2021/5781

BeChasdei Hashem, great progress has been made developing Covid-19 vaccines. Distribution has begun worldwide, albeit on a limited basis in many locales. Protocols have been put in place determining which groups enjoy priority to receive the vaccines, since the supply is limited.  We begin to outline Halachic approaches to the distribution with a presentation of the background for the discussions in the Gemara and Rishonim. All translations are from sefaria.org 

A. Mishna, Gemara, and Rishonim

         Shas and Rishonim are replete with discussions as to who enjoys priority for competing limited resources.  Here are ten examples: 

1) The Gemara in Sanhedrin (32b) addresses a situation of a limited path for travel – who goes first (translation from the William Davidson Talmud).

As it is taught in a baraita: When the verse states: “Justice, justice, shall you follow,” one mention of “justice” is stated with regard to judgment and one is stated with regard to compromise. How so? Where there are two boats traveling on the river and they encounter each other, if both of them attempt to pass, both of them sink, as the river is not wide enough for both to pass. If they pass one after the other, both of them pass. And similarly, where there are two camels who were ascending the ascent of Beit Ḥoron, where there is a narrow steep path, and they encounter each other, if both of them attempt to ascend, both of them fall. If they ascend one after the other, both of them ascend.

How does one decide which of them should go first? If there is one boat that is laden and one boat that is not laden, the needs of the one that is not laden should be overridden due to the needs of the one that is laden. If there is one boat that is close to its destination and one boat that is not close to its destination, the needs of the one that is close should be overridden due to the needs of the one that is not close. If both of them were close to their destinations, or both of them were far from their destinations, impose a compromise between them to decide which goes first, and the owners of the boats pay a fee to one other, i.e., the owners of the first boat compensate the owner of the boat that waits, for any loss incurred.

TABC Talmid Elan Agus notes that the Chazon Ish famously applies this Gemara to accord priority to exempt those who have assumed the burden of fulltime Torah study from service in Tzahal.  

2) The Mishna in Bava Metzia (33a) outlines priorities in allocating another limited precious resource - one’s time and energy

MISHNA: If one finds his lost item and his father’s lost item, tending to his own lost item takes precedence. Similarly, if one finds his lost item and his teacher’s lost item, tending to his own lost item takes precedence.

If one finds his father’s lost item and his teacher’s lost item, tending to his teacher’s lost item takes precedence, as his father brought him into this world, and his teacher, who taught him the wisdom of Torah, brings him to life in the World-to-Come. And if his father is a Torah scholar, then his father’s lost item takes precedence.

If his father and his teacher were each carrying a burden and he wants to assist them in putting down their burdens, he first places his teacher’s burden down and thereafter places his father’s burden down. If his father and his teacher were in captivity, he first redeems his teacher and thereafter redeems his father. And if his father is a Torah scholar, he first redeems his father and thereafter redeems his teacher.

The Rambam, in his Peirush HaMishnayot (4:4), compares medical care to Hashavat Aveida, thus making priorities regarding Hashavat Aveida relevant to priorities in distributing scarce medical resources.  

TABC Talmid Yakov Abrahams notes that the Gemara does not say that the father has to be a teacher of Torah to his son in order to take precedence, but rather just that he himself has to be a Torah scholar.  Thus, we have a precedent to prioritize a Torah scholar.  

TABC Talmid Jacob Becker wonders what if the parent lives closer than the Rebbe.  Perhaps in such a case the rule of Ein Ma’avarin Al HaMitzvot should apply and the parent should come first.  

TABC Talmid Yaakov Suldan adds that maybe the idea that you would take care of your own needs first and only then your father's needs, would only apply if your father is as healthy as you are. If you are equally as healthy as your father, then this Mishnah would act as a tie breaker (you would receive it first) but if your father is sicker, he should get it first. YOU take precedence only if you and your father are equally healthy.

