I have been thinking for a long time exactly how to approach the topic of abortion in this blog. The two topics that we have already discussed - the halachic definition of death, and the rationale for treating a goy on shabbos - were very different. The first topic we analyzed with our five principles, and discussed how changing understanding of physiology could affect the way we define halachically when death occurs. The second was more of a moral dilemma, and we demonstrated how a re-analysis of the sources can lead one to a different understanding of the halacha then that which is often presented in many of the contemporary works of halacha.
Abortion is a different type of issue and we can approach it from many different angles. It also has the unique distinction of being a very highly charged political issue, with two very active and vocal schools of thought fighting each other in the public and political arenas. So it goes without saying, that Orthodox Jews want to know what the position of the Torah is on this volatile issue. I have spent many years researching the subject in the Torah sources and there has been lots of ink spilled. However, there is one very fascinating observation that i have made as I traveled through the traditional sources on abortion that will be the underlying theme of my blog posts on this topic.
I actually believe that the halachos of aborting a fetus is quite unique among the many areas that halacha deals with. That is because the fundamental laws that pertain to abortion are extremely unclear from the Torah and chazal. This has led to a situation where the later halachic authorities have scrambled to try to find out what exactly the fundamental issues are that need to be understood in order to decide practical halacha. The differences among the poskim regarding the fundamental understanding of exactly what prohibitions may be involved in aborting a fetus leads to dramatically different practical conclusions. I am sure that many of you are wondering what I mean, so I will explain a little more, and I promise that it will become clear as I develop these ideas.
I also need to start with the caveat that I am not going to try to take sides in this issue. You are all aware that I am totally not afraid to promote halachic positions that I believe in, even if they are controversial. So I am not afraid of saying what I believe to be true. However, what I will set out to do here is demonstrate how unusual and fascinating this subject is, and how disparate the opinions of the poskim are, and explain why they are so different. At the end I will also state what i believe is the right public position for Orthodox Jews in terms of politics and the legal system, and I am aware that this may lead to some heated and excited discussion. However, my main point is not to promote any political position on abortion, but rather to bring you along on a unique journey through most interesting medical halachic topic.
Many if not most of the sources I will use are easily available and quoted in the Encylopedia of Jewish Medical Ethics by Dr Avraham Steinberg in his entry on abortion, so I owe him a great debt in compiling much of this material. However, I will have my own take on these sources which you will understand as we proceed.
My first post will be "Is Abortion Even Prohibited?" and I will trace the shita of those poskim who hold that there is no real issur at all to perform an abortion. This is not meant to give you an impression of what the halacha is, just to start with the extreme lenient opinion. We will then work our way up until we reach the most stringent.
Monday, December 13, 2010
Tuesday, December 7, 2010
Is it "Only a B'Dieved?"
I started this discussion of treating a goy on shabbos with a description of my learning and research throughout my career, and the moral dilemmas that I faced. What happens when I have to be in the hospital on shabbos, and I have to face an actual, real live, gentile? How do I treat him/her?
The halacha, is clear, no matter what I am supposed to treat the patient, so does it really matter why? The bottom line is, yes, it does matter. If the reason why I am supposed to treat him is because I am afraid of the repercussions, then it is a bedieved. I should do everything I can to NOT be in the situation. This type of attitude really does make a difference to my patients. Maybe it is intangible, maybe it is unmeasurable, but it does matter. Being a doctor takes devotion, compassion, and empathy. To be an effective physician, you have to be more than a scientist, you actually have to care about your patients. More importantly, you have to believe in the importance and value of what you are doing!
Now that you have seen and read my analysis in this blog, you know that it is the Torah from which I derive the incredible value and importance of treating this person, this human being. And yes, this importance is such that it even transcends the prohibitions of shabbos. Once we have given all human beings that live in and take part in a moral and righteous society, the status of a ger toshav, we can apply the words of the Ramban (Sefer HaMitzvot Mitzvah 16 - my own translation)
To say that this reflects the true sentiments of the Torah would be the understatement of the century, as anyone who has ever read the Bible would tell you.
This of course does not mean that Jewish doctors should go out of their way to be in the hospital on shabbos to work. Of course the Torah wants us to keep shabbos. Of course the Torah wants us to spend shabbos at rest with our family, in our shuls and communities. Of course we should try as much as we can to let our competent and caring gentile colleagues take hospital calls on Shabbos while we take their Sundays etc.... But once we are there, it is not at all a bedieved to take care of people. It is doing the work of the Ribbono Shel Olam, and it should be done properly and with enthusiasm.
Now I am sure that many of you are looking forward to my next topic. I still have some more to say, and I was going to write a post about how the five principles of Rationalist Medical Halacha have been applied with my analysis of this issue. However, I am eager to start with a new topic, so I will leave that one out for now. So let me conclude with an invitation to say whatever you want in the comments. I begged you before to reserve judgement until I finished. Thank you so much for your patience, and now we can take our discussion into the comments section, and all holds are off, say whatever you think. The next topic will be abortion. Please give me some time to get my thoughts together, but I promise to do my best to start that subject asap.
The halacha, is clear, no matter what I am supposed to treat the patient, so does it really matter why? The bottom line is, yes, it does matter. If the reason why I am supposed to treat him is because I am afraid of the repercussions, then it is a bedieved. I should do everything I can to NOT be in the situation. This type of attitude really does make a difference to my patients. Maybe it is intangible, maybe it is unmeasurable, but it does matter. Being a doctor takes devotion, compassion, and empathy. To be an effective physician, you have to be more than a scientist, you actually have to care about your patients. More importantly, you have to believe in the importance and value of what you are doing!
Now that you have seen and read my analysis in this blog, you know that it is the Torah from which I derive the incredible value and importance of treating this person, this human being. And yes, this importance is such that it even transcends the prohibitions of shabbos. Once we have given all human beings that live in and take part in a moral and righteous society, the status of a ger toshav, we can apply the words of the Ramban (Sefer HaMitzvot Mitzvah 16 - my own translation)
That we have been commanded to support and maintain the lives of the ger toshav, to save him from his enemies, so that if he were drowning in a river or if he was stuck underneath rubble, that with all our strength we will involve ourselves in saving him, and if he were sick, we will heal him ... and this is considered pikuach nefesh that supersedes the Shabbos, and this is what God meant when He said in His Torah ..."When your brother is destitute ... and you shall support him and the ger toshav, and he shall live amongst you ..."
To say that this reflects the true sentiments of the Torah would be the understatement of the century, as anyone who has ever read the Bible would tell you.
This of course does not mean that Jewish doctors should go out of their way to be in the hospital on shabbos to work. Of course the Torah wants us to keep shabbos. Of course the Torah wants us to spend shabbos at rest with our family, in our shuls and communities. Of course we should try as much as we can to let our competent and caring gentile colleagues take hospital calls on Shabbos while we take their Sundays etc.... But once we are there, it is not at all a bedieved to take care of people. It is doing the work of the Ribbono Shel Olam, and it should be done properly and with enthusiasm.
Now I am sure that many of you are looking forward to my next topic. I still have some more to say, and I was going to write a post about how the five principles of Rationalist Medical Halacha have been applied with my analysis of this issue. However, I am eager to start with a new topic, so I will leave that one out for now. So let me conclude with an invitation to say whatever you want in the comments. I begged you before to reserve judgement until I finished. Thank you so much for your patience, and now we can take our discussion into the comments section, and all holds are off, say whatever you think. The next topic will be abortion. Please give me some time to get my thoughts together, but I promise to do my best to start that subject asap.
