Judaism and Disability 4 of 4: Halachic Living with a Disability

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: Modern note: when I originally wrote this it was heavily footnoted to the various rabbinic and halachic sources from which I gleaned the rules. I was unable to reproduce those footnotes for the blog, but please write me if you are looking for sources, and remember that none of these answers are mine.

We will now move on to a discussion about those rulings that specifically relate to people with orthopedic disabilities. The most significant set deal with the prohibitions resulting from the Sabbath. The most general rulings are perhaps those to do with movement. A person who cannot walk without assistance may use a walker, wheelchair or crutches in a public domain because these are considered body parts for the person as long as the person cannot walk without them. Braces are considered articles of clothing and are permitted. Artificial limbs are considered parts of the body. Unfortunately, electric wheelchairs are prohibited for public use because even if they are activated by a non-Jew the perception may be that the Jew in the wheelchair activated it. Interestingly, as of 1991 Israeli engineers were attempting to create a switch that would make power chair use permissible. This does tend to make one wonder how a wheelchair user who is not able to self propel a manual chair is supposed to lead that as meaningful as possible Jewish life. One loophole offered now, which will be more fully explored in the section relating to carrying on Shabbat, is that a non-Jew may be asked to push a wheelchair if the disabled person has significant distress at not going to synagogue. I ask the reader to make note of the sensitivity to mental anguish as it will figure prominently in later discussion.

The wheelchair as a body part enjoys an unusual position in Jewish law. A person in a wheelchair may carry a talit in the back pouch of the wheelchair because the pouch is considered a subsidiary to the wheelchair, and the wheelchair does not know better. In this unusual ruling, the wheelchair is in some ways given its own volition, as the comparison made is that of a small child carrying a rock. As we shall see in our in-depth discussion of the Shabbat laws, such legal fictions are no stranger to Jewish legal reasoning. Other wheelchair rulings are more readily apparent. A wheelchair user, or anyone who cannot stand, may say the Amidah, customarily said standing, from his or her chair. A chair user may also sit shiva from a wheelchair instead of a stool.

Not all rulings are this permissive, however. Driving to synagogue on Shabbat is prohibited even if there is no other option. Also, on Shabbat, a disabled person may not use an elevator or an automatic door unless taking advantage of the usage of such by a non-Jew. While at first glance, this may seem harsh, insensitive, and unfair, it is important to look at these rulings within the context of the rulings that we have already seen and the tradition from which they come. Simply put, Jewish tradition is legalistic tradition. Jewish laws are law, not to be trifled with for convenience. We have seen over and over again that modern halachic authorities want to accommodate people with disabilities. In the prior paragraph, we have even observed the creation of the convenient legal fiction to allow the carrying of talit for chair users on Shabbat. It would seem likely therefore that these prohibitions are simply things that the Rabbinic authorities could not legally circumvent or accommodate. Some might argue that the law is not perfect, others would argue that the law is perfect but we don’t understand it yet.

An interesting last piece that I feel should be tacked on to our discussion of orthopedic disabilities is a small section where Rabbis have actually a modified ritual because of understanding the specific circumstances of a disability. First, they have ruled that we have the ruling that, a right handed man should don tefillin on the left arm even if it is atrophied or paralyzed, if the arm is missing the person should don tefillin on the right arm. Then, we have the other seemingly isolated ruling that a disabled person should say the bathroom blessings after first covering catheters or collestomy bags. Intrinsically, these rulings are sufficiently obscure that they are outside of the scope of this paper. Yet, the fact that Rabbinic thought and effort were put into these specific rulings, and they were in fact published, reinforces the message that Judaism wishes to allow all Jews to make their lives as Jewish is possible, though their disability may appear to stand in the way.

GUIDELINES FOR THE DEAF

The first rulings in the guidelines for the deaf are very similar to the first ruling in those for people with orthopedic disabilities. That being because they relate to what in the disability field would be considered adaptive equipment. A hearing impaired person may wear a hearing aide because it is considered an article of clothing but may not adjust the volume. One may not carry it in one’s pocket. A spare battery could be designed as an article of clothing. A microphone may be used to help a hearing impaired person hear the torah on weekdays but a microphone may never be used on yom tov or the Sabbath. I think that the reasons for these were fairly well explained in the last section. The next few rulings are what we would call reasonable accommodations, changes to an activity such that a person with disabilities can still do it, but that retain a sufficient resemblance to the original activity. Deaf people may fulfill the mitzvahs of hearing torah and meggillah by reading them to themselves. Also, deaf people may dispense with the reading of the marriage contract or may use sign language.

