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6) If a family has limited funds, the Gemara (Kiddushin 29b) grapples whether the son or father enjoys priority as to who should be supported in his Torah learning:
The Sages taught: If one wishes to study Torah himself and his son also wants to study, he takes precedence over his son. Rabbi Yehuda says: If his son is diligent and sharp, and his study will endure, his son takes precedence over him. This is like that anecdote which is told about Rav Ya’akov, son of Rav Aḥa bar Ya’akov, whose father sent him to Abaye to study Torah. When the son came home, his father saw that his studies were not sharp, as he was insufficiently bright. Rav Aḥa bar Ya’akov said to his son: I am preferable to you, and it is better that I go and study. Therefore, you sit and handle the affairs of the house so that I can go and study.
7) Similarly, this Gemara records a Machlokes as to which Mitzva enjoys priority – Pidyon HaBen or Aliya L’Regel
“Tanu Rabanan Lefdot Et Beno VeLa’alot LeRegel Podeh Et Beno Ve’Achar Kach Oleh LaRegel Rabi Yehudah Omer Oleh LaRegel Ve’Achar Kach Podeh Et Beno SheZo Mitzvah Overet VeZo Mitzvah She’Einah Overet,” “A Beraita says - If one has the opportunity to redeem his son and travel for the Regel, he should redeem his son and then travel for the Regel. Rabi Yehuda says he should travel first, because it is a timed Mitzvah”.
8) We find the Mishna (Gittin 59b) records a Takana so that water is distributed peacefully amongst field owners:
The Sages enacted that the pit that is nearest to the irrigation channel that supplies water to several pits or fields is filled first on account of the ways of peace. They established a fixed order for the irrigation of fields, so that people would not quarrel over who is given precedence[2].
The Gemara (60b) discusses the details of this Takana at far greater length. The lesson that emerges from the incident involving Abaye is the problematic nature of a situation of Kol D’alim Gevar, the mightier one prevails[3]. TABC Talmidim Yossi Sherman and Tzvi Meister note the very problematic nature of a Kol D’alim Gevar situation in regards to distributing scarce medical resources.
We learned in the mishna that the Sages enacted that the pit that is nearest to the irrigation channel that supplies water to several pits or fields is filled first on account of the ways of peace. This teaches that the party who is nearest to the water’s source enjoys first rights, and it supports Shmuel’s opinion and is difficult for Rav. Shmuel interpreted the mishna in accordance with the opinion of Rav: The mishna refers here to an irrigation channel that passes the mouth of the pit, so that the pit fills with water on its own, even without damming.
The Gemara asks: If so, what is the purpose of stating this? It is obvious. The Gemara answers: Lest you say that the owners of the other fields can say to the owner of the pit: Dam your pit as well so that water not enter it, and irrigate your fields in proportion [hindeza], just like the rest of us. The mishna therefore teaches us that the owner of the pit is not required to do this, and consequently his pit is filled first.
TABC Talmid Yossi Sherman observes that just like how much water one receives is not proportionate between people, it is possible that people who received the first dose of the vaccine are entitled to receive the second dose before others get their first dose.
Rav Huna bar Taḥalifa said: Now that the halakha was stated neither in accordance with the opinion of this Sage, Rav, nor in accordance with the opinion of that Sage, Shmuel, whoever is stronger prevails. Since the halakha has not been decided, the court refuses to judge the case and leaves the claimants to settle the matter themselves, in the hope that the rightful party will exert itself and prevail.
Rav Shimi bar Ashi came before Abaye and said to him: Master, set a time for me to study with you. Abaye said to him: I have a set time for myself, and I cannot devote it to you. Rav Shimi bar Ashi said to him: Master, set a time for me at night, and we can study then. Abaye said to him: I have to bring water at night with which to irrigate my fields. Rav Shimi bar Ashi said to him: I will irrigate for Master during the day, and then Master can set a time for me at night to study with him. Abaye said to him: Very well; this is an acceptable arrangement.
