5757/1996
This week we will explore the question of how one should act in a case of Pikuach Nefesh. Do we disregard the Shabbat laws entirely in case of emergency and act exactly as we would if it were not Shabbat? Perhaps, on the other hand, we should do our best to try to minimize the desecration of Shabbat even in an emergency situation. This is the question of whether Pikuach Nefesh is הותרה (completely permitted) or דחוייה (merely pushes aside the prohibitions) on Shabbat, which we will now proceed to discuss.
Talmudic Background of דחוייה/הותרה Dispute
The Gemara and Rishonim discuss the הותרה versus דחוייה question in many different contexts. A classic question debated in the Talmud is the nature of the permission in certain circumstances if (majority of the people, or Kohanim, or holy vessels (כלי שרת) were ritually impure - טמא) to offer sacrifices despite the presence of טומאה (ritual impurity). Rav Nachman and Rav Sheishet (Yoma 6b) debate whether טומאה הותרה בצבור or טומאה דחוייה היא בצבור, whether offering sacrifices despite the טומאה is unreservedly permissible or if the permission is of a limited nature. Rashi (s.v. דחויה) explains that the opinion that maintains דחוייה believes there does not exist היתר גמור (unrestricted permission) to offer sacrifices in impurity, and thus whatever can be done to minimize offering the sacrifices in impurity (such as seeking out Kohanim who are not טמא) should be done.
דחוייה/היתרה Regarding Shabbat - Talmudic Sources
Although the Talmud does not address this issue explicitly, there are four sources that may be used as proofs for arguing that Pikuach Nefesh is הותרה or דחוייה regarding Shabbat. Two sources seem to demonstrate the הותרה argument and two seem to corroborate the דחוייה point of view.
The Talmud (Shabbat 821b) rules that one may light a lamp on Shabbat in a room where a blind woman is giving birth, if the blind woman requests that a lamp be lit. Even though the light will not directly benefit her, the Talmud explains that this violation of Shabbat is permitted to soothe her mind. One could argue that only if Pikuach Nefesh is הותרה could such a lenient approach be countenanced. If one believes Pikuach Nefesh is דחוייה then one must keep violation of Shabbat rules to an absolute minimum.
Moreover, the Talmud (Yoma 48b) writes that when Shabbat must be violated, that the one who is chosen to violate Shabbat should not be a non-Jew or minor (קטן) rather it should be done by גדולי ישראל (the Taz and Beit Yosef disagree if this refers to an adult or a great scholar). If Pikuach Nefesh were דחוייה then it would seem that we should ask a child or non-Jew to violate Shabbat in order to minimize the Chillul Shabbat. Accordingly, this passage seems to demonstrate that Pikuach Nefesh is הותרה regarding Shabbat.
On the other hand, the Talmud (Shabbat 821b) writes דכמה דאפשר לשנויי משנינן, that whenever possible one should violate Shabbat in case of emergency by using a שינוי (performing the action in an unusual manner, which is not prohibited on a Torah level but forbidden on a rabbinic level). This seems to clearly support the דחוייה position.
Furthermore, the Talmud (Menachot 46a) ponders the following question. A doctor prescribes two dates as a cure (see Rashi) for a sick individual whose life is in danger. If is confronted with the following: suppose there are two branches each of which have one date on it and there is another branch which has three dates. Picking the branch with three dates minimizes the acts of קצירה (removing fruit from the tree) but involves רבויי שיעור, doing more than what's necessary to maintain life (see Tosafot ad.loc. s.v. שתים and Ran on the Rif Beitza 9b s.v. ומיהא who disagree if this is a Torah or rabbinic prohibition). On the other hand, cutting the two branches does not involve רבויי שיעור but involves two acts of קצירה. The Talmud concludes that one should cut only the branch which has three dates to reduce the acts of קצירה performed. What emerges from this Talmudic query is that even when meeting the needs of a dangerously ill person, we must seek to keep Shabbat violations to a minimum.
דחוייה/הותרה - Rishonim
The Rambam (Hilchot 2:1-3) is also not clear whether Pikuach Nefesh is הותרה or דחוייה as far as Shabbat is concerned. On one hand, he introduces this topic by positing that Shabbat is דחוייה in case of danger to life. On the other hand, he writes that Shabbat regarding a dangerously ill person as if it is a weekday as far as the needs of a dangerously ill patient are concerned.
