Judaism and Disability 3 of 4: Halachic Treatment of People With Disabilities

From roughly spring of 2001 until roughly the spring of 2002, I researched and wrote as part of my baccalaureate degree at Yale University a paper entitled Judaism and Disability. It was quintessentially a work of undergraduate scholarship, building heavily on the work of Judith Abrams, the Journal of Halacha and Contemporary Society, and what few other scholarly articles were available on the topic at the time. In the years that followed, I have spoken numerous times on the subject, usually to synagogue audiences, tailored to give them an ethical and halachic framework on which to make disability related decisions as Jews and Jewish organizations. The more times that I have given the talk, the more I have come to realize that, while scholarly treatments of this subject exist, there is a dearth of any type of written material explaining the sources and the perspectives and the practical points of view to the interested Jewish layman. These four posts are the key points in that work, largely unmodified from my undergraduate submission: The single most overriding ethical imperative to all Jews, ubiquitous within my sources, is that society should not treat people with disabilities as anything other than equal. It is a Jewish obligation for individuals, family and society to help people with disabilities lead as full and productive a life as possible. Perhaps nowhere is this more quickly forgotten, and nowhere does it need to be more quickly remembered than in the case of people with intellectual disabilities. In a sources sheet put out by the Orthodox Caucus, an Orthodox Jewish ethics organization, there’s a quote from the rabbi Aharon Soloveitchik from his look, Jewish Education: The Fire of Sinai that sums this up very well. He says the following. The Sheeino yodeia lishol, the retarded child cannot be neglected. Even though this child appears unable to talk and is apparently without intelligence, we are not to assume that the so-called retarded child has no potential. With proper patience, love and perseverance, one is apt to open the mouth of the sheeino yodeia lishol... Every child has to be approached individually. To the extent that the child is limited, the child’s maximum potential is to be reinforced and galvanized. This, of course, will require consuming, persevering dedication and labor, but those who devote themselves to this endeavor will certainly reap results and will succeed in becoming partners with God by infusing life and joy into the stagnant existence of retarded children. There is no nobler cause than dedication to the ushering of joy and meaning into the lives of retarded children, as the Rambam says at the end of Hilkhot Megillah (2:17): “For one who gladdens the heart of the unfortunate is similar to the Shekhinah, as it says “To revive the spirit of the lowly and to revive the heart of the contrite” [Isaiah 57:15]. This is a potent argument, not just against the shunting of the intellectually disabled to the side, as is so often done in our society, but actively including them to whatever level they can be. It affirms their basic humanity, and makes a firmly founded Jewish obligation out of attempting to educate them to the fullest extent of their potential. This rabbinic authority assumes that potential.

One might immediately counter with the argument that this is an innovation in Judaism, that the Rabbis very definitely had a category of shoteh, the imbecile discussed earlier, and that this person, while protected, was excluded. Modern authorities have an answer to that question as well. Rabbi Eliezer Waldenberg, quoted from his book, Tzitz Eliezer 14:69, on a discussion guide put out by the Orthodox Caucus, has the following to contribute. It is clear that even those who are most mentally disabled, whose intellect is underdeveloped, and do not comprehend things as other people do, do not fall under the category of a shoteh (imbecile); they are only disqualified from being witnesses in a court of law, as they sometimes cannot recognize contradictory statements... but they are certainly subject to the mitzvot, even capable of Gittin and Kiddushin (marriage and divorce) if they can understand these things when they are properly explained to them. ... Therefore an adult with the IQ of a 7-10 year old should be taken out of a non-kosher institution, and placed where she will not be exposed to forbidden things, and this is the responsibility of the community and its leadership, that is, the Kehillah (the organized Jewish community) of the city. Here, again, is an even stronger trumpet note of inclusion. Furthermore, the idea of shoteh is limited to the unresponsive.

There are many other responsibilities that the community and individuals face with regard to people with disabilities. When possible the community and family must work to their utmost to help people with disabilities avoid institutional care. This is clearly a quality of life issue, as the sources seem plainly aware that institutionalization is known to reduce quality and length of life. Further, Judaism does not expect that the family will bear this often unbearable burden of cost and logistics alone. According to Rabbi Moshe Sofer, care for the physically and intellectualy disabled among the community is the responsibility of the whole community. They are classified with the poor as financially and physically sustained by society. This burden relates as well to accessible Jewish facilities.

A specific subset of these facilities that is particularly important are the educational facilities. Where possible, any supports necessary for disabled people to pray and be educated with the community should be purchased or hired, up to and including private teaching for those students unable to attend school. Lest anyone think that this is merely modern sensibilities intruding upon Jewish values, let us take a moment to look back at the Babylonian Talmud. The following story comes from Eruvin 54b. Rabbi Preida had a student to whom he had to repeat each lesson four hundred times before he understood it. One day R. Preida was required to leave and attend a certain matter involving a mitzvah. Before leaving, he taught the student as usual four hundred times but he still did not grasp the concept. R. Preida asked him “why is today different?” He answered him “From the very moment that they told my master that there is a mitzvah matter that he must attend to, my attention was diverted, because every moment I thought that now the master will get up and leave, now the master will get up and leave.” R. Preida said to him “Pay attention, and I will teach you.” He taught him another four hundred times. Clearly, the student had a learning disability and yet this Rabbi set forth in action the ideals that the modern Rabbis relate in modern terms.