What did Rav Shimi bar Ashi do? He first went to the owners of the uppermost fields, and said to them: The owners of the lowermost fields drink the water first, in accordance with the opinion of Rav. He then went to the owners of the lowermost fields, and said to them: The owners of the uppermost fields drink the water first, in accordance with the opinion of Shmuel. In the meantime, while the owners of the upper fields and the lower fields were arguing over who has first rights to the water, Rav Shimi bar Ashi dammed the river and irrigated Abaye’s fields. When he came before Abaye, the latter said to him: You have acted for me in accordance with two opposing opinions. And Abaye would not even taste the produce of that year because he thought that the water had reached his field in an unlawful manner.
TABC Yossi Sherman adds: Just like Abaye didn't take from the produce that was gotten unfairly, someone who obtains a dose unfairly should not be treated like one who did so fairly.
It is related that there were certain residents of a place called Bei Ḥarmakh who went and dug a channel at the head of the Shanvata River in order to divert the water and allow it to circle their fields, and then they returned the water to the river further downstream. Those who owned fields further upstream came before Abaye, and said to him: This damages our river, as the water is not flowing as it once had. Abaye said to them: Dig a little deeper with them, and that should solve the problem. They said to him: If we do that, our pits will become dry. Once Abaye heard this he said to the residents of Bei Ḥarmakh: Go remove yourselves from there, and dam the diversion that you made for the river.
9) The Mishna and Gemara sets forth its prioritization of competing Mitzvot as set forth in Horiyos 12b
MISHNA: Any mitzva that is more frequent than another mitzva precedes that other mitzva if the opportunity to fulfill one of them coincides with an opportunity to fulfill the other. And anyone who is more sanctified than another precedes that other person. If the bull of the anointed priest and the bull of the congregation, which are brought for absence of awareness of the matter, are pending, the bull of the anointed priest precedes the bull of the congregation in all its actions, i.e., its sacrificial rites.
GEMARA: The Gemara questions the statement in the mishna that the more frequent matter takes precedence: From where are these matters derived? Abaye said: It is as the verse states concerning the additional offerings brought on Festivals: “Beside the burnt-offering of the morning, which is for a daily burnt-offering” (Numbers 28:23). Once it is written: “The burnt-offering of the morning,” why do I need: “A daily burnt-offering”? Clearly the reference is to the daily burnt-offering of the morning. This is what the Merciful One is saying: Any matter that is more frequent takes precedence. Since it is a daily offering, it is more frequent. Therefore, it precedes other offerings.
The mishna continues: And anyone who is more sanctified than another precedes that other person. The Gemara asks: From where do we derive these matters? It is as the school of Rabbi Yishmael taught, that from the verse written with regard to a priest: “And you shall sanctify him, as he sacrifices the bread of your God, he shall be holy unto you” (Leviticus 21:8), it is derived that a priest should be esteemed and granted precedence with regard to any matter of sanctity. He should be the one to open first in the reading of the Torah, and to recite the blessing of the zimmun first, and to take a fine portion first. The priest who is more sanctified takes precedence.
TABC Talmidim raise the question as to whether Pikuach Nefesh needs are tantamount to holy matters.
10) The most relevant issue of prioritization are the priorities set by the Mishna (Horiyos 13a) regarding the order of saving lives:
MISHNA: The man precedes the woman when there is uncertainty with regard to which of them to rescue or to return a lost item to first. And the woman precedes the man with regard to which of them to provide with a garment first, because her humiliation is great, or to release from captivity first, due to the concern that she will be raped. When they are both subject to degradation, i.e., there is also concern that the man will be raped in captivity, the release of the man precedes the release of the woman.
Both the Rambam (in his Peirush Mishnayos to this Mishna) and the Bartenura (to this Mishna) explain the order of priorities stems from the principle set forth on the previous Daf in Horiyos כל המקודש מחבירו קודם את חבירו.