Friday, December 3, 2010
So What About Everyone Else?
Please allow me to briefly interrupt this series with a tefillah for the safety of our fellow Jews and human beings that are in harms way in the Haifa area as a result of this terrible forest fire. May the Ribbono Shel Olam comfort the grieving families of those who have perished, may He restore to good health those that have been injured, may He restore the lives of those who have lost their homes, property, and possessions, and may He give strength to those heroic people who are working to control the blaze, and restore life to the Haifa region. May all of us accept upon ourselves, in the zechus of the many victims of this fire, to be more compassionate in all of our dealings with all fellow human beings.
We are now going to continue with our analysis to the next obvious question. In our last post we essentially extended the obligation to save life on shabbos to non-Jews by two halachic mechanisms. However, both of these opinions are based on the assertion that today's gentiles are to be contrasted with the idol worshippers of the time of the Chazal. Whether we take the Meiri's approach that they are included in "Am Sheitcha beTorah uveMitzvos, or the approach of the other authorities that they are considered gerei toshav, our obligation to save their lives is dependent upon the fact that today's gentiles are part of a just and moral society.
This leads to the following question. According to the Meiri, a just and moral society is by definition a monotheistic society. According to the other authorities, to give a gentile the status of a ger toshav, he would need to keep the seven Noahide laws, including the Laws concerning Avodah Zarah. Let us assume that Christianity and Islam are monotheistic religions. (The question of Christianity and avodah zarah is a major issue, but not one that i plan on dealing with here in this blog, as almost all of the authorities that we have mentioned until now do not consider Christianity to be avodah Zarah, at least for gentiles. This can be due to their understanding of Christianity itself, or because Shituf is not prohibited for a non-Jew or some other rationale. In an article by David Berger, he has much difficulty accepting this, but we cannot deny the fact that the meiri and the other authorities explicitly did not consider Christianity to be avodah zarah).
So what about Hindus, Buddhists, other religions, and indeed even outright atheists that may still believe in and establish what we would otherwise consider moral and just societies? Can we desecrate the Shabbos to save their lives as well? After all, isn't belief in One God one of the seven basic Noahide Laws?
There are several ways to deal with this issue.
For the first approach I must give credit to a very thorough article by Rabbi David Berger, that you can access here. See page 26 and 27 of his article where he presents Moshe Halbertals analysis of the meiri as follows. It is clear from Halbertal's study of the Meiri that the reason why the Meiri felt that monotheism was necessary in order to treat gentiles equally was because non-monotheistic societies were corrupt and immoral. There are references in the Meiri that suggest that he held that philosophers, who may not believe in God, but whose philosophical beliefs lead them to lead moral and just lives, that they would also be considered equal to Jews in the same way as monotheistic gentiles that do profess belief in monotheism.
Remember that the Meiri himself did NOT base his shita on the principal of Ger Toshav (despite the fact that many authorities might have understood the Meiri that way). The principal of Ger Toshav would require the gentile to accept the idea of One Deity. However, it is plausible, based on Halbertals extensive research, that the meiri would not have required monotheism for a gentile to get the privileges that he extended to monotheists. Let me reiterate, that the Meiri did not believe that there could be such a thing as a society of simple masses that could be moral without a fundamental belief in a God that judges our actions and rewards and punishes our behavior accordingly. He did however allow for the possibility of individual philosophers that may lead moral lives despite a lack of monotheism. Had the Meiri been aware of modern non-Monotheistic societies that are moral and just, it is entirely plausible that he would have considered them to be worthy of all the privileges that he extended to the Muslims and Christians of his time.
I admit that this may seem at first glance to be a bit of an unjustified stretch of the Meiri's opinion. However, Rabbi Berger brings some strong support for this idea from an essay by HaRav Ahron Soloveitchik ZT'L.
Let me quote from Rabbi Berger's article:
A second possible approach would be the approach of HaRav TH Chajes, the "Maharatz Chajes" ZT'L. In his essay entitled Tiferes L'Yisrael he takes on this problem in a different way. Let me digress for a second to encourage anyone who believes strongly in the imperative to treat all human beings equally to \please read this essay in its original. If you ever wanted validation that your beliefs are well founded and well grounded in true Torah ideals - this essay will give you all the satisfaction that you need.
Remember that Rav Chajes held that today's gentiles are considered Gerei toshav, and therefore we are obligated to save their lives, even on shabbos. But how could someone who worships Avodah Zarah (assuming that the gentile were non Muslim and non Christian - Rav Chajes explicitly does not consider Christianity to be avodah zarah for a gentile) be considered a Ger toshav? So HaRav Chajes explains (my own translation):
If one carefully examines the words of Rav Y Emden that Rabbi Berger and Rav Soloveitchik brought, you will find that he seems to be saying exactly the same thoughts as HaRav Chajes, and he explicitly extends this to "full fledged idolators", and he applied the same principle of "minhag avoseihem b'yedeihem".
Let me add one more point, before I leave this post. Regardless of which of the above approaches we take, even if it can be argued that there may still be some individuals or societies "out there" in today's world who would not qualify for this protection, we would still be allowed to save their lives on shabbos due to Eyvah.
So we can safely conclude that the Torah teaches us that even on shabbos we are obligated to save the life of any human being that is part of a society that is moral and just. However societies that are evil and corrupt we are only obligated to save their lives due to Eyvah. I think that sounds a lot different than what we thought the Torah taught us before we embarked on this mission.
In my next post, I will handle the following question: How important is this obligation to save non-Jewish lives? As a physician, I am often told that I really should not be in the hospital on shabbos in the first place. In fact, some argue that it may not even be advisable to become a physician as it may one day require you to be in the hospital on shabbos. Is this true? Should I feel guilty about being there in the first place? Have a great shabbos, and I will IY'H return next week with more.
We are now going to continue with our analysis to the next obvious question. In our last post we essentially extended the obligation to save life on shabbos to non-Jews by two halachic mechanisms. However, both of these opinions are based on the assertion that today's gentiles are to be contrasted with the idol worshippers of the time of the Chazal. Whether we take the Meiri's approach that they are included in "Am Sheitcha beTorah uveMitzvos, or the approach of the other authorities that they are considered gerei toshav, our obligation to save their lives is dependent upon the fact that today's gentiles are part of a just and moral society.
This leads to the following question. According to the Meiri, a just and moral society is by definition a monotheistic society. According to the other authorities, to give a gentile the status of a ger toshav, he would need to keep the seven Noahide laws, including the Laws concerning Avodah Zarah. Let us assume that Christianity and Islam are monotheistic religions. (The question of Christianity and avodah zarah is a major issue, but not one that i plan on dealing with here in this blog, as almost all of the authorities that we have mentioned until now do not consider Christianity to be avodah Zarah, at least for gentiles. This can be due to their understanding of Christianity itself, or because Shituf is not prohibited for a non-Jew or some other rationale. In an article by David Berger, he has much difficulty accepting this, but we cannot deny the fact that the meiri and the other authorities explicitly did not consider Christianity to be avodah zarah).