It is clear that the Rabbis applied this concern to all elements of human life including purity issues such as are involved in reproduction. The sources make it clear that it is especially important that mikvehs be made accessible. When necessary to provide help, a husband may accompany a women and a blind woman should have help with the bedikah (examination) cloth. Not only is the disabled person the responsibility of society in supplying these opportunities, but society must help to support them even so far as taking care of children that they produce but are unable to care for. Abortion must be avoided even if it means other Jews must step up, adopt and care for the child.

A proper summation of this section is pretty easy to make. Very simply, Jews are responsible to do whatever they can to make sure that the conditions of their fellow Jews disable them as possible. People with disabilities are to be taught whatever they can learn, given the best quality of life available, and allowed to grow to their full potential. To today’s listener, these may have the ring of truisms. Yet, these ethical imperatives were revolutionary to American society little more than three decades ago, and have not yet achieved their full realization. Interestingly, they grow seamlessly and in an easily foreseeable fashion from a tradition spanning thousands of years.

Specific Imperatives for Persons with Disabilities

A disability often comes with special implications for the life of the person with disabilities. Jewish law has adapted and evolved as a result of these special needs and has created specific rulings for the practice of people with specific disabilities. In this section we will discuss several different kinds of rulings. First, we will look at rulings germane to a wide range of people with different disabilities. Next, we will look at rulings most applicable in questions of orthopedic disabilities. This will be followed with a discussion of guidelines specifically for the deaf and hard of hearing, and finally, with a discussion of rulings for blind or partially sighted people. These could be the cheresh and the iver of the Rabbinic rulings.

GENERAL RULINGS

Most of the next few sections will be peppered with specific rulings relating people with disabilities to different halachic imperatives. It is an interesting overall statement, therefore, that Jewish law does not hold responsible people unable to fulfill commandments because of disability and specifically frees them from guilt. According to Rabbi Moshe Tendler and Dr. Fred Rosner, this affirms “that the basic worth and spirituality of the disabled is not diminished in any way.” This does not imply a freedom from halachah, merely a freedom from the guilt that may be associated with being unable to achieve the impossible. According to Rosner and Tendler, halachah “urges them to achieve their fullest potential as Jews, while exhorting society to assist them in making their religious observance possible.” This means that in general, a person with a disability should fulfill all of the commandments as best as they are able.

We are taught that disabled people should have a bar mitzvah and do as much as they are able, if they cannot get to synagogue the miynan should be brought to their house. Also, a disabled person, if not intellectualy disabled, is part of a minyan and, a disabled person may testify as a witness in a legal proceeding. The overarching statement implied from these individual rulings is both simple and profound. In essence, to whatever degree they are able, people with disabilities are allowed to demonstrate their acceptance of the responsibilities of adulthood. Furthermore, more than a demonstration, they are allowed, as long as they have the ability to participate as a full adult with all rights and privileges in Jewish civil and spiritual society. I personally think that this melds directly with the Talmudic ruling that a person with a disability can serve as a shaliach tzibor, a prayer leader, as long as that disability is not distracting to the congregation. This, of course, must be understood with the caveat that not disrupting the community’s ability to concentrate on prayer is a qualification for the job of shaliach tzibor.

Perhaps the most astounding statement of inherent equality and value for persons with disabilities as living, contributing members of the community is the following quote from Rosner and Tendler. “A disabled person has the same rights, privileges [sic] and obligations applicable to all Jews regarding ritual family purity, marriage, and procreation.” This quote is followed by the following further statements on Jews with disabilities and procreation. Unless a disabled person is unable to care for a child, he or she is obligated to procreate. Relatedly, birth control or sterilization in the case of mental retardation is not condoned unless experts agree it is absolutely necessary.

This warrants some discussion. Why would anyone even bring this up? Unfortunately, less than 30 years ago, there were still states in this country that mandated sterilization for people with certain kinds of intellectual disabilities. Jewish law rejects this “eugenics” for the heinous crime that it is. So why mention birth control at all. People with certain disabilities cannot produce viable offspring. In allowing the consideration of birth control for these people, Judaism is acknowledging that which so many religions shy away from but of which it has never been afraid. Sexual relations are healthy part of life for its own sake. If it is unjust to have a person with disabilities procreate, but they are able to engage in marriage and sexual relations, he or she should do so in whatever way is possible. Similarly, a disability is not considered grounds not to have children. Raising children is a mitzvah and many people with disabilities who cannot procreate can still give love and support and give some child a good upbringing and a meaningful life. Thus Jewish scholars say that, if a disabled couple cannot have children they are encouraged to adopt. I think that this is the greatest statement of worth and value that a tradition can give to a population. Not only are they expected and encouraged to contribute offspring, one of the most sacred of the Jewish and obligations, their value as people is so far recognized that they are encouraged to raise children even if they cannot create them. How different in timber this is from the society in which we live that still tries to take the children of disabled mothers.