In a situation when there is not enough lifesaving equipment to go around, Emanuel recommends that clinicians end treatment for one patient if another with better odds for survival comes around.
Emanuel’s counsel diverges from Jewish ethical teaching in both its approach and its conclusion. The Jewish ethical tradition does not fall clearly within the bounds of any one school of ethics. While ancient rabbinic decision makers sometimes attend to the consequences of alternative courses of actions — like a utilitarian — they give far more attention to the laws and principles that define Jewish obligations to God and to other people. They also sometimes consider how any given course of action will shape the character and experience of the ethical subject.[fn]In the technical language of the field, while Judaism is strongly deontological in its ethical orientation, it also partakes of consequentialism and of virtue ethics.[/fn]
Rabbi Daniel Nevins, a Conservative Jewish leader and halakhist, decries Emanuel’s recommendations as inimical to Jewish ethical teaching on the sanctity of human life. He is horrified by the possibility of a doctor extubating a patient against the patient’s wishes and despite the protestations of family members. In a responsum published at the end of March, Nevins rules that it is forbidden for clinicians “to remove a patient from a ventilator, causing their death, based only on the assessment that another patient has a better prognosis.”
I am moved by Rabbi Nevins’ protest against the utilitarianism that has prevailed in public debates about allocating scarce health care resources. But even as he intervenes to prohibit clinicians from actively causing death, the alternatives he lays out cannot escape the inherent moral tragedy of a no-win situation. Nevins’s ruling necessarily gives priority to the patient who arrives at the hospital first, condemning those who arrive later without regard for the conditions of their lives or their prospects for recovery.
Ethicists such as Emanuel and Nevins, who stepped into the breach to offer guidance about how to distribute scarce life-saving resources, are not responsible for the terrible constraints they confront. I am grateful to them for using their wisdom and expertise to try to make a difference for doctors, nurses, patients and families in the grip of heartbreak and disaster. But the tragedy of this crisis is that despite the best efforts of leading ethicists, a moral outcome is impossible because the true ethical moment long since passed. Before the crisis, before we were paying attention, there was an opportune time for an ethical intervention: to prevent the spread of disease, or to expand health insurance coverage, or to address the structural inequalities and co-morbidities that disproportionately afflict people of color. By the time questions of ethics became salient, the most ethical course of action had already been foreclosed.
The fact that hospitals in Texas, Florida and in Native American reservations now face the same crises that gripped New York months ago is a shameful ethical failure.
Pikuakh Nefesh Is a Floor and Not a Ceiling
For now, even as harrowing health-care shortages intensify and the virus spreads across the country, many Americans proceed as if the crisis has abated. The focus of ethical deliberation has shifted away from the emergency room to complicated considerations of when and how to venture out to shop, to work, to worship, to protest. The patchwork of policies and practices that opened up businesses and other institutions have introduced a myriad of ethical dilemmas for individuals to navigate on their own. (See here for a guide to such decision making.) It is no longer warranted to presume that activities that are permitted are safe, for an individual’s health or for the public.
As legal scholar Chaim Saiman points out, with the relaxation of shelter-in-place restrictions, government guidelines now diverge from the Jewish ethical imperative of Pikuakh Nefesh, preserving life. Saiman explains that even when government regulations uphold the goal of “flattening the curve,” that goal falls short of Jewish teachings on the ultimate value of human life. The aim of “flattening the curve” is to reduce illness and death to a level that will not overwhelm the health-care system. While there is a good chance that outcomes improve when an outbreak is modulated to correspond to health-care capacity, a flattened curve does not necessarily change the overall number of infections or deaths, but only prolongs their occurrence. In contrast, the dictates of Pikuakh Nefesh elevate the preservation of human life above all else and demand a far more stringent level of precaution.
In recent weeks, a wide breadth of Jewish communities and leaders have affirmed the principle of Pikuakh Nefesh, choosing to uphold health precautions even when they are no longer government mandates. That so many Jews have coalesced around this Jewish imperative to save lives should not, however, distract us from the fact that preserving life is but a prerequisite for ethics and not its fulfillment. When classical sources dictate the suspension of all but the most severe requirements of Jewish law in times of emergency, that is not because the myriad commandments, customs and practices that govern Jewish life in less dangerous times are unimportant. For the rabbis, “live by them” (Leviticus 18:5) means persevering in life so that one will have the ability to fulfill the commandments that are one’s purpose. One waits for the Pikuakh Nefesh override to pass, so that one can return to the full complement of ritual and communal responsibilities that make up Jewish practice. Mere survival is the lowest threshold for an ethical life; our aspirations for justice and for beloved community demand much more.
An Ethics That Reaches for Infinity
What do I mean when I invoke Jewish ethics as something that involves rules and virtues and values and practices, but is greater than all those things? My vision of Jewish ethics is shaped by the teachings of Emanuel Levinas (1906-1995), a leading philosopher of the 20th century. Levinas was born in Lithuania and moved to France to pursue studies in philosophy before the rise of Nazism. He, his wife and daughter survived the war while his family in eastern Europe were killed in the Holocaust. Over the course of his long career as a philosopher and Jewish educator, Levinas advanced a program of “ethics as first philosophy,” promoting the idea that moral responsibility is more important than the focus on rational thought that dominates Western thinking. Levinas stood both within and apart from the Western philosophic tradition, challenging a set of teachings that had failed to prevent the genocide that killed his relatives. He discovered an ethics centered on human relationship in the texts of Jewish tradition and also in the Jewish collective experience of suffering.