So what about Hindus, Buddhists, other religions, and indeed even outright atheists that may still believe in and establish what we would otherwise consider moral and just societies? Can we desecrate the Shabbos to save their lives as well? After all, isn't belief in One God one of the seven basic Noahide Laws?
There are several ways to deal with this issue.
For the first approach I must give credit to a very thorough article by Rabbi David Berger, that you can access here. See page 26 and 27 of his article where he presents Moshe Halbertals analysis of the meiri as follows. It is clear from Halbertal's study of the Meiri that the reason why the Meiri felt that monotheism was necessary in order to treat gentiles equally was because non-monotheistic societies were corrupt and immoral. There are references in the Meiri that suggest that he held that philosophers, who may not believe in God, but whose philosophical beliefs lead them to lead moral and just lives, that they would also be considered equal to Jews in the same way as monotheistic gentiles that do profess belief in monotheism.
Remember that the Meiri himself did NOT base his shita on the principal of Ger Toshav (despite the fact that many authorities might have understood the Meiri that way). The principal of Ger Toshav would require the gentile to accept the idea of One Deity. However, it is plausible, based on Halbertals extensive research, that the meiri would not have required monotheism for a gentile to get the privileges that he extended to monotheists. Let me reiterate, that the Meiri did not believe that there could be such a thing as a society of simple masses that could be moral without a fundamental belief in a God that judges our actions and rewards and punishes our behavior accordingly. He did however allow for the possibility of individual philosophers that may lead moral lives despite a lack of monotheism. Had the Meiri been aware of modern non-Monotheistic societies that are moral and just, it is entirely plausible that he would have considered them to be worthy of all the privileges that he extended to the Muslims and Christians of his time.
I admit that this may seem at first glance to be a bit of an unjustified stretch of the Meiri's opinion. However, Rabbi Berger brings some strong support for this idea from an essay by HaRav Ahron Soloveitchik ZT'L.
Let me quote from Rabbi Berger's article:
I will get back to Rav Y Emden in a minute, but here we have non other than HaRav Ahron Soloveitchik saying exactly what we had just thought might be too much of a stretch to attribute to the Meiri. He clearly divorces the requirement of the seventh mitzvah (I do not mean to suggest that monotheism is the least important of the seven, just the seventh because according to haRav Soloveitchik's this approach it is not required for the purposes of being considered a moral person) of believing in One God from the equation necessary to be considered a good as opposed to an evil person. According to HaRav Soloveitchik, any gentile who is not evil, whether or not he is a monotheist. This makes our approach to the Meiri a little more palatable and real.The view that gentile behavior rather than theology determines how Jews should treat them is at least implicit in a relatively recent English essay by R. Ahron Soloveichik. He argues that love of other Jews must be blind, but love of gentiles, which he sees as an obligation expressed in the Rabbinic principle called “love of people” (ahavat ha-beriyyot), is grounded in the intellect and varies with the degree to whichgentiles lead moral lives and treat Jews decently. This position is spelled out more rigorously in his novellae to Sefer ha-Madda. Here he maintains that the discriminatory laws against non-Jews result only from their status as evildoers (their shem rasha). Non-Jews who behave righteously by following the six Noahide laws other than the prohibition against avodah zarah are not considered evil as long as their theological error was inherited, as the Talmud suggests about pagans in the diaspora, from their parents and is thus considered inadvertent or even a result of compulsion. It is worth quoting more fully R. Jacob Emden’s application of this talmudic dictum in a responsum to which R. Soloveichik alludes. “The Sages,” says the responsum, “declared, ‘The gentiles outside the Land of Israel are not worshippers of avodah zarah; rather, they follow the customs of their ancestors.’ Therefore their blood is precious in our eyes and would remain so even if we were ruling over them so that they were conquered under our control in our own land. After all, the Sages said—even with respect to full fledged idolaters--that one does not lower them into a pit. How much more is this so in the diaspora where we take refuge under their protection; we are, then, obligated to protect them with all our ability and save them from death and from any loss or damage to the point where even guarding their money should be a labor of love."(all italics are my own)
A second possible approach would be the approach of HaRav TH Chajes, the "Maharatz Chajes" ZT'L. In his essay entitled Tiferes L'Yisrael he takes on this problem in a different way. Let me digress for a second to encourage anyone who believes strongly in the imperative to treat all human beings equally to \please read this essay in its original. If you ever wanted validation that your beliefs are well founded and well grounded in true Torah ideals - this essay will give you all the satisfaction that you need.
Remember that Rav Chajes held that today's gentiles are considered Gerei toshav, and therefore we are obligated to save their lives, even on shabbos. But how could someone who worships Avodah Zarah (assuming that the gentile were non Muslim and non Christian - Rav Chajes explicitly does not consider Christianity to be avodah zarah for a gentile) be considered a Ger toshav? So HaRav Chajes explains (my own translation):
See the Ramban in Parshas Acharei on the pasuk "VeLo Taki HaAretz...." who writes that [worship of other gods] in conjunction ("beshituf") for non-Jews was only prohibited within the land of Israel ... and see Mor Uketziah by the Gaon R Y' Emden OC 224 the "shituf" is permitted to non-Jews ...and according to my opinion, This is what Chazal meant when they stated in Chulin 13b "The non Jews of outside Israel are worshipping "avodah zarah" in purity, as they are only following the customs of their forefathers (minhag avoseihem b'yedeihem") and see the Rambam in Peirush HaMishnayot first perek of Chulin on the Mishnah regarding ritual slaughter performed by a non-Jew who writes that there are two categories of Idol worshippers - those that are truly serving forms and talismans, and those that are simply following the customs of their forefathers ... and the intent of the Rambam is to say that [the second category of idol worshippers] truly intend to worship the God of Gods (Elokei Ha'elokim) but they simply mix into their worship other concepts...So according to HaRav Chajes, most other religious people today would really be considered monotheists for our purposes here, although they themselves may mix other foreign concepts into their worship. I am not an expert in comparative religion, so i do not know how far it is realistic to extend this concept in contemporary times. However, this is another way that this halachic authority extended the privileges of gerei toshav to all moral human societies.
If one carefully examines the words of Rav Y Emden that Rabbi Berger and Rav Soloveitchik brought, you will find that he seems to be saying exactly the same thoughts as HaRav Chajes, and he explicitly extends this to "full fledged idolators", and he applied the same principle of "minhag avoseihem b'yedeihem".
Let me add one more point, before I leave this post. Regardless of which of the above approaches we take, even if it can be argued that there may still be some individuals or societies "out there" in today's world who would not qualify for this protection, we would still be allowed to save their lives on shabbos due to Eyvah.
So we can safely conclude that the Torah teaches us that even on shabbos we are obligated to save the life of any human being that is part of a society that is moral and just. However societies that are evil and corrupt we are only obligated to save their lives due to Eyvah. I think that sounds a lot different than what we thought the Torah taught us before we embarked on this mission.
In my next post, I will handle the following question: How important is this obligation to save non-Jewish lives? As a physician, I am often told that I really should not be in the hospital on shabbos in the first place. In fact, some argue that it may not even be advisable to become a physician as it may one day require you to be in the hospital on shabbos. Is this true? Should I feel guilty about being there in the first place? Have a great shabbos, and I will IY'H return next week with more.