Other Rishonim are more explicit, though. The Rosh (Yoma 8:41) cites many opinions regarding a celebrated halachic conundrum. A dangerously sick person must eat meat and no kosher meat is available. Rishonim debate
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whether it is preferable to eat non-kosher meat that a non-Jew brings to him or is it preferable to have a Jew ritually slaughter a kosher animal in a kosher manner, which involves Torah level Shabbat violations. Some Rishonim believed that it is preferable to eat the non-kosher meat since eating non-kosher meat is a less severe prohibition (איסור לאו) than violation of Shabbat (איסור סקילה). Others say that it is preferable to slaughter the meat because the patient will likely find the non-kosher meat to be instinctively and psychologically revolting and may refuse to eat the non-kosher meat and thus be in grave danger.
The Maharam of Rutenburg, however, is cited by this Rosh that it is preferable to slaughter the meat on Shabbat for the following reason: Just as cooking and lighting a fire on Yom Tov is entirely permissible (כמו חול), similarly "any work done for a dangerously ill individual on Shabbat is as if the work were done during the week." However, the prohibition of eating non-kosher meat is merely overridden by Pikuach Nefesh considerations, but the prohibition still applies (דחוייה). The Ran (commenting on the Rif, Beitza 9b s.v. ומיהא) specifically asserts that unlike cooking on Yom Tov which is הותרה, Pikuach Nefesh on Shabbat/Yom Tov is דחוייה.
Practical Halachic Ramifications - Shulchan Aruch and Commentaries
Two major ramifications of this dispute are discussed by the Shulchan Aruch and its commentaries. Rav Yosef Karo seems to rule that Shabbat is הותרה in case of Pikuach Nefesh. He rules (Shulchan Aruch Orach Chaim 823:21) that a Jewish adult should be the one to violate Shabbat in case of emergency and not a non-Jew or minor. The Rema adds that if no delay would result from doing a שינוי or asking a non-Jew to do the forbidden act, then a שינוי should be employed or a non-Jew should be asked to do the work. The Taz adopts a middle approach - whenever possible a שינוי should be employed but a non-Jew need not be asked to do the forbidden labor. The Mishna Berura (823:73) cites the Taz as normative.
Another question is whether it is permitted to violate Shabbat to take care of the non-life threatening needs of a dangerously ill person (חולה שיש בו סכנה). The Mechaber seems to rule that this is permissible as he writes (823:4) “we do for him what would be done for him on a weekday." The Biur Halacha (s.v. כל) extensively reviews the opinions on this issue and notes that many Rishonim believe it to be forbidden to violate Shabbat to take care of non-life threatening needs of a dangerously ill person. The Mishna Berura (823:41) concludes with a compromise approach. He rules that it is proper to be strict on this issue regarding a Torah prohibition. It should be noted, though, that Rav Soloveitchik related that his grandfather Rav Chaim Soloveitchik ruled in accordance with the Mechaber that even a Torah prohibition may be violated to take care of any need of a dangerously sick person.
It is important to note that even the Biur Halacha writes that one should be strict only if he is certain that the illness will not worsen by withholding certain care from the dangerously ill person on Shabbat. He concludes with a citation from the Meiri that if the action that involves violating Shabbat will strengthen the dangerously ill person, then the care should not be withheld from the dangerously ill person. In addition, it is worthwhile bearing in mind that most authorities appear to agree with Rav Shlomo Zalman Auerbach's assertion (Minchat Shlomo 11) that completing a circuit when a filament is not heated until it glows, does not involve a Torah level prohibition. It appears reasonable to say that in case of doubt one should err on the side of caution and follow Rav Chaim's rule to be strict regarding Pikuach Nefesh, and call a doctor in case of any reasonable doubt on Shabbat.
Postscript
Regarding the Rosh's question if it is preferable to violate Shabbat or eat non-kosher food, the Shulchan Aruch (Orach Chaim 823:41) rules that it is preferable to violate Shabbat. The Mishna Berura (823:93) adds that if the food is only rabbinically prohibited (such as food cooked by a non-Jew, בישול עכו"ם), then one should eat this food rather than violate Shabbat. The Shemirat Shabbat Kehilchata (04:71) notes that in a similar vein one may violate Shabbat to bring kosher food to a dangerously ill patient who is in a hospital that does not serve kosher food. However, Rav Neuwirth cites Rav Shlomo Zalman Auerbach zt"l (note 84) that if the hospital food has a reliable kashrut endorsement and the patient does not wish to rely on the organization providing the endorsement, then one may not violate Shabbat to bring him food that meets his halachic standards.
As an addendum to last week's article, a prominent physician advised me that one may be afflicted with a life-threatening illness and get no fever. Therefore, if there is any reasonable concern of danger, one should violate Shabbat to act to preserve life.
Next week, God willing, we will discuss our obligation to avoid a situation of desecrating Shabbat in a
situation of Pikuach Nefesh.