The Mishna continues
MISHNA: A Kohen[4] precedes a Levite. A Levite precedes an Israelite. An Israelite precedes a son born from an incestuous or adulterous relationship [mamzer], and a mamzer precedes a Gibeonite, and a Gibeonite precedes a convert, and a convert precedes an emancipated slave. When do these halakhot of precedence take effect? In circumstances when they are all equal in terms of wisdom. But if there were a mamzer who is a Torah scholar and a High Priest who is an ignoramus, a mamzer who is a Torah scholar precedes a High Priest who is an ignoramus, as Torah wisdom surpasses all else.
This setting of priorities seems to contradict the famous teaching of the Gemara (Pesachim 25b)
The Gemara asks: And from where do we derive this halakha (that one may not kill an innocent individual to one’s life with regard to murder itself? The Gemara answers: It is based on logical reasoning that one life is not preferable to another. The Gemara relates an incident to demonstrate this: This is similar to a certain man who came before Rava and said to him: A local official said to me: Go kill so-and-so, and if not I will kill you. Rava said to him: It is preferable that he should kill you and you should not kill. What did you think, that your blood is redder and more precious than his? Perhaps that man’s blood is redder. Apparently, one may not save his own life by taking someone else’s.
Rashi (ad. loc. d”h Mai Chazis) explains “one does one know if his life is more precious before Hashem more than the other”. Thus, if all life is fundamentally equal, why does not the Mishna in Horiyos set guidelines as to who is saved first? Instead, it just should have advised selection by lottery or some other random means of choosing who is to be saved.
Rav Elchanan Wasserman (Kovetz Shiurim, Pesachim number five) draws the fundamental distinction between the Mishna in Horiyos where we prioritize one life over another. Rav Elchanan distinguishes between active killing and choosing not to save someone. The principle of Mai Chazis teaches that there is a doubt as to whether we may presume someone is superior in the eyes of Hashem to another (such as a Talmid Chacham preferred over an Am HaAretz) and thus the Talmid Chacham may not actively kill the Am HaAretz since the latter may be more important in the eyes of Hashem than the former.
The principle of VeChol HaMekudash MeiChaveiro Kodem Et Chaveiro, explains Rav Elchanan, creates a Safek sufficient to warrant choosing whom one saves first, since one is not actively killing the one thought to be of a lesser degree of Kedusha. The principle of Mai Chazis, by contrast, also creates a Safek that prevents actively killing the one perceived to be of lower Kedusha even to save the former’s life, due to the possibility that perhaps Hashem views him as a more precious one[5].
TABC Talmidim observe that it is most interesting that Chazal do not suggest drawing lots to determine priority (the sailors' use of a lottery in Yonah Perek 1 might serve as a precedent for this idea). The explanation might be that doing a lottery wastes time in a situation where it is likely that every second is of critical importance. It is also more likely that it will lead to strife as opposed to following an accepted list of priorities.
11) Of course, this discussion is not complete without mentioning the famous Gemara (Bava Metzia 62a) regarding the dispute between Rabi Akiva and ben Petura regarding the allocation of water between two people walking in the desert. Our case is different since neither party is holding the “water” or scarce resource, but a third water (i.e. the government) which must decide how to fairly distribute the scarce vaccines.
If two people were walking on a desolate path and there was a jug [kiton] of water in the possession of one of them, and the situation was such that if both drink from the jug, both will die, as there is not enough water, but if only one of them drinks, he will reach a settled area, there is a dispute as to the halakha. Ben Petora taught: It is preferable that both of them drink and die, and let neither one of them see the death of the other. This was the accepted opinion until Rabbi Akiva came and taught that the verse states: “And your brother shall live with you,” indicating that your life takes precedence over the life of the other.
TABC’s Yaakov Halstuch notes that in our case a third party, i.e. the government, is holding the scarce resource, which differs significantly from our case in the Gemara. TABC’s Yossi Sherman argues that the government, in possession of hte vaccine, might be able, following Rabi Akiva, to prioritize the vaccine for those who serve the public such as politicians, doctors, teachers, and anyone else who works for a government funded institute.