Thursday, December 2, 2010
Is the Meiri a Lone Figure in the Wilderness?
We summarized in our last post the opinion of the Meiri regarding how one is supposed to relate to gentiles in contemporary times. I will get back to developing the opinion of the Meiri as it would apply to different societies today. However, I first would like to review some other authorities that have either said similar ideas to the Meiri, or have come out in support of the Meiri's opinion.
Many authorities have used the concept of the ger toshav to describe our dealings with non-Jews in our day. I must credit R'Gil Student of the Torahmusings blog for bringing to my attention a teshuvah of Rabbi Nachum Rabinovich, of Maaleh Adumim. In this teshuvah (see Melumdei Milchamah Teshuvah 43) he writes of the obligation to save the life of an injured gentile on Shabbos. He differentiates between an injured terrorist and an ordinary non-Jew. According to him, an ordinary non-Jew who is a Christian or Muslim (we will deal with other religions and moral atheists later in the blog, I promise) would be considered a ger toshav. He establishes in the teshuvah that there is a mitzvah to save the life of a ger Toshav, at the same level as there is a mitzvah to save the life of a Jew.
His sources are Rav TH Chajes (the "Maharatz Chajes"), who held that modern day Christians and Muslims have the status of Gerei Toshav. He then brings conclusive proof from the Ramban in his comments on The Rambam Sefer HaMitzvos 16 that saving the life of a ger Toshav would supersede Shabbos. According to R' Rabinovich, the terrorist would not be considered a ger Toshav, by virtue of the fact that he is not a moral human being, and therefore should only be saved on shabbos due to Eyvah.
So this is a little bit of a different angle then the Meiri. According to the Meiri, non-Jews who live in a moral and just society are considered "Am she'Itcha be'Torah Uve'Mitzvos" and we are therefore obligated to save their lives on shabbos. According to R' Rabinovich, once we give contemporary gentiles the status of Gerei Toshav, we are obligated to save their lives on shabbos in accordance with the opinion of the Ramban (and other Rishonim including Rabbeinu Hillel, and the Ralbag as quoted in his teshuvah.)
Several other authorities have also used the Ger Toshav argument. One famous one is HaRav David Tzvi Hoffman, who explicitly writes that contemporary gentiles (he is referring to Christians) should be considered Gerei Toshav. Rav SR Hirsch (see here for example) writes similar ideas in many places, though I am not quite sure how much of it was apologetics. Rav Hoffman's words though, invoke a clearly defined halachic category of Ger Toshav, and thus do not sound like mere apologetics to me.
Rav Hirsch also brings the commentary of Rav Yaakov Emden on Avot 4:13, which strongly support the argument that Christians and Muslims that are moral and just should be considered Gerei Toshav. However, he does not actually take the plunge and explicitly write that they would have that halachic status. His words are stirring and offer us some strong backing. However, although it is possible that he would agree, I don't think I have enough evidence to claim that Rav Emden actually held that they would have the halachic status of Gerei Toshav.
Then there are those authorities who understood that the Meiri's position was based on the principle of Ger Toshav. Although it seems after Halbertal's study that this was probably not the opinion of the Meiri himself (as the Meiri's opinion was even more "liberal" than that), many great authorities believed that this was the basis of the Meiri's opinion. Chief among these authorities was none other than Harav Kook ZT'L (see Iggrot Reiyah vol. 1 page 99).
HaRav Kook writes a very interesting language, which even if this was all I had, it would have been enough for me. "HaIkkar" is his language (the primary or correct position - in my admittedly poor translation). He writes there that HaIkkar is like the opinion of the Meiri that ALL societies that are just and moral are coinsidered Geirim Toshavim .... see his letter in detail. Rabbi Isaac Herzog ZTL takes this approach as well in several places, equating modern gentiles with Geirei Toshav.
HaRav Ahron Soloveitchik ZT'L, in his book Logic of the Heart, Logic of the Mind see pages 139, 151 also invokes the Shita of the Meiri when discussing treating gentiles in our time. He uses the Meiri to develop his approach that differentiates between gentile societies based on their morality and behavior. This is somewhat similar to the approach of R' Rabinovich, and clearly HaRav Soloveitchik was relying on the opinion of the Meiri.
I also cannot leave this post without mentioning the now famous remark of the Seridei Aish, HaRav YY Weinberg ZT'L, who stated in one of his letters to Professor Atlas (see Torah Umaddah Journal 7 - 1997) that the Shita of the meiri should be adopted as normative halacha.
So although we must admit that the Meiri is a minority halachic opinion, we have now reviewed many well respected halachic authorities who either agreed that the Meiri's opinion should be adopted as halacha, or came to similar conclusions as the Meiri with slightly different reasoning (the ger toshav argument).
We are far from finished, in my next post, I will deal with the issue of the opinion of the Meiri and how it may relate to gentiles that are not Muslim or Christian, but may have a moral and just society.
Many authorities have used the concept of the ger toshav to describe our dealings with non-Jews in our day. I must credit R'Gil Student of the Torahmusings blog for bringing to my attention a teshuvah of Rabbi Nachum Rabinovich, of Maaleh Adumim. In this teshuvah (see Melumdei Milchamah Teshuvah 43) he writes of the obligation to save the life of an injured gentile on Shabbos. He differentiates between an injured terrorist and an ordinary non-Jew. According to him, an ordinary non-Jew who is a Christian or Muslim (we will deal with other religions and moral atheists later in the blog, I promise) would be considered a ger toshav. He establishes in the teshuvah that there is a mitzvah to save the life of a ger Toshav, at the same level as there is a mitzvah to save the life of a Jew.
His sources are Rav TH Chajes (the "Maharatz Chajes"), who held that modern day Christians and Muslims have the status of Gerei Toshav. He then brings conclusive proof from the Ramban in his comments on The Rambam Sefer HaMitzvos 16 that saving the life of a ger Toshav would supersede Shabbos. According to R' Rabinovich, the terrorist would not be considered a ger Toshav, by virtue of the fact that he is not a moral human being, and therefore should only be saved on shabbos due to Eyvah.
So this is a little bit of a different angle then the Meiri. According to the Meiri, non-Jews who live in a moral and just society are considered "Am she'Itcha be'Torah Uve'Mitzvos" and we are therefore obligated to save their lives on shabbos. According to R' Rabinovich, once we give contemporary gentiles the status of Gerei Toshav, we are obligated to save their lives on shabbos in accordance with the opinion of the Ramban (and other Rishonim including Rabbeinu Hillel, and the Ralbag as quoted in his teshuvah.)
Several other authorities have also used the Ger Toshav argument. One famous one is HaRav David Tzvi Hoffman, who explicitly writes that contemporary gentiles (he is referring to Christians) should be considered Gerei Toshav. Rav SR Hirsch (see here for example) writes similar ideas in many places, though I am not quite sure how much of it was apologetics. Rav Hoffman's words though, invoke a clearly defined halachic category of Ger Toshav, and thus do not sound like mere apologetics to me.
Rav Hirsch also brings the commentary of Rav Yaakov Emden on Avot 4:13, which strongly support the argument that Christians and Muslims that are moral and just should be considered Gerei Toshav. However, he does not actually take the plunge and explicitly write that they would have that halachic status. His words are stirring and offer us some strong backing. However, although it is possible that he would agree, I don't think I have enough evidence to claim that Rav Emden actually held that they would have the halachic status of Gerei Toshav.