Strangely enough, after this spate of permissive rulings, the Rosner and Tendler article gives a very terse statement that a deaf mute is exempt from all the commandments. The first thought that comes to mind on that is the Talmudic ruling to that effect, the possible explanations for which are discussed earlier in the paper. In examining the applicability of this ruling to today, it is beneficial to examine a quote by Rabbi J. David Bleich from his book Contemporary Halakhic Problems, Volume 2. On the source sheet from the Orthodox Caucus, it quotes the following from page 375 of his book. In light of the degree of education attained even by true deaf mutes in contemporary society, it is doubtful that they are considered examples of heresh described in rabbinic references. Hence they should be encouraged to, and indeed required to participate fully in Jewish religious life, including performance of all ritual obligations as well as in Torah study. By this light, the previous ruling, while correct in everything that it said was to be applied to a category of people that existed in rabbinic times and does not exist now. The Rabbinic cheresh was unreachable, today’s deaf mute is not. As society is now able to move away from blanket exclusion of the deaf, so is Judaism.

GUIDELINES FOR THE BLIND The first ruling that we will discuss for blind people relates to Shabbat and illustrates the particular tension generated by a disability for which most modern accommodations are technological. That ruling is that a blind person may not listen to tape or radio on the Sabbath. This is immediately followed with the qualification that visiting that person to provide them with stimulation is a specially meritorious mitzvah. Again, I think this is emblematic of the tension between the highly legalistic religion and a strong desire to provide compassion.

The next set of rulings that we will discuss have to do with a blind person’s personal obligations. I will list them first, for I feel that the prevailing theme will be self-evident. A blind person is required to say the blessings over the new moon. It is preferable for others to say the Channukah menorah blessing for them. A family member should perform the search for chametz before Passover. Further, a blind person must light Sabbath candles if there is no danger to the person or anyone else. This says that you do not have to see something, be it the new moon or the Shabbat candles in order to appreciate and bless them. Yet, you are free from those mitzvot that you could not possibly perform, while still being valued enough to merit their performance on your behalf.

Now we will move in to the reasonable accommodation phase of the laws for people with visual impairments. Firstly, a blind person may have contact with his wife before she goes to the mikveh if it is for her to provide him assistance. Also a blind person may be accompanied by his or her guide dog into a synagogue. These rulings indicate to us that certain taboos, especially those relating to ritual purity can be waived in order to allow for a accommodation of disability. By allowing the assistance to trump the restrictions, one labels them a mitzvah, as these are the only kind of actions that can at times transcend prohibitions. One accommodation offered is that blind people may pray from memory. They are not, however, exempted from any of the carrying restrictions in order to carry large print or special edition (Braille or other) books. At first glance, this may seem an unjust prohibition. Yet, it is quite easy to acquire copies of such books for a synagogue, assuming that the person can use them. Clearly, if they cannot, it presents the reason for the lifting of the prohibition on memorization. If they can, why do they need any more freedom than any other Jew? It would seem that here Judaism walks the fine line between a reasonable accommodation and special treatment. It also seems that they do so quite well.

The last two rulings relate to partially sighted people. Simply, a partially sighted person may read Torah and lead prayer, and a partially sighted person may serve as a legal witness. Both of these rulings affirmed that Jewish citizenship is based upon capacity and not some mistaken idea of the ideal.

The Shabbat Laws I already mentioned in the introduction to this section the compelling reasons for an in-depth discussion of the Shabbat laws. I will not reiterate that now, but stop only to remind the reader that we will start with a discussion of medical treatment, move to a discussion of technology on Shabbat, and finish with a discussion of the laws of carrying people.