3)  Along the same lines, we find in Bava Metzia 32b:

The Gemara suggests: Come and hear proof from a baraita: If one encounters a friend whose animal collapsed and it is necessary to unload its burden, and one also encounters an enemy who needs assistance to load a burden onto his animal, the mitzva is to assist the enemy, in order to subjugate one’s evil inclination. The Gemara reasons: And if it enters your mind that the requirement to prevent suffering to animals is by Torah law, that option, to unload his friend’s animal, is the preferable course of action for him. The Gemara answers: Even if the requirement to prevent suffering to animals is by Torah law, even so, loading his enemy’s animal in order to subjugate his evil inclination is preferable.

TABC Talmidim Yaakov Abrahams and Tzvi Meister interestingly seek to apply this Gemara to Israel’s allocating vaccines to the Palestinian Authority.  Perhaps the kind offer will soothe the enmity between the parties.  

4) The Gemara (Sanhedrin 8a) discusses how Dayanim decide which cases are heard first: 

The Gemara continues to interpret clauses from the verse cited above. “You shall hear the small and the great alike” (Deuteronomy 1:17). Reish Lakish says: This teaches that the judgment of one peruta should be as dear, i.e., important, to you as the judgment of one hundred maneh, i.e., ten thousand dinars. The Gemara asks: With regard to what halakha is this said? If we say it is with regard to the need to study it carefully and to decide the case justly, it is obvious that even cases relating to small sums must be judged thoroughly. Rather, Reish Lakish was speaking with regard to giving it precedence: The small claims case may not be deferred in favor of the larger claim merely because the disputed sum is smaller.

         We should note, though, that the Shulchan Aruch (Choshen Mishpat 15:1) writes that the case involving a Talmid Chacham as a litigant enjoys top priority even if he arrived last.  It is possible that this is an example of following the aforementioned Gemara from Sanhedrin 32b that the burdened ship enjoys priority over the unburdened ship.

5)  The Halacha assigns priorities in allocating limited financial resources to Tzedaka:

Rambam Hilchot Anayim Perek 8:

A woman takes precedence over a man for feeding, clothing, and bringing out of prison, because it is more usual for men to go door to door [to beg] and not for a woman who feels great shame in this. But if both of them [a man and a woman] were in captivity and were in danger of being violated sexually, the man takes precedence for redemption, because this is not the way of things.

TABC Talmidim Tzvi Meister and Yossi Sherman suggest that women might enjoy priority in certain sections of the Jewish community, since many women in these communities are more hesitant to take the vaccine due to unfounded rumors of it contributing to infertility.  This hesitancy might be viewed as creating a greater vulnerability, and thus priority in receiving the vaccine.  

In the case of a male orphan and a female orphan who come [to the authorities of the community] to get married [but not to each other], the female [orphan] takes precedence over the man, because she feels great shame in this.  And they may not give her less than the worth of six and a quarter dinar of pure silver, and if they have more in the bank of tzedakah, they give to her according to her honor.

If we have before us many poor people or many captives, and there is not enough in the fund to sustain them, or to clothe them, or to redeem them all, a priest takes precedence over a Levite, a Levite over a [regular] Jew, a Jew over a chalel [an illegitimate child of a priest], a chalel over a shetuki [an illegitimate child with an unknown father], a shetuki over a asufi [a foundling], an asufi over a mamzer [a child who was conceived in a union forbidden by the Torah], a mamzer over a natin [a descendent of the Gibeonites], and a natin over a stranger, so long as the natin was praised with us in holiness, and a convert takes precedence over a freed slave, for he [the slave] was once one of the cursed.

To what does this refer? When both who are imprisoned are equal in wisdom. But if there was a High Priest who was an ignoramus and a mamzer who was a wise disciple, the wise disciple takes precedence. Anyone who is great in wisdom takes precedence over another. But if one of them [the captives] was one's rabbi or father, even if there is someone who is greater in wisdom, one's rabbi or father [takes precedence]. Even if there is someone there [among the captives] who is greater in wisdom than his rabbi or his father, so long as he [his father or rabbi] is a wise disciple, he [the father or the rabbi] takes precedence over the one who is greater than them in wisdom.

TABC Talmid Yossi Sherman notes that the last point shows that knowledge and usefulness to society enjoys much higher priority than one’s status.