Then there are those authorities who understood that the Meiri's position was based on the principle of Ger Toshav. Although it seems after Halbertal's study that this was probably not the opinion of the Meiri himself (as the Meiri's opinion was even more "liberal" than that), many great authorities believed that this was the basis of the Meiri's opinion. Chief among these authorities was none other than Harav Kook ZT'L (see Iggrot Reiyah vol. 1 page 99).
HaRav Kook writes a very interesting language, which even if this was all I had, it would have been enough for me. "HaIkkar" is his language (the primary or correct position - in my admittedly poor translation). He writes there that HaIkkar is like the opinion of the Meiri that ALL societies that are just and moral are coinsidered Geirim Toshavim .... see his letter in detail. Rabbi Isaac Herzog ZTL takes this approach as well in several places, equating modern gentiles with Geirei Toshav.
HaRav Ahron Soloveitchik ZT'L, in his book Logic of the Heart, Logic of the Mind see pages 139, 151 also invokes the Shita of the Meiri when discussing treating gentiles in our time. He uses the Meiri to develop his approach that differentiates between gentile societies based on their morality and behavior. This is somewhat similar to the approach of R' Rabinovich, and clearly HaRav Soloveitchik was relying on the opinion of the Meiri.
I also cannot leave this post without mentioning the now famous remark of the Seridei Aish, HaRav YY Weinberg ZT'L, who stated in one of his letters to Professor Atlas (see Torah Umaddah Journal 7 - 1997) that the Shita of the meiri should be adopted as normative halacha.
So although we must admit that the Meiri is a minority halachic opinion, we have now reviewed many well respected halachic authorities who either agreed that the Meiri's opinion should be adopted as halacha, or came to similar conclusions as the Meiri with slightly different reasoning (the ger toshav argument).
We are far from finished, in my next post, I will deal with the issue of the opinion of the Meiri and how it may relate to gentiles that are not Muslim or Christian, but may have a moral and just society.
Tuesday, November 30, 2010
A Different Halachic Approach
Please forgive me if I delay a few days between posts. Sometimes my work keeps me bogged down and makes it difficult for me to keep up with the blog every day.
The basis and foundation of my approach to treating a goy on shabbos is the famous shita of the Meiri. Many of you are probably familiar with the Meiri's opinions as they relate to the halachic status of non-Jews. However, you may not be aware of the full extent of his opinions, and the extent to which many later authorities have subscribed to his opinions. When i learned the Meiri in yeshiva, I was under the impression that his words were just apologetics that were meant to calm relations with the goyim, but that in reality they were not halachically important and that they were not meant to be taken seriously.
However, while I searched for answers to the problems that were bothering me, I not only found out that the Meiri's opinions were not apologetics at all, but I discovered that they are a comprehensive and complete philosophy of how to learn the sugyos relating to the treatment of goyim in halacha. I also learned that many Acharonim, and even some rishonim also ascribed to his views. I also learned that many recent halachic authorities actually wrote that the Meiri's derech should be considered Halachah Le'maaseh, even though his opinion may have been a minority opinion at the time that he wrote them.
So I beg you to be patient and let me present my case, which will probably take a few posts. Especially if you have preconceived ideas about the Meiri, please hold back from comment until you hear everything I have to say. Then all bets are off and say as you wish.
First, let me describe what the Meiri held. According to the Meiri, the contemporary gentiles of his day (basically Muslims and Christians) are all considered "Baalei haDat" - people of religion. The Meiri considered these Baalei haDat to be different from the non-Jews referred to in most of Chazal - who were idol worshippers that had no religion (at least not what Chazal would have considered a religion).
The Meiri divides the laws that concern our dealings with gentiles into three basic categories. The first category regards the laws of business interaction with non-Jews. This refers mostly to things that are prohibited due to fear that the gentile would use the profits for idol worship. This category the Meiri held did not apply at all to his contemporary gentiles. The second category deals with all halachic distinctions between Jews and non-Jews. This includes the obligation to save a non-Jewish life (including on Shabbat), the obligation to return his lost object, the death penalty for killing a human being (which the Meiri held applied to non-Jews as well) to give him charity and many more such laws. In this category, the Meiri held that his contemporary gentiles were equal to Jews on all levels. The third category deals with halachot meant to keep Jews from intermingling (and intermarrying) with gentiles. This includes things like a Gentile's wine, milk, bread and so on. In these halachot, the Meiri did not distinguish between his contemporary gentiles,and from the time of the gemara.
Lest one believe that the Meiri was simply apologetics, I challenge you to learn through the Meiri and consider that his comments are consistent throughout his commentary on Shas. Repeatedly his points are emphasized and reiterated, and he clearly developed his shita thoroughly and comprehensively. I will be bringing many sources as we progress through this blog, but let me start with HaRav Eliezer Waldenberg ZT'l (author of the Tzitz Eliezer) who writes in a letter published in "Bein Yisrael le-Ammim" p16-17 that it is implausible to argue that his entire approach to shas was simply constructed out of fear of the censors. He also states that we should use the Meiri as a "Makor Beit Av" (roughly translated as - "a conceptual building block" - my admittedly poor translation) when considering questions for dealing with gentiles in our times.
To assume that it was simply fear of the censors that drove the Meiri to formulate his extensive theories will become less and less plausible as we continue our discussion.
I owe much of my understanding of the Meiri to a great book called "Bein Torah leChochmah" by Moshe Halbertal. It is worthwhile reading for anyone interested in learning more about the Meiri.
Probably the most interesting thing I learned from Halbertal's study is how he derives the reasoning behind the Meiri. It is clear from his study that the Meiri that he felt that anyone who did not have a "Dat" was certainly someone who would not be bound by basic morality and justice. Halbertal proves that according to the Meiri, a society of Ba'alei Dat is a society of morals and justice, whereas a society without "Darchei HaDat" is one that is evil and corrupt. This is a very important point, and it is one that we will come back to later in this blog discussion. Any society that is moral and just according to the Meiri would have the same status as Jews regarding these types of laws.
For example, the Meiri goes as far as saying that those that are "gedurim beDarchei Hadat would be considered "Am She'Itcha BeTorah uveMitzvot". (see Bava Metziah 59a where the gemara learns that one is only obligated to retuirn the lost object of someone included in the pasukl, lo Tonu Ish et Amito - Am She'Itcha B'Torah UVe'Mitzvot, which the Meiri learns explicitly includes non-Jews, as opposed to learning that it is excluding them!)
There is much to write about the Meiri,and I promise I will write more, but I first want to deal with an important issue. Is the Meiri simply a lone voice in the wilderness? Can we rely on a lone opinion in formulating halacha
Comment as you wish, but I beg you to hang in there, because there is a lot more to say.
The basis and foundation of my approach to treating a goy on shabbos is the famous shita of the Meiri. Many of you are probably familiar with the Meiri's opinions as they relate to the halachic status of non-Jews. However, you may not be aware of the full extent of his opinions, and the extent to which many later authorities have subscribed to his opinions. When i learned the Meiri in yeshiva, I was under the impression that his words were just apologetics that were meant to calm relations with the goyim, but that in reality they were not halachically important and that they were not meant to be taken seriously.