MEDICAL TREATMENT Jewish law contains within it an imperative to heal. Life is a precious gift from God, as is the ability to save life. A doctor that does not practice his art is likened to a murderer. Yet, refuah, healing was not permitted on the Sabbath. The original prohibition against healing on Shabbat was in case herbs should be ground to make medicine. Grinding is prohibited on Shabbat. This ruling has been much debated in modern times, when people do not grind their own medicine, nor do doctors prepare medicine on the spot. The prevailing idea is not for abolishment, since in some places people do still prepare their own medicine, but rather that this fact should engender leniency. Leniency aside this remains the main concern to this day. There is, however, one other significant concern. Most of modern medicine requires the use of electronic equipment. While specific discussion of these laws will be held until further section, suffice it to say that this is customarily prohibited on Shabbat. The values used to address these prohibitions are extremely germane to our discussion. Not only is medical treatment itself a prime issue for disability, but the issues of suffering, anguish, and pain are also applicable.

The priorities of violation and healing on Shabbat are pretty straightforward. All Shabbat and most ritual prohibitions can be waived in the preservation of life, pikuach nefesh. Still, medical treatment should be done in the least transgressive way possible. For instance, it is permissible to control diabetes with insulin on Shabbat, but only if dietary control is not a viable alternative. For even serious illness, any prohibitions can be waived to provide the treatment needed. For general illness, wherein one is infectious, in great pain, or bedridden, but a threat to life is not present, one may perform rabbinically prohibited activities shinui or instruct a non-Jew to perform even a biblically prohibited task. Rabbi Moshe Feinstein considers impairment of function due to medical condition to be the same as being bedridden.

An act done shinui or kilachar yad, as with the other hand or different, constitutes a kind of rabbinic prohibition that can be violated to alleviate pain or to prevent great financial loss. Usually, performing an act shinui should be somewhat more difficult or complicated than performing the act in a standard fashion. An example might be kicking an automatic touch plate rather than pressing the button or tearing something with a full body movement rather than by jerking your hand. Rabbinic prohibitions are actions that the Bible does not prohibit, but for reasons such as a similarity to a biblically prohibited act or the potential to lead to a biblically prohibited act. These prohibitions are still binding, but it will become clear as we move through various halachic rulings that they are not given the same weight as biblical prohibitions.

Wherein there is risk to a specific body part, one may do tasks which are rabbinically prohibited without doing them shinui. If there is thought that this may become life-threatening, then one may do even biblically prohibited tasks. With illness in a specific body part, but no great pain and no threat, one may only do rabbinically prohibited tasks through a non Jew.

So far, these rules seem eminently pragmatic. Danger is identified, indexed, and treated. Interestingly, however, Jewish law seems to have made the jump to understanding the significance of psychology in ways the medical profession has yet to go. Prohibitions against various activities can be bent, especially rabbinic ones, if something needs to be done to treat mental anguish related to medical condition, even if the doctor thinks such measures are unnecessary. Many rabbis will permit rabbinic transgressions even when the anguish is not directly related to the malady at hand. A truly startling expression of this is in the fact that one is allowed to light a light for woman in labor to ease her mind. This is clearly done to relieve psychological anguish, as it can even be done for a blind woman.

The medical ethics of Shabbat are therefore quite straightforward. Most interesting for this analysis is not the varying categories of illnesses, but rather, the clever methods for circumventing prohibition and, most importantly, the recognition of psychological anguish as sufficient grounds for the violation of a rabbinic prohibition, certainly as matched with other legalisms.

ELECTRONIC DEVICES

Continuing on, we move to a discussion that at first glance has very little relevance to our topic, except perhaps with regard to elevators and other adaptive equipment. Indeed, later in this section we will discuss elevators at length. This lengthier discussion of electronics, taken mostly from one article, is not meant to be exhaustive. Rather, it is to examine the lengths to which modern rabbis will go to allow Jews to enjoy the conveniences of modern technology on the Sabbath so that the reader will be better able to appreciate that the extensive lengths gone to in order to justify carrying people with disabilities that we will see later can be better understood. For instance, we know that kilachar yad can be used to perform a rabbinically prohibited act to allow one to avoid a biblically prohibited act. What is interesting is that potential situations recommended in this technology article include unplugging a refrigerator kilachar yad so that the light will not go on when you open it. While I suppose that this could be to prevent one from starving, to me it smacks of simple convenience. This is a more lenient standard than great pain or anguish.