In contrast to Western philosophy’s emphasis on the individual as an autonomous being, for Levinas, there is no self outside of human relationships — one’s sense of self can only emerge in relation to another person. At the core of Levinas’s thought is an account of a relationship between two human beings that is sacred and infinitely demanding. Levinas describes the face-to-face encounter between two people as the grounding for all experience. In his account, two people who meet face to face do not regard each other as equals in a mutual relationship; rather, the other person is always present as if from on high, issuing commands and imposing responsibilities. The face of the other person appears as a revelation and communicates both transcendence and infinite need; Levinas sees himself as holding the very life of the other person in his hand. When he says that ethics is primary, he means that responsibility for another person is quite literally what the human self is made of.
When I invoke the Jewish ethical tradition, I imagine a river that is long and broad and life-giving, with tributaries that are the laws and virtues and practice and values that have sustained and buoyed Jewish life over the course of generations. The river’s properties change in different times and places, but its droplets reveal a common molecular structure; this structure is the transcendent moment of human responsibility that Levinas describes.
Levinas’s account of ethics is forceful and demanding. Because he invests each human encounter with infinite meaning and obligation, it becomes hard to apply his vision to everyday life, where countless others cross our paths or appear on our screens. Levinas acknowledges this difficulty and identifies politics as one realm where the infinite demands of the ethical relationship are translated into public practice. In one interview, he observes that “there are tears a civil servant cannot see,” a statement that my teacher Michael Morgan interprets as a key reference both to the shortcomings of politics and also to its necessity. While for Levinas, political life, including public health policy, will inevitably fail to deliver on the infinite responsibility that every human being commands, an unyielding ethical standard can nonetheless serve as a goad to constantly move politics closer to the kind of flourishing social life that is equal to our humanity.
Against Apocalyptic Ethics
From the midst of a public health emergency that is intertwined with the ongoing crisis of racism, I imagine an ethics true to the particular responsibilities and relationships that ground and sustain humans in our day-to-day lives.
More than 25 years ago, the late scholar Michael André Bernstein published a slim volume on literary responses to the Holocaust called Foregone Conclusions: Against Apocalyptic History. The book critiques the tendency of both historians and fiction writers to present life before the Holocaust from the standpoint of the horrors that would come later, so that Jews are depicted as victims walking inexorably towards doom, and a sense of looming cataclysm overshadows the rich and variegated lives that people were living for years and decades before the genocide. Bernstein calls instead for a kind of storytelling that is true to the particulars of life as it is lived in the present, where so much is contingent, possibilities are multiple, and the future is unknown. He argues that this kind of storytelling is not only more faithful to lived experience, it is also more ethical. Over and against the stories of violence and domination that are the major preoccupations of art and history and philosophy, Bernstein[fn]Bernstein, p. 121.[/fn] invites attention to “the texture and rhythm of our daily routines and decisions, the myriad of minute and careful adjustments that we are ready to offer in the interest of a habitable social world.”
To illustrate what he is after in such an everyday ethics, Bernstein[fn]Bernstein, p. 127.[/fn] quotes the late Israeli poet Yehuda Amichai, who wrote:
A group of tourists stood there around their guide, and I became their point of reference. “You see that man over there with the baskets? A little to the right of his head there’s an arch from the Roman period. A little to the right of his head.” “But he’s moving, he’s moving!” I said to myself: Redemption will come only when they are told, “Do you see that arch over there from the Roman period? It doesn’t matter, but near it, a little to the left and then down a bit, there’s a man who has just bought fruit and vegetables for his family.”
For Amichai and for Bernstein, redemption is not to be found in the grand sweep of history, and not in the crush of a crisis or in the drama of sacrifice on the altar of principle, but rather in the modest duties of the everyday.
What does it mean to advance such a humble ethics in the midst of an ailing world? Can one in good conscience carry on with poetry and fruit and vegetables when neighbors and friends are granted no such comforts; when disease threatens; and brutality, racism and scarcity persist as the law of the land? This is the puzzle that I wrestle with — how to meet the urgency of a crisis and also honor the plenitude of redemptive possibilities that each moment holds out.
But I know that crisis-ethics will not serve us in the redeemed world that we seek. For the sake of that future — for the sake of a world that is more fair, more kind, more safe for humans and other creatures — I want to reel ethics back from the experts, back from harrowing decisions of life and death, back from the threshold of destruction and into the thick of life itself. As the world drifts toward terrible ends, it is no small thing to pull away from the brink, to duck out of death’s shadow, to refuse an inexorable slide towards disaster. I want an ethics that upholds everyday efforts to do the right thing. I choose an ethics that acknowledges a whole world of responsibility in the face of my neighbor. I want an ethics like my grocery basket, with a heft that requires deliberate effort and a copiousness that can nourish and sustain.
Mira Beth Wasserman’s work as a rabbi and scholar bridges Talmud study, community building and the pursuit of social justice. She is director of the Center for Jewish Ethics and assistant professor of rabbinic literature at the Reconstructionist Rabbinical College. Her teaching and research focuses on how Talmud study can serve contemporary ethical deliberation. Her book, Jews, Gentiles, and Other Animals: The Talmud After the Humanities, was awarded the Salo Baron prize for the best first book in Jewish studies published in 2017.