by Rabbi David Novak
Disclaimer: The opinions expressed here are that of the writer and do not necessarily represent the views of the Union for Traditional Judaism, unless otherwise indicated.
The following responsum is reprinted from Tomeikh KaHalakhah volume 2. Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.
The text below is the result of OCR. Although it has already been reviewed, if you identify any errors, kindly email office@utj.org. A scan of the original teshuvah is available here.
In formulating a position on the treatment of patients with Acquired Immune Deficiency Syndrome (AIDS) from a traditional Jewish point of view, we must examine the fact that a large number of persons suffering from this disease are male homosexuals, and that homosexuality is a practice which is severely prohibited for both Jews (Leviticus 18:22) and non-Jews (Sanhedrin S8a re Genesis 2:24). In addition, intravenous drug abuse, another known factor in this disease, is prohibited as an act of willful self-destruction (Deuteronomy 4: 15; Baba Kama 91b). The question that arises, then, is this: is a patient suffering from a disease resulting from sinful activity to be treated differently from any other patient?
A strong argument may be constructed that no distinction should be made; our sages taught that all suffering is the result of sin, except in the case of the greatest saints (Berakhot Sa; Baba Batra 17a). Moreover, even in the case of one suffering from neg’ a tzara’ at (mistakenly translated as “leprosy,” this scripturally described disease is not the same as what we call leprosy, i.e., Hansen’s disease; see Baruch A. Levine, IPS Torah Commentary, Leviticus, Chapter 13, p. 75; Julius Preuss, Biblical and Talmudic Medicine, tr. Fred Rosner, Chapter 12, p. 323 ff.), which our sages judged was the result of a number of anti-social vices (Tosefta Nega’ im 6:7; Arakhin ISb), the community is to quarantine the patients for their own sake, but is also instructed to pray for their recovery (M 0′ ed Katan Sa). In a parallel passage, the Talmud (Sotah 32b) extends this rule to include sufferers from any other disease or misfortune as well (see also Maimonides, Laws of Tzar a , at 10:8; Shulhan Arukh, Yoreh De’ ah 335:8). Of course, prayer for the patient is just part of the general attention he or she is to receive from us tNedarim 39~Oa). This applies to both Jewish and non-Jewish patients (Gitlin 61a; Maimonides, Laws of Idolatry 10:2).
A problem does arise from the Talmudic ruling that one who is a “provocati ve sinner” (mumar lehakh’is) is not be helped but actually hindered (moridin vela ma’alin; Avodah Zarah 26b; for a historical analysis of this term, see Avraham Schwartz, Otzar Yisrael). Both RaShI (ad locum) and Maimonides (Laws of Murderers 10: 12) interpret this to refer to one who habitually and willfully sins. On the other hand, one who only occasionally sins out of lust or appetite (mumar lete’ avon) is considered one whose life and property are to be protected and carefully treated (see Avodah Zarah 26b, Tosafot, s.v, ani; cf. Maimonides’ commentary on Mishnah Nedarim 4:4 on Deuteronomy 22:2).
Under this most stringent of interpretations, we are required to ask whether a homosexual is a “provocative sinner” or merely a “lustful sinner.” Considering the frequently habitual character of male homosexual activity, it appears to be “provocative” as defined by RaShI and Maimonides (see Rabbi Joseph Karo,Kesef Mishneh ad locum on Maim., loco cit.). One could interpret the compulsive behavior of many homosexuals as lustful rather than provocative, but no support for this interpretation is found in the other medieval authorities. One must also ask whether intravenous drug abusers are “provocative sinners.” Drug addiction is both habitual and compulsive, and its categorization is perhaps more problematic (see D. Novak, Halakhah in a Theological Dimension, Brown Judaic Studies Series, no. 68,1985: “Alcohol and Drug Abuse in the Perspective of Jewish Tradition”, p. 72ff).