The overarching issue with regard to electronic devices is very simple. Completing a circuit is work such as at least one of the prohibited categories on Shabbat. Also, anything incandescent is considered to be the same as kindling fire. As a general removal of all electronic devices would represent a significant inconvenience for the modern Jew, legal loopholes have been developed, some of which we will explore now. I offer this caveat, however. As my concern is the law and not the technology, I will often outline the loophole without giving specific examples in electronics.

The first legalism offered is the following. Halachah rules that it is okay to do a permitted action on the Sabbath even if that permitted action could possibly cause a biblically prohibited action. This is called a davar she’eino mitkaven, an unintended act. The Talmud prohibits however that this idea be taken to an absurd extreme by forbidding an action that will definitely lead to a prohibited action. There is some question as to whether or not this only applies to secondary consequences beneficial to the doer of the original action. If the benefit of the secondary action is not to the doer and is therefore clearly unintentional, it is a rabbinic prohibition. A poor example of this might include passing through an elevator door and triggering its sensor not at a time when it is pointless, but rather just as the timer was about to run out, thus keeping it open unintentionally. As an interesting addition to this, it seems that in Jewish law, ignorance is a defense, as it were. An unintentional act is permitted. Therefore, a secondary prohibited act of a permitted act is not prohibited if the doer of the primary act was unaware that the prohibited secondary act would occur.

Another category of leniency in prohibition of labor on Shabbat is one where the benefit derived is not the purpose of the action with regard to the mishkan, called malacha she’eino tzericha legufa, a hole dug for the dirt if you will, rather than the whole. The mishkan was the sight of ancient Jewish worship and is often translated Tabernacle. One example of work where the purpose differed would be turning off lights to gain darkness, since the extinguishing of flame in the mishkan was to gain the black ash. This class of prohibition could only be violated to serve the public safety, not to prevent significant financial loss as in the case of other rabbinic prohibitions. It is quite possible, however, that again significant pain or mental anguish would allow this class as well.

The final class of prohibitions discussed in this article was a grama. A grama is an indirectly caused action. This is rabbinically prohibited except in cases of potential great financial loss or likely comparable moment. An example given is that of putting barrels of water in front of a fire so that they will burn, explode, and extinguish the fire. A common example of this is a thermostat operated appliance, permissible on Shabbat. Latent circuit devices use this principle to be permitted, such as a grama telephone, because rather than completing a circuit one simply removes the impediment to a circuit. This category is particularly significant to our discussion because the wheelchair in development discussed earlier in the paper runs on the grama principle. The chair would have a latent current running at all times.

Now, we will discuss the adaptive technology that is perhaps the most ubiquitous and one of the most useful for people with mobility impairments, heart problems, and numerous other issues, the elevator. I cannot critique the halachah of elevators because each of the rabbis quoted has a greater understanding of the engineering than I. Rather, I will reproduce it here. The halachah of elevators is complicated, and the debate seems to rage over several issues. Rabbi Yitzchak Weisz forbids riding in even an automatic elevator because the presence of even an extra passenger causes the motor to draw more current. Rabbi Yaakov Breisch rules that just as the Talmud prohibits one from being transported in a chair carried by others and this teaches not to ride in a trolley or on a subway, so it teaches not to ride in elevator, as he feels there is no distinction between vertical and horizontal travel. Rabbi Yosef Henkin and Rabbi Yehuda Unterman rule that since the elevator and not the person is doing the work, an automatic elevator is okay. Rabbi Breisch’s ruling does not appear to have any normative authority. After this, things get even more complicated. Rabbi Halperin rules that one may ride in an ascending but not descending elevator, as an ascending elevator causes the motor to draw more current, which he feels is halachically permissible. The descending elevator has two problems. One, a standard descending elevator uses the weight of its passengers to descend, and the halachah rules that one is responsible for actions caused by one’s weight trade. Two, a descending elevator generates current that is fed back into the buildings power grid. Rabbi Halperin is working on a special elevator without this problem. It should be noted, however, that the question of weight responsibility is disputed, and most authorities will allow the riding in an automatic elevator.

