News item: The United States Supreme Court has agreed to decide whether "medical necessity" can justify the distribution of marijuana despite federal laws prohibiting such an act.
The case was brought by the Clinton Administration to stop a California group from allocating "medicinal marijuana," which some patients say relieves their suffering, but which the federal government considers an illegal substance with questionable therapeutic value. California is one of several states which over the past few years has enacted laws legalizing possession of marijuana for medical purposes. However, the laws leave unclear exactly how patients are supposed to obtain the drug.
Let's shift the venue away from the Supreme Court (which the justices might welcome; they've gotten quite a workout lately with the election business.) Suppose a panel of rabbis were hearing the case, with Jewish law (halacha) and tradition as their only guides. How might they decide? How does Judaism view this issue?
It views it with a decidedly "therapeutic" eye as it balances the sometimes competing values of compassion, love, social welfare and the sanctity of human life.
Let's start with compassion, which is one of our tradition's paramount virtues. Why? Because it is one of God's paramount virtues, as many of our holy texts can attest to. Compassion, in fact, is one of the first of God's 13 Attributes of Mercy that is mentioned in the Torah (Exodus 34:6-7), and that we recite in unison three times on both Rosh Hashanah and Yom Kippur.
If a doctor is not compassionate, he's probably not worth his weight in tongue depressors. And his bedside manner probably leaves something to be desired. But he still has a sacred obligation to heal, a requirement that our Sages derived from various Torah passages, including "You shall love your neighbor as you love yourself (Leviticus 19:18), "You shall not stand idly by the blood of your neighbor" (Leviticus 19:16) and another one mandating the healing of someone injured in a quarrel (Exodus 21:18-19). Meanwhile, one of our greatest thinkers -- the 12th and 13th century philosopher, Sage and, yes, physician Maimonides -- drew a parallel between the binding obligation to return lost property (Deuteronomy 22:2) and an equally binding obligation to restore lost health.
The halachic imperative to heal also is a reflection of Judaism's belief in the absolute sanctity and inestimable value of human life, a belief embodied in the Talmudic adage that if one saves a single life it is tantamount to saving the entire world (Sanhedrin 37a).
"The value with which human life is regarded in the Jewish tradition is maximized far beyond the value placed upon human life in the Christian tradition or in Anglo-Saxon common law," wrote Rabbi J. David Bleich in the book "Jewish Bioethics." So deeply rooted is this value, he added, that it takes precedence "beyond virtually all other considerations."
As a result, virtually any Jewish law -- and by extension most secular laws -- can be violated in order to save a life or even prevent a potentially life-threatening situation from developing. For example, the otherwise binding laws of Shabbos or kashrus must be overridden in the interests of preserving life. Likewise, Jewish law would permit the distribution of an illegal drug, such as marijuana, when someone's life is clearly at risk.
The efficacy of the drug would not necessarily be an issue. A substance's "placebo" effect alone, according to some opinions, might be beneficial enough to warrant its use in life-threatening situations. Marijuana commonly is used to treat loss of appetite and weight related to AIDS; nausea resulting from chemotherapy; and glaucoma, a condition which according to Jewish law can potentially endanger one's life.
What about non-life threatening situations? Advocates of medicinal marijuana claim it is useful in treating a wide array of debilitating but non-lethal maladies, ranging from chronic back pain to fibromyalgia to migraine headaches. In theory, Judaism might also permit the use of medicinal marijuana in such cases -- provided no other effective remedy is available. It's difficult, however, to generalize; the specific facts of each case would have to be analyzed carefully before a ruling was issued. Nevertheless, it's worth noting that the halachic obligation to heal is not limited to saving lives, but extends to the alleviation of pain and suffering.
Would health risks associated with a drug be a factor in determining its halachic permissibility? Two sources (the Beit Meir and the Shevut Yaakov) allow the use of even hazardous drugs if the patient's death seems imminent. Another source, the Sefer Hasidim, prohibits the use of such substances unless all safe, conventional alternatives have been tried. Opponents of medicinal marijuana laws argue that effective alternatives are sometimes available. They also maintain that marijuana is not necessarily benign and therefore its use should be governed by sound medical evidence rather than ballot-box sentiment. They say comprehensive clinical trials are lacking. Based on those arguments, Judaism would be hesitant to allow the use of medical marijuana in certain cases, especially where viable treatment alternatives exist.
Complicating the discussion is the fact that our tradition encourages Jews to be law-abiding citizens, a concept that can be traced to the early Talmudic period when most Jews were living in exile. Under this framework, Jews are required to give up some autonomy in order to help preserve the social fabric by obeying secular laws, including those that prohibit the distribution of controlled substances such as marijuana. Judaism obviously would come down hard on the unregulated use of hard drugs.
But there is a distinction here. As much as Judaism values a lawful society, it places an even greater value on preserving and nurturing life. That means there probably are select cases in which it would permit the distribution of medicinal marijuana - under carefully controlled circumstances, of course -- unless that would somehow cause greater suffering than it would alleviate.
Richard Greenberg, a freelance writer and editor in the Washington, D.C., area is the author of the book "Pathways: Jews Who Return," published by Jason Aronson Inc. "Pathways" is a compendium of stories told by once-assimilated Jews who came to embrace their spiritual roots. Mr. Greenberg can be contacted at Rickg613@aol.com.
Halachic overview for this article was provided by Rabbi Sholom Kamenetsky. Any Halachic questions about this article may be addressed to him via e-mail at firstname.lastname@example.org.