2021/5781
The Vilna Gaon - Community needs
The Vilna Gaon (Bi’ur HaGra Yoreh De’ah 251:18) cites the Talmud Yerushalmi (Horiyot 3:5) which states that the Posek enjoys priority in saving his life over the expert in Pilpul. Rav Schachter (Piskei Corona #15) explains that the principle underlying the order of preference of saving lives is the person upon whom the Tzibbur depends more.
Rav Schachter’s approach fits with the teaching of the Gemara (Sanhedrin 32b) that the loaded ship takes precedence over the ship that is not loaded. It also fits with the Rashi to Horiyot 13a (d”h Lehachayoto) who explains that the Kohen Mashu’ach Milchamah enjoys priority over the Segan Kohen Gadol “since the community needs the former more than the latter''.
TABC Talmid Aidan Samet adds that the Mishnah (Bava Metziah 33a) teaches that in regard to Hashavat Aveidah, the one who makes more of an impact enjoys priority. We might extend this idea and say that the one who makes more of an impact on society enjoys priority in regards to distributing scarce medical resources.
TABC’s Elan Agus notes the potency of communal needs in that the Gemara (Mo’ed Katan 21a) states that a Talmid Chacham for whom the community needs to teach Torah, may do so even if he is sitting Shiva.
Of course, it can be exceedingly challenging to assess who is of greater utility to society. The cautionary concept of Mai Chazit reminds us, though, that it can be very very difficult if not impossible to assess who precisely is more valuable to society [6].
TABC’s Tzvi Meister also notes that the community needs the wisdom and guidance of elderly individuals and therefore they should enjoy priority in terms of receiving the vaccine. The older individual often serves as the “eyes of the community, as Moshe Rabbeinu describes the role he wishes Yitro to play for the community (BeMidbar 10:31).
Contemporary Issues
Let us address various twelve issues raised in the current environment:
1.
Does the order of Hatzalah set forth in the Mishnah in Horiyot apply in our times?
Rav Asher Weiss (ad. loc.) rules that the Mishna still applies as a “tie-breaker” when all else is equal. Rav Wosner (ad. loc.) agrees. The Chazon Ish (Choshen Mishpat, Likkutim number 20, Bava Metzia 62a) seems to agree.
By contrast, Rav Shlomo Zalman Auerbach writes “I believe it is very difficult in our times to follow the [order set forth in the Mishnah in Horiyot]”. However, Rav Shlomo Zalman Auerbach does not state a reason for why the Halachah should differ in our times than in others. Similarly, Rav Moshe Feinstein (Teshuvot Igrot Moshe 2:74) writes “it is difficult to implement [the orders set forth in Horiyot] without careful investigation[7]”. Rav Moshe also does not explain what has changed in our times.
Rav Schachter explains Rav Moshe as follows. Based on his approach (cited earlier) that the order of priority depends on utility to society, he explains as follows. In theory, a man is more useful to society since he is obligated in more Mitzvot. Today, Rav Schachter explains, there are many women who observe more Torah and Mitzvot than men. Thus, it is impossible to assess who contributes more to society. Thus, Rav Schachter rules we cannot apply the Mishnah in Horiyot in our time.
Rav Schachter has explained on another occasion that the Mishnah is designed to provide some system of order in case of emergency. Having no order is a serious danger since pandemonium may reign and no one will be saved. Accordingly, as long as there is some societally ordained order, it need not necessarily be the one set forth in the Mishnah in Horiyot[8].
A possible problem with Rav Schachter’s approach is that we have already noted that the Rambam and Bartenura base the Mishnah’s order of priorities based on the principle of Kol HaMekudash MeiChaveiro Kodem Et Chaveiro. This seems to be a principle of values that should apply in all generations[9].
As an alternative explanation, one may suggest that the order of priorities set by the government serves as a societally accepted Takanah that might override the order set by the Mishnah.
In addition, it is possible that the Mishna might not apply in a situation where it could lead to severe strife because the society would find it offensive to prioritize men over women. Thus, while the Mishnah in Horiyot might be able to be peacefully implemented in Rav Wosner’s hometown of Bnei Brak it would surely not be accepted in the New York hospitals addressed by Rav Moshe or even the Jerusalem hospitals addressed by Rav Shlomo Zalman[10].
Most interestingly, Rav Waldenburg (Teshuvot Tzitz Eliezer 18:1) notes that the Rambam, Tur, and Shulchan Aruch[11] all do not cite the Mishnah in Horiyot. However, the Rama seems to codify this Mishnah as he rules (Yoreh De’ah 252:8) if both a man and a woman want to drown in a river, we save the man before the woman. The Taz (ad. loc. number 6) explains the Rama as applying the Mishnah in Horiyot in practice. Similarly, the Shach (Yoreh De’ah 251:11) applies the Mishnah in Horiyot as normative.
However, the Levush (Yoreh De’ah 252:8) explains that the Rama is speaking of a different situation. One must question why in the scenario described by the Rama do the people wish to drown themselves? The Levush explains that they are killing themselves to avoid capture and being violated by their captors. Only in this scenario is the man saved first since his violation is more unnatural than the women’s violation, as the man’s suffering would be greater (as we find in the end of the Mishna in Horiyos). However, according to the Levush, the Rama does not present the Halachah of saving a man before a woman.
Rav Waldenberg explains the omission of the Mishnah in Horiyot from the Rambam, Tur, and Shulchan Aruch (and possibly the Rama) in a similar manner to Rav Schachter. He explains that it is difficult to assess in practice the Mishnah’s order of priorities. Thus, while in theory a man precedes a woman since he presumably performs more Mitzvot, in practice this is difficult to impossible to assess. The Rambam, Tur, and Shulchan Aruch omit the Mishnah since it is impossible to implement in practice.
TABC Talmid Yakov Halstuch suggests that perhaps this Mishnah does not apply anymore since the value of Kohanim and Levi’im have lessened in the tragic absence of the Beit HaMikdash. He also suggests that in light of the priorities set forth by the Pri Megadim and Rav Moshe, perhaps we do not need the system set forth in Masechet Horiyot. Rav Schachter has said that the key point of the Mishnah in Horiyot is that there should be some order of saving, for if there is pandemonium the likelihood of saving someone is reduced. Once there is some system for priorities in distribution order, the Mishnah in Horiyot need not apply.
On the other hand, TABC Talmid Boaz Kapitanker argues that in light of the extremely disorderly distribution of the vaccine in the United States, perhaps it is best to apply the Mishnah in Horiyot in order to restore some sense of order in the chaotic American system.