Pikuach Nefesh and Shabbat - Part IV by Rabbi Howard Jachter

5757/1996

            This week we will examine a highly complex and controversial issue, the permissibility of a physician to return home on Shabbat after a life saving-mission.  We will first present the Talmudic background of this issue and then proceed to outline the three primary views of the twentieth century authorities regarding this issue, as presented by Rav Zvi Pesach Frank, Rav Moshe Feinstein, and Rav Shlomo Zalman Auerbach.  We must emphasize at the beginning of this discussion that competent Halachic guidance should be sought, on an individual basis, by those who must deal with this issue.

 

Talmudic Background - The Mishnayot in Eruvin and Rosh Hashana

            The Mishna in Eruvin (44b) states that כל היוצאים להציל חוזרין למקומן, whoever goes out to save [someone whose life is in danger] may return to his place [where he was originally].  Tosafot (s.v. כל) explain that this is an example of התירו סופן משום תחילתן, that Chazal permitted the completion of an action on account of its beginning.  This concept is presented in the Gemara (Beitza 11b) where the Gemara presents three cases in which Chazal permitted work to be completed on Yom Tov, despite the fact that only the initiation of that work was necessary for Yom Tov.  Chazal felt that if they did not permit the completion of these tasks, people would be unwilling to begin these tasks, which were necessary for the community.  Similarly, if those who went to save others were forbidden to return home, there is concern that they would be reluctant to undertake the mission of mercy.  It is important to note that the Magen Avraham (794:81) restricts the application of this rule to Rabbinic laws.  In other words, the person returning from a mission of mercy is permitted only to violate Rabbinic but not Biblical prohibitions (see, however, Teshuvot Chatam Sofer Orach Chaim 302).

            The Gemara (Eruvin 54a) poses a question on this Mishna.  The Mishna (Rosh Hashana 32b) records that at first those witnesses who came to testify about the new moon, and had come from beyond the תחום, the Shabbat boundary, were only permitted to stay within the immediate area this destination (see Tosafot Rosh Hashana 32b s.v. לא).  Rabban Gamliel the elder, the Mishna continues, issued a decree, enabling that the witnesses to walk two thousand cubits in any direction - in other words, they enjoyed the same status as the residents of the place they came to.  Similarly, the Mishna adds, the midwife who came to aid the birthing of a child, someone who comes to rescue people from an invading army, a raging river, a collapsed building, or fire, all are entitled to walk two thousand cubits from their immediate destination.

 

Gemara Eruvin 54a

            The contradiction between the Mishna in Eruvin and the Mishna in Rosh Hashana is quite clear.  The Mishna in Rosh Hashana limits one who has come on a rescue mission to walking within the two thousand cubit Shabbat boundary of the town to which he came to save lives.  The Mishna in Eruvin seems to indicate that it is permissible for the rescuer to return home, even if his home is beyond the Shabbat boundary.

 

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            The Gemara presents two resolutions to this apparent contradiction.  Rav Yehuda states in the name of Rav that when the Mishna in Eruvin permits returning to one's place of origin, it is teaching only that when a soldier returns from his mission may he carry his weapon.  The reason for this permission is due to a decree Chazal issued on the heels of a tragic incident.  The Braita records that at first the practice was that if war was waged on Shabbat, the soldiers would place their arms in the house nearest to the town wall after the hostilities ceased.  However, one time the enemy realized this practice, (and the resultant vulnerability of the soldiers) and they took advantage and attacked (similar to the Arab attack during the 1973 Yom Kippur War when the Arab nations took advantage of our observance of the Torah). As a result, the Jewish soldiers all rushed into the house near the wall to retrieve their weapons and in the resulting confusion more Jews killed each other than died in the subsequent battle.  At that point, the rabbis decreed that soldiers may return with their weapons.  Rav Shlomo Zalman Auerbach (Minchat Shlomo p. 85) adds that after the decree it is not proper to be stringent, as it may pressure others to be strict and result in future tragedy similar to the one recorded in the Braita.

            Rav Nachman bar Yitzchak, however, resolves the apparent contradiction of the Mishnayot in the following manner.  The Mishna in Rosh Hashana speaks of a time of a strong Jewish presence when the two thousand cubit limit was sufficient.  The Mishna in Eruvin, according to Rav Nachman bar Yitzchak, is speaking of a time where the Jews were regretfully less powerful and thus felt insecure if they could not return home (even beyond the Shabbat boundary) without their arms.  The Rosh (Eruvin 4:5) cites the Maharam of Rothenberg who rules that the Halacha follows the approaches of both Rav and Rav Nachman bar Yitzchak.  The Shulchan Aruch (chapter 704) appears to follow this ruling.

 

Rambam and Shulchan Aruch

            The tension between the mishna in Rosh Hashana and the one in Eruvin finds it way into the Rambam and Shulchan Aruch.  The Rambam, on one hand, in Hilchot Shabbat 2:32 writes "that Jews who went to war on Shabbat to aid their brethren, are permitted to return to their place of origin carrying their weapons 'כדי שלא להכשילן לעתיד לבא,' so as not to cause danger in the future."  On the other hand, the Rambam writes (Hilchot Shabbat 72:71) that those who go to save Jewish people who are attacked or whose lives are threatened, are permitted to return with their weapons to their place of origin, only if the Jewish presence is weak and the Jewish soldiers fear exposure to attack.

            Similarly, the Shulchan Aruch (Orach Chaim 923:9) presents tersely the rule that "those who go on a life saving mission are permitted to return with their weapons to their place of origin."  Yet, later in chapter 704, the Shulchan Aruch limits this permission to a situation where Jewish security is shaky and the Jewish soldiers feel vulnerable.

 

Twentieth Century Authorities

            Now that we have explored the Talmudic background to this issue we are now ready to examine various applications of these texts to the question of whether a doctor is permitted to return home after responding to an emergency call.

 

Rav Zvi Pesach Frank - the strict approach

            Rav Zvi Pesach Frank (Teshuvot Har Zvi Orach Chaim II:01) presents the most strict approach to this topic among modern decisors.  A physician who resided in Pardes Channa and made an emergency trip on Shabbat to Chadera asked Rav Zvi Pesach if he was allowed to drive home and turn off the engine on Shabbat.

            Rav Zvi Pesach ruled that the doctor was forbidden to drive home on Shabbat.  He even rules that the physician is forbidden to turn off the motor, which involves a Rabbinic level  prohibition of כבוי, extinguishing (because it is a מלאכה שאינה צריכה לגופה, which is a Rabbinic prohibition).  Rav Zvi Pesach rules that the rabbis only permitted the rescuer to do certain specific activities on Shabbat.  The rabbis did not permit the rescuer to engage in all rabbinically prohibited activities.  Thus, the physician is not restricted to remain in the home of his patient in Chadera for the balance of Shabbat.  Rather, he permitted the physician to walk within Chadera's Shabbat boundary.  Nevertheless, asserts Rav Zvi Pesach, no other activity is permitted to the rescuer other than that which has been explicitly permitted by the rabbis of the Talmudic periods.

            Next week, we shall explore the views of Rav Moshe Feinstein and Rav Shlomo Zalman Auerbach concerning this issue.

Purim and Pikuach Nefesh by Rabbi Howard Jachter

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