Moving away from these technicalities, we come to rulings most specifically relevant to people with disabilities. This is a group for whom the elevator is the only option, a group who needs to find out how to use it. One is permitted, according to some rabbinic authorities, to ride in an elevator operated by a Gentile provided that that Gentile was not operating the elevator on the Jew’s behalf. People with disabilities, however, have an even better option. For an even mildly sick person, or to facilitate performance a mitzvah, one may ask a Gentile to operate the elevator.

CARRYING Carrying is one of the thirty-nine categories of work biblically prohibited on Shabbat. It is important to note that pushing a wheelchair is considered carrying. The various loopholes that may allow this are what we will explore here. One may carry a human being who is potentially able to carry themselves even if they’re not doing so at this time, and be subject to only a rabbinnic prohibition. The minimal qualification to say that one is able to carry one’s self (chai nosei et atzmo) is that one can walk with help. If one is too sick to walk, is tied up, or is never able to walk, then they’re no longer considered chai nosei et atzmo.

By now, the reader should be aware that when a rabbi reduces something to a rabbinic prohibition, he is looking for a way to make the activity permissible. For carrying, they create a special rationale above and beyond what is normally necessary to violate rabbinic prohibition. In order to violate the rabbinnic prohibition one must do so shvut d’shvut, in essence create a situation where one is doing a rabbinnic prohibition through a method which would itself change a biblical prohibition into a rabbinnic prohibition. In essence, this can only be done in time of urgent need. This can include great pain, including emotional pain, potential great financial loss, and desire to fulfill a mitzvah, such as visiting the sick or going to services.

The next question is how to create this situation of a double rabbinic prohibition, understanding that the carrying chai nosei et atzmo is the first rabbinic prohibition. Possible methods include telling a Gentile to do the carrying, pachot pachot me’dalet amot, or shenayim she’osu. Pachot pachot me’dalet amot is the process of circumventing the limitation of carrying no more than 4 amot into public domain. The method, rabbinically prohibited, is to carry the person or object in stages of three amot. In order to get between a public and private domain one would stop in the middle of the transition point and start again which is never in fact carrying the whole person from the two domains. These methods, combined with chai nosei et atzmo, constitute a shvut d’shvut. When two people perform an act which could clearly be performed by one person is called shenayim she’osu, and this takes any biblically prohibited act and changes are to a rabbinic prohibition.

Clearly, our most pressing interest is how this can be applied to people with disabilities. In addition to questions such as carrying into a house for an oneg, shvut d’shvut can be used to push someone in a manual wheelchair for the reasons listed above. Remember that a wheelchair user is not chai nosei et atzmo, and therefore one must create the shvut d’shvut in its entirety. Some examples might be to have a Gentile pushing the wheelchair pachot pachot me’dalet amot, or for Jews to push the chair shenayim she’osu and pachot pachot me’dalet amot.

There is one more extremely ambiguous case, the Carmelit. A Carmelit is a rabbinically designated public space such as a “bungalow colony, an open field, a village street, or a body of water.” Originally, such spaces did not qualify as public areas, but they were a gray area that could easily lead to or have been mistaken for a public area. Furthermore, they weren’t private domains and needed some classification. Some consider that carrying one who is chai nosei et atzmo in a Carmelit is permitted because it is gezeira l’gezeira, a double precaution. Double precautionary measures automatically cancel each other out, with more finality than a shvut d’shvut. Others do not consider a Carmelit gezeira, though even they recognize this as an automatic shvut d’shvut.

The overriding idea is that rabbis’ go to incredible lengths to attempt to make the pushing of wheelchairs permissible. The only real place worth expressing any discontent with their attempts is that they do not see the extent of the potential mental anguish that exclusion would create. I am willing to argue that the psychological need for inclusion rates at least as high as the significant pain medical prohibition. Thus, I feel that pushing a wheelchair should not be a shvut d’shvut question, but rather one of creating only one rabbinic prohibition. This may seem unimportant and legalistic to some, but in practicality it has to things going for it. One, it recognizes the sheer weight that the psyche places on inclusion. Number two, it allows Jews to push the chair pachot pachot me’dalet amot, shinui, or in a Carmelit. To close this portion of the discussion, it is important to note that an eruv trumps these questions for a manual chair.