However, while I searched for answers to the problems that were bothering me, I not only found out that the Meiri's opinions were not apologetics at all, but I discovered that they are a comprehensive and complete philosophy of how to learn the sugyos relating to the treatment of goyim in halacha. I also learned that many Acharonim, and even some rishonim also ascribed to his views. I also learned that many recent halachic authorities actually wrote that the Meiri's derech should be considered Halachah Le'maaseh, even though his opinion may have been a minority opinion at the time that he wrote them.
So I beg you to be patient and let me present my case, which will probably take a few posts. Especially if you have preconceived ideas about the Meiri, please hold back from comment until you hear everything I have to say. Then all bets are off and say as you wish.
First, let me describe what the Meiri held. According to the Meiri, the contemporary gentiles of his day (basically Muslims and Christians) are all considered "Baalei haDat" - people of religion. The Meiri considered these Baalei haDat to be different from the non-Jews referred to in most of Chazal - who were idol worshippers that had no religion (at least not what Chazal would have considered a religion).
The Meiri divides the laws that concern our dealings with gentiles into three basic categories. The first category regards the laws of business interaction with non-Jews. This refers mostly to things that are prohibited due to fear that the gentile would use the profits for idol worship. This category the Meiri held did not apply at all to his contemporary gentiles. The second category deals with all halachic distinctions between Jews and non-Jews. This includes the obligation to save a non-Jewish life (including on Shabbat), the obligation to return his lost object, the death penalty for killing a human being (which the Meiri held applied to non-Jews as well) to give him charity and many more such laws. In this category, the Meiri held that his contemporary gentiles were equal to Jews on all levels. The third category deals with halachot meant to keep Jews from intermingling (and intermarrying) with gentiles. This includes things like a Gentile's wine, milk, bread and so on. In these halachot, the Meiri did not distinguish between his contemporary gentiles,and from the time of the gemara.
Lest one believe that the Meiri was simply apologetics, I challenge you to learn through the Meiri and consider that his comments are consistent throughout his commentary on Shas. Repeatedly his points are emphasized and reiterated, and he clearly developed his shita thoroughly and comprehensively. I will be bringing many sources as we progress through this blog, but let me start with HaRav Eliezer Waldenberg ZT'l (author of the Tzitz Eliezer) who writes in a letter published in "Bein Yisrael le-Ammim" p16-17 that it is implausible to argue that his entire approach to shas was simply constructed out of fear of the censors. He also states that we should use the Meiri as a "Makor Beit Av" (roughly translated as - "a conceptual building block" - my admittedly poor translation) when considering questions for dealing with gentiles in our times.
To assume that it was simply fear of the censors that drove the Meiri to formulate his extensive theories will become less and less plausible as we continue our discussion.
I owe much of my understanding of the Meiri to a great book called "Bein Torah leChochmah" by Moshe Halbertal. It is worthwhile reading for anyone interested in learning more about the Meiri.
Probably the most interesting thing I learned from Halbertal's study is how he derives the reasoning behind the Meiri. It is clear from his study that the Meiri that he felt that anyone who did not have a "Dat" was certainly someone who would not be bound by basic morality and justice. Halbertal proves that according to the Meiri, a society of Ba'alei Dat is a society of morals and justice, whereas a society without "Darchei HaDat" is one that is evil and corrupt. This is a very important point, and it is one that we will come back to later in this blog discussion. Any society that is moral and just according to the Meiri would have the same status as Jews regarding these types of laws.
For example, the Meiri goes as far as saying that those that are "gedurim beDarchei Hadat would be considered "Am She'Itcha BeTorah uveMitzvot". (see Bava Metziah 59a where the gemara learns that one is only obligated to retuirn the lost object of someone included in the pasukl, lo Tonu Ish et Amito - Am She'Itcha B'Torah UVe'Mitzvot, which the Meiri learns explicitly includes non-Jews, as opposed to learning that it is excluding them!)
There is much to write about the Meiri,and I promise I will write more, but I first want to deal with an important issue. Is the Meiri simply a lone voice in the wilderness? Can we rely on a lone opinion in formulating halacha
Comment as you wish, but I beg you to hang in there, because there is a lot more to say.
Saturday, November 27, 2010
Does it really matter why you can treat a gentile on shabbos?
In our last post we reviewed the halachos of treating a goy on shabbos. Now let me change gears a little bit and talk about my experience in the "real world". If you recall my first post on this topic, I discussed the moral dilemma that I have encountered since I have become a physician. Let me now describe this dilemma.
I have the very special privilege of spending my entire professional life taking care of people. I am very fortunate to be able to use my skills healing and helping people every day. I believe in the depths of my heart that what I do every day is the work of the Ribbono Shel Olam.
I have always made a special effort to make sure that as much as possible I spend shabbos where I belong, at home with my family, in shul and in my community. Most of the time, I am able to spend shabbos without having to see patients as a physican. However, the nature of my occupation is such that I am sometimes called upon to treat people on shabbos. I know the basic parameters of what is muttar and what is assur, although I am sure there is still a lot for me to learn. I am not at all perfect, but I think I would be telling the truth if I said that I do the best I can.
It really matters to me that not only am I doing what is halachically permissible, but that I am doing the right thing. It is very challenging and difficult to spend long and stressful hours with complicated issues, especially when I would rather be home enjoying a good cholent. However, I still do it in the belief that I am needed, that it is important, and if halacha permits it, it must be what the Ribbono Shel Olam wants from me. More so, when I look my patients in the eye, when I see their appreciation for what I am doing for them, I get validation that this is indeed the right thing.
Many Orthodox Jews might argue that it might not be the right thing to choose a professional situation which forces one to need to work on shabbos. This is a legitimate issue, which I will try to deal with at another time. For now, please allow me to assume that in some circumstances it is inevitable that a God fearing Orthodox Jewish doctor will end up treating patients on Shabbos.
Now let us contrast two hypothetical patients in pain, a Jewish one, and a non-Jew. It is shabbos afternoon, and i am called to the hospital to take care of both. I have to drive to the hospital, which is painful to begin with, but i tell myself ... "It is a mitzvah to save a life. You can drive now."
I see the patients in their beds. At the Jew's bedside, I think to myself ... "It is a mitzvah to take care of this person. I can transgress the Shabbos because his/her life is more important than Shabbos. After all, doesn't the Torah say ... vechai bahem?" At the non-Jews bedside I think to myself ... "Well if i don't save his life, what would the goyim think!? The nurses will think I am immoral .. you helped the Jew but not him!! Imagine what they would write about me in the newspapers tomorrow!! I guess I have to treat him to!"
The following thoughts, in one version or other then flows through my soul. Dear Ribbono Shel Olam, I cannot act this way to a fellow human being. I cannot watch a person suffering and think that I am only helping him because of some vague sort of fear of reprisal. This is not the Torah I accepted at Sinai. I accepted a Torah that was Deracheha Darchei Noam. I will help this gentile because I am a compassionate human being and because i know that it is the right thing to do. Please God, show me a better way. Show me the right thing. Help me learn the halachos once again so that i might learn Your true intent. It cannot possibly be that I am only alowed to do this as some sort of b'dieved.
So to answer my question, does it really matter why you can treat a goy on shabbos? Absolutely! Of course it matters. It certainly matters to me!