Nevertheless, the application of such harsh judgement is severely limited; homosexuals and drug abusers, even if deemed “provocative sinners,” would be exempted from the punishment which Jewish law prescribes. Medieval authorities emphasize that these punishments were for the purpose of discouraging flagrant and habitual violation of the law (see Tosafot Rabbenu Samson of Sens on Avodah Zarah 26b, ed. Blau, p. 82, and Nimukei Yosef, ad locum, cd. Blau [New York, 1969], p. 203, quoting Tosafot haRosh, S.V. ro’ eh). In fact, it is clear that by the Middle Ages these punishments were only applied to informers who endangered the entire Jewish community (see, e.g., Rabbenu Asher, Responsa Rosh, 17.1)-in other words, for self-defense only (see Sanhedrin 72a).
Thus, the enforcement of this specific rabbinic injunction depends on what the authorities of the age judge its consequences to be. One of the greatest authorities of our own age, Rabbi Abraham Karelitz (Hazon Ish, d. 1953), argued that this law only applied in those ages when Divine Providence was so evidently manifest that it was equally certain to all that the direct consequences of gross immorality would be social and even physical catastrophe. In an age when such is not the case, and when the Jewish masses are weak in their faith, such severe measures will have the opposite effect from what the Talmudic rabbis intended- turning more people away from the Torah. As this sage said so beautifully and succinctly, “all of our effort is to be constructive” (“kol atzmenu letakken”, Hazon Ish: Yoreh De’ ah, sec. 2, p. 7d; cf. Gittin 33a, Tosafot, S.V. ve’ afka’inu).
We do not know which punishment God metes out for any given sin, but we do know that God has commanded us to treat the sick and save the lives of the ill. The religious prohibitions against drug abuse and homosexuality have no bearing on our duties under Jewish law and tradition to heal the sick. Moreover, we must bear in mind that having AIDS is not, in itself, proof of homosexuality or drug abuse; an increasing number of AIDS patients did not fall victim to this scourge through participation in prohibited activities.
There is strong support in classical Jewish sources to obligate health care personnel to treat highly contagious patients even when there is some measure of risk. (See Rabbi Joseph Karo, K esef M ishneh on Maimonides, Laws of Murderers 1:14 and Rabbi Joseph Karo,Bet Yosefon Tur, YorehDe’ ah 336; Rabbi Solomon Luria, Yam she I Shlomo, Baba Kama 6:26. Also, see Shulhan Arukh, YorehDe’ ah 336:1 and Rabbi Naftali Tzvi Judah Berlin, Ha’Ameq Sh’ elah on She’iltot deRav Ahai Gaon, Shelah, end, on Jerusalem Talmud, Terumot, Chapter 8, end, 46b. cf. Rabbi David Ibn Abi Zimra, Responsa haRaDBaZ, Part 3, no. 986; Rabbi Joshua Falk, Sefer Me’irat Einayim on Shulhan Arukh, Hoshen Mishpat 426, Subpara- graph 2.) Rabbi Joshua Ben Levi is singled out by the Talmud (Ketubot 77b) for special praise because he ministered to those suffering from an infectious and potentially fatal disease.
Further, we believe that thoughtful adherents of Halakhah must reject both the reactionary position, which brands homosexual sufferers as not worthy of attention, and the ultra-liberal position, which accepts these prohibited practices as morally acceptable. Whether or not the patient is a sinner has no bearing on his entitlement to treatment. By the same token, treatment and compassion for the ill does not mean that we condone or accept prohibited behavior.
In conclusion, we must remember that Judaism teaches compassion to all who are suffering illness, whether their illness is the result of prohibited practices like intravenous drug abuse and homosexuality or the result of permitted practices like blood transfusions and heterosexual relations between spouses. For those who suffer, our hearts and minds must be fully engaged in their care-through prayer, through acts of kindness to the victims and their families, and through all the medical skills at our command. Every possible effort should be made to alleviate their pain and anguish.
Rabbi David Novak for the Panel of Halakhic Inquiry
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One of the founding members of the UTJ, Rabbi David Novak is recognized scholar in Talmud and theology. He has served on the Panel of Halakhic Inquiry and contributed to the UTJ’s 3-volume Tomeikh K’Hakalakha, a series of questions & answers on topical religious issues.
A disciple of Rabbi Saul Lieberman, Rabbi Novak is the author of many books and scholarly works, including:
Rabbi Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of Religion and Philosophy at the University of Toronto, where he is a member of University College and the Centre for Jewish Studies. He is also a consulting scholar and a member of the Board of Advisors of the James Madison Program in American Ideals and Institutions at Princeton University.