If you are thinking something like the following, "who cares why you are allowed, the bottom line is the halacha. The halacha says it is OK, why do you care what the reason is!" If this is good enough for you, then I am not writing this blog for you. You do not need what I have to offer, so don't even bother reading it. But if you understand me and it does bother you as well, then please listen further.
So hang in there dear blog followers, in my next post, I will start to show you another halachic way. One that is founded on great Halachists of previous centuries, one that is firmly grounded in the Torah that we accepted at Sinai, but one that sounds very different from what you may read in most contemporary "halacha guidebooks". It will be a Torah way that I can live with and live by, and I hope that you will agree.
If I sound tantalizing and the suspense is building, that is my intent. I hope that it entices you to hang in there for the ride to come.
I have the very special privilege of spending my entire professional life taking care of people. I am very fortunate to be able to use my skills healing and helping people every day. I believe in the depths of my heart that what I do every day is the work of the Ribbono Shel Olam.
I have always made a special effort to make sure that as much as possible I spend shabbos where I belong, at home with my family, in shul and in my community. Most of the time, I am able to spend shabbos without having to see patients as a physican. However, the nature of my occupation is such that I am sometimes called upon to treat people on shabbos. I know the basic parameters of what is muttar and what is assur, although I am sure there is still a lot for me to learn. I am not at all perfect, but I think I would be telling the truth if I said that I do the best I can.
It really matters to me that not only am I doing what is halachically permissible, but that I am doing the right thing. It is very challenging and difficult to spend long and stressful hours with complicated issues, especially when I would rather be home enjoying a good cholent. However, I still do it in the belief that I am needed, that it is important, and if halacha permits it, it must be what the Ribbono Shel Olam wants from me. More so, when I look my patients in the eye, when I see their appreciation for what I am doing for them, I get validation that this is indeed the right thing.
Many Orthodox Jews might argue that it might not be the right thing to choose a professional situation which forces one to need to work on shabbos. This is a legitimate issue, which I will try to deal with at another time. For now, please allow me to assume that in some circumstances it is inevitable that a God fearing Orthodox Jewish doctor will end up treating patients on Shabbos.
Now let us contrast two hypothetical patients in pain, a Jewish one, and a non-Jew. It is shabbos afternoon, and i am called to the hospital to take care of both. I have to drive to the hospital, which is painful to begin with, but i tell myself ... "It is a mitzvah to save a life. You can drive now."
I see the patients in their beds. At the Jew's bedside, I think to myself ... "It is a mitzvah to take care of this person. I can transgress the Shabbos because his/her life is more important than Shabbos. After all, doesn't the Torah say ... vechai bahem?" At the non-Jews bedside I think to myself ... "Well if i don't save his life, what would the goyim think!? The nurses will think I am immoral .. you helped the Jew but not him!! Imagine what they would write about me in the newspapers tomorrow!! I guess I have to treat him to!"
The following thoughts, in one version or other then flows through my soul. Dear Ribbono Shel Olam, I cannot act this way to a fellow human being. I cannot watch a person suffering and think that I am only helping him because of some vague sort of fear of reprisal. This is not the Torah I accepted at Sinai. I accepted a Torah that was Deracheha Darchei Noam. I will help this gentile because I am a compassionate human being and because i know that it is the right thing to do. Please God, show me a better way. Show me the right thing. Help me learn the halachos once again so that i might learn Your true intent. It cannot possibly be that I am only alowed to do this as some sort of b'dieved.
So to answer my question, does it really matter why you can treat a goy on shabbos? Absolutely! Of course it matters. It certainly matters to me!
If you are thinking something like the following, "who cares why you are allowed, the bottom line is the halacha. The halacha says it is OK, why do you care what the reason is!" If this is good enough for you, then I am not writing this blog for you. You do not need what I have to offer, so don't even bother reading it. But if you understand me and it does bother you as well, then please listen further.
So hang in there dear blog followers, in my next post, I will start to show you another halachic way. One that is founded on great Halachists of previous centuries, one that is firmly grounded in the Torah that we accepted at Sinai, but one that sounds very different from what you may read in most contemporary "halacha guidebooks". It will be a Torah way that I can live with and live by, and I hope that you will agree.
If I sound tantalizing and the suspense is building, that is my intent. I hope that it entices you to hang in there for the ride to come.
Friday, November 26, 2010
The Halachic Background of Treating a Goy on Shabbos
We need to start with a review of the basic halachos of treating a non-Jew on shabbos. At this point, our assumption will be that anyone who is not Jewish would be considered a non-Jew for halachic purposes. While this may sound obvious at this point, you will soon see that it is not obvious at all. Today we will summarize the sugyah, and delineate the basic halachic opinions regarding the matter of treating a non-Jew on shabbos.
First, let us begin with the primary sources. The most important is the gemara in Avodah Zara 26a, "Rav Yosef thought to say that for a Jew (midwife) to deliver an idol worshipers baby on shabbos for pay should be permitted due to eyvah (a fear of causing hatred among non Jews towards Jews) Abaye responded, She can say to her, for us that keep shabbos we can desecrate shabbos, but for you who do not keep shabbos we do not desecrate shabbos".
There are several issues which the poskim try to clarify from this gemara, and for the sake of clarity, let me summarize the issues.
1) It seems that the maskanah of the gemara is that one is NOT allowed to treat gentiles on shabbos because of Abaye's statement that there is no Eyvah. If one were to argue that in modern times this "explanation" of Abaye won't work anymore, does Rav Yosef's heter of Eyvah still apply?
2) If Rav Yosef's heter of Eyvah applies nowadays, on what severity of issur does it apply? There are three possibilities.
a) It could be that Eyvah cannot supersede ANY prohibition, not even a rabbinic decree. If this is true, then Rav Yosef only meant that Eyvah allows one to treat a gentile at all. This would be because the gemara elsewhere prohibits a Jew from treating a gentile who worships avodah zarah. If this is true, rav yosef's heter was only meant to permit transgressing this specific decree.
b) Alternatively, it could be that Eyvah is only meant to permit transgressing Issurei Derabbanan, but not issurim of Torah origin
c) Or maybe Eyvah can even allow transgressing an issur de'oraysah.
As you can imagine, there is a lot of literature on this subject, but allow me to review the basics.
1) The Ritva and the Ran on that gemara take the position that Eyvah cannot even allow an issur derabbanan. The Bais Yosef brings a famous argument between the Ramban and Rashba vs. Rabbeinu Yonah regarding the permissibility of giving infertility treatments to a gentile. The Ramban and Rashba allowed it due to Eyvah, whereas the rabbeinu Yonah was famously very critical. It would seem that the argument revolved around the heter of Eyvah for treating a goy, but none of these authorities approved of using this heter even for issurei derabbanan.
2) Tosfos on that gemara explicitly allows the heter of eyvah for issurei derabbanan but not for issurei de'oraysah. Many acharonim seem to take up this position including the Tosfos Shabbos, and the Chassam Sofer.
3) No posek seriously entertains the possibility that eyvah would allow transgressing an issur de'Oraysah. However, several poskim, including the Maharik, and the Tiferes Yisrael cleverly use the heter of Eyvah to allow transgressing an Issur Deoraysah through an interesting "halachic trick". They use the following argument. Since the Jew is only doing the issur de'Oraysah because he is afraid of causing hatred (eyvah) that makes the melachah that he is doing an melacha she'aynah tz'richa l'gufa (work that is done for a purpose OTHER than accomplishing the work itself) . Therefore it is not really an issur deOraysah, and can be done mishum eyvah.
As we come to more modern times, there are several Poskim that must be mentioned. The Chassam Sofer (YD Siman 131) has a classic teshuva where he allows transgressing an issur deoraysah to take care of a non-Jew when there is reason to be concerned that the Jew's life would be in danger if he does not treat the Goy. This is kind of like what I sometimes call "Super-Eyvah". The Divrei Chaim of Tzanz (OC Chelek 2 Siman 25) writes, "It is the custom of (Jewish) doctors to transgress Isurei De'Oraysah on shabbos..and I heard that it was a decree of the Council of Four Lands that allowed them to do this." The obvious question is, how could the Council decide to allow an issur deroysah by decree? The answers given to this problem include the clever explanation of the Maharik, or the explanation of the Chassam Sofer of "super-eyvah".
We can't leave this part of the discussion without mentioning the Mishna Berura (Siman 120 Seif Katan 8), who sharply criticizes Jewish doctors who transgress Issurim De'oraysah while taking care of non-Jews on Shabbos. He writes "They are completely intentional transgressors of the sabbath (mechallelei Shabbos gemurim hem b'mazid) May God protect us!" So many times, a yeshiva bachur who learns the Mishna Berura and thinks he knows everything has come to me with this accusation, "haven't you seen the mishna berura! How could you...." Whatever. Tell them to go back to yeshiva and learn the sugyah properly.
To finalize this post. Virtually all important modern poskim agree (Rav Moshe Feinstein ZTL, Rav SZ Aurbach ZTL, Rav Waldenberg ZTL, Rav O Yossef Shlita and numerous others) that when push comes to shove, a Jewish physician can violate even an issur de'Oraysah to save a non-Jewish life. They come to this conclusion using some combination of the Chassam Sofer, Maharik, and Divrei Chaim. Each posek has his own stipulations etc... but the bottom line is about the same. Their advice is, try not to be there on shabbos, but if you're the only one available, do what needs to be done.
Now that we've made this clear, we can go on with our discussion in my next post. there I will tackle the following question, "If you can treat a gentile on shabbos anyway, does it really matter why you are allowed?"
First, let us begin with the primary sources. The most important is the gemara in Avodah Zara 26a, "Rav Yosef thought to say that for a Jew (midwife) to deliver an idol worshipers baby on shabbos for pay should be permitted due to eyvah (a fear of causing hatred among non Jews towards Jews) Abaye responded, She can say to her, for us that keep shabbos we can desecrate shabbos, but for you who do not keep shabbos we do not desecrate shabbos".
There are several issues which the poskim try to clarify from this gemara, and for the sake of clarity, let me summarize the issues.
1) It seems that the maskanah of the gemara is that one is NOT allowed to treat gentiles on shabbos because of Abaye's statement that there is no Eyvah. If one were to argue that in modern times this "explanation" of Abaye won't work anymore, does Rav Yosef's heter of Eyvah still apply?
2) If Rav Yosef's heter of Eyvah applies nowadays, on what severity of issur does it apply? There are three possibilities.
a) It could be that Eyvah cannot supersede ANY prohibition, not even a rabbinic decree. If this is true, then Rav Yosef only meant that Eyvah allows one to treat a gentile at all. This would be because the gemara elsewhere prohibits a Jew from treating a gentile who worships avodah zarah. If this is true, rav yosef's heter was only meant to permit transgressing this specific decree.
b) Alternatively, it could be that Eyvah is only meant to permit transgressing Issurei Derabbanan, but not issurim of Torah origin
c) Or maybe Eyvah can even allow transgressing an issur de'oraysah.
As you can imagine, there is a lot of literature on this subject, but allow me to review the basics.
1) The Ritva and the Ran on that gemara take the position that Eyvah cannot even allow an issur derabbanan. The Bais Yosef brings a famous argument between the Ramban and Rashba vs. Rabbeinu Yonah regarding the permissibility of giving infertility treatments to a gentile. The Ramban and Rashba allowed it due to Eyvah, whereas the rabbeinu Yonah was famously very critical. It would seem that the argument revolved around the heter of Eyvah for treating a goy, but none of these authorities approved of using this heter even for issurei derabbanan.
2) Tosfos on that gemara explicitly allows the heter of eyvah for issurei derabbanan but not for issurei de'oraysah. Many acharonim seem to take up this position including the Tosfos Shabbos, and the Chassam Sofer.
3) No posek seriously entertains the possibility that eyvah would allow transgressing an issur de'Oraysah. However, several poskim, including the Maharik, and the Tiferes Yisrael cleverly use the heter of Eyvah to allow transgressing an Issur Deoraysah through an interesting "halachic trick". They use the following argument. Since the Jew is only doing the issur de'Oraysah because he is afraid of causing hatred (eyvah) that makes the melachah that he is doing an melacha she'aynah tz'richa l'gufa (work that is done for a purpose OTHER than accomplishing the work itself) . Therefore it is not really an issur deOraysah, and can be done mishum eyvah.
As we come to more modern times, there are several Poskim that must be mentioned. The Chassam Sofer (YD Siman 131) has a classic teshuva where he allows transgressing an issur deoraysah to take care of a non-Jew when there is reason to be concerned that the Jew's life would be in danger if he does not treat the Goy. This is kind of like what I sometimes call "Super-Eyvah". The Divrei Chaim of Tzanz (OC Chelek 2 Siman 25) writes, "It is the custom of (Jewish) doctors to transgress Isurei De'Oraysah on shabbos..and I heard that it was a decree of the Council of Four Lands that allowed them to do this." The obvious question is, how could the Council decide to allow an issur deroysah by decree? The answers given to this problem include the clever explanation of the Maharik, or the explanation of the Chassam Sofer of "super-eyvah".
We can't leave this part of the discussion without mentioning the Mishna Berura (Siman 120 Seif Katan 8), who sharply criticizes Jewish doctors who transgress Issurim De'oraysah while taking care of non-Jews on Shabbos. He writes "They are completely intentional transgressors of the sabbath (mechallelei Shabbos gemurim hem b'mazid) May God protect us!" So many times, a yeshiva bachur who learns the Mishna Berura and thinks he knows everything has come to me with this accusation, "haven't you seen the mishna berura! How could you...." Whatever. Tell them to go back to yeshiva and learn the sugyah properly.
To finalize this post. Virtually all important modern poskim agree (Rav Moshe Feinstein ZTL, Rav SZ Aurbach ZTL, Rav Waldenberg ZTL, Rav O Yossef Shlita and numerous others) that when push comes to shove, a Jewish physician can violate even an issur de'Oraysah to save a non-Jewish life. They come to this conclusion using some combination of the Chassam Sofer, Maharik, and Divrei Chaim. Each posek has his own stipulations etc... but the bottom line is about the same. Their advice is, try not to be there on shabbos, but if you're the only one available, do what needs to be done.
Now that we've made this clear, we can go on with our discussion in my next post. there I will tackle the following question, "If you can treat a gentile on shabbos anyway, does it really matter why you are allowed?"
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