The Jewish Ethics of Vaccine Triage

It seems pretty clear that there won’t be enough COVID-19 vaccine for everyone for a long time. At the moment, health care personnel and residents of long-term care facilities have priority. In the next phase, the CDC recommends the vaccine for people over 75 and frontline workers in “essential and critical industries.” After that, people aged 65-74, people 16-64 with high-risk medical conditions, and “essential workers not recommended for vaccination in Phase 1b” can join the party. And then comes the so-called “general population”—although it’s still unclear how or when children and pregnant women will be included.

What is clear is that there will be more humans who need the vaccine than there are available vaccine doses for quite some time. So how do we prioritize the allocation of such a limited resource? How do we do so in a way that’s fair? And what can Jewish law and tradition tell us about vaccine triage?

Just to get this out of the way: Vaccination is undeniably incumbent upon Jews. Here’s the COVID-19 vaccine guidance from the Orthodox Union and Rabbinical Council of America. Here is more evidence from religious authorities that vaccination is a Jewish value. Rabbi professor Avraham Steinberg, M.D., an Israeli medical ethicist and big macher, suggests that an intentionally unvaccinated person can be called a rodef, a pursuer, someone attempting to kill. And the Jewish obligations of pikuach nefesh, preserving human life, and dina d’malchuta, following the laws of the land in which you live, speak to the urgency of vaccination. We good?

So the issue isn’t whether Jewish law supports vaccination, but who should get vaccinated when.

The poskim, Jewish legal experts, note, “We cannot give general, clear rules regarding exactly how much danger a person may engage in to save lives. Rather, it all depends on each situation, and it must be weighed carefully.”Rabbi Shlomo Zalman Auerbach wrote, “I can assure you that I am not setting firm guidelines regarding triage since the questions are very severe and I don’t know of clear proofs for them.” And the World Health Organization notes, “Science and/or evidence alone cannot tell us which choice or aim is ‘correct’ or which aim society should value most. This requires a value judgement, which is the domain of ethics.”

On a global level, a major concern is that rich nations will get way more vaccine doses than poor nations. There’s a name for this: “vaccine nationalism.” The WHO reports: “Direct deals made by high-income (and some middle-income) countries result in a greatly reduced potential supply for equitable global allocation. Many high-income countries have made advance purchases of enough doses of different vaccine candidates to vaccinate their populations several times over. This is a moral issue that warrants comment and action by religious leaders.” COVAX, a partnership between WHO and epidemiology and immunization groups, works to provide poor countries with enough COVID-19 vaccine for 20% of their populace; the aim is to provide 2 billion doses by the end of 2021. COVAX is funded by 80 wealthier nations...but the United States did not join that coalition. (For what it’s worth, Israel did. As did the U.K., Canada, Japan, Mexico, yadda yadda yadda.) This is something we might urge our political leaders to change.

On a national level, rabbis, ethicists, and doctors are talking about how to manage equitable vaccine distribution in the U.S. Their interviews with Tablet were injected with Jewish wisdom and infused with Torah scholarship.

Rabbi Dr. Jason Weiner, BCC, Los Angeles. Senior Rabbi and Director of the Spiritual Care Department at Cedars-Sinai, who also has a doctorate in clinical bioethics. He is the author of Jewish Guide to Practical Medical Decision-Making.

Summary of Some Jewish Emergency Triage Values

• Triage as much as possible to try to avoid the need to withdraw any treatments.
• The goal is always to save as many people as possible.
• Prioritize patients who are most likely to benefit and who have overall better chances of survival.
• Prioritize patients with the potential to live a full lifespan over those who are terminal.
• Base decisions only on the clinically relevant health of the patient, not their age, socioeconomic status, race, gender, etc.
• If a patient will likely not survive and other patients need their room/ventilator/staff or other resources, it is preferable to withhold further interventions from that patient in order to allow them to die naturally, rather than by withdrawing any interventions.
• If there is no other choice, and it seems clear that a patient currently on a respirator will die soon in any case, withdrawal of a respirator can only be considered on a case-by-case basis, in consultation with a posek (senior rabbinic authority in Jewish law).

Earlier in the pandemic, when it came to ventilator triage, the focus was younger people, because sicker and older people weren’t having as good outcomes, and you wanted to use the ventilator for the shortest time possible and take up the least resources of staff and ICU space. Now, though, older people get priority because they need it more. The goal, always, is to save more lives.

There is a Talmud teaching about how, in a burning home, if you only have time to save one person, you save a person before you save holy items, and you save someone certain to survive over someone who is very sick. Secular bioethics talks about saving the most “life years”—in Jewish philosophy we don’t accept that. We save everyone equally, with the caveat that if someone is terminal within a year, you’d save the person who can live a full life.

The Jewish philosophy of triage is to try to save the people you have the best chance of saving, but not the best or worst off. So if people can wait, they should wait. If people are going to die, don’t waste the resources. This is all based on a ruling in the Talmud—in modern philosophy you may know it as the trolley problem. The trolley is going down the tracks and it’s gonna hit a family of six, so should you let it go and hit them, or turn it and hit one person on the other track? There’s almost an exact case in the Talmud: Someone shoots an arrow and it is going to kill five people. You’re too late to be able to block the shot entirely, but you can change its trajectory, killing one person. So should you be active or passive? The Chazon-Ish [Rabbi Avraham Y. Karlitz], one of the great rabbinic figures, said that you should divert the arrow, because it’s not considered killing the one, it’s saving the five. Again, save as many as possible: That’s the main goal in Jewish triage.

More controversially, there’s a discussion in the Talmud about whether to save the Segan Kohen Gadol [deputy high priest] or the Kohen Mashuach Milchamah [the priest appointed for war, the spiritual leader who rallies the troops], first. Why does the community need the Kohen Mashuach Milchamah? Because he’s an inspirational leader for the people. You save him first, perhaps because doing so will create trust. This could apply to politicians and community leaders publicly getting the vaccine so that people see and trust that it’s the right thing to do.

Some sources say older people who are more in danger of dying deserve first priority. But some argue we should focus on superspreaders, regardless of what they’re doing or should be doing, because vaccinating them will help stop the spread. That would mean focusing on people working in supermarkets or driving Ubers. That argument wouldn’t win cholah lifanenu—the notion that the sick person before us takes precedence over someone theoretical—but you also can’t shut down the need for food.

Laurie Zoloth Ph.D., Chicago. Professor of Religion and Ethics at the University of Chicago Divinity School. Former neonatal nurse in low-income communities. Serves on the Ethics Advisory Board of NASA and is the author of Health Care and the Ethics of Encounter: A Jewish Discussion of Social Justice.

There are many classic theories of justice and in Jewish texts about distributing scarce resources. So many of our Jewish stories are driven by scarcity: leaving Canaan, Jacob heading to Egypt and meeting Joseph because of famine … And the Talmud has many ways to think about distributive justice; the fact that there are different ways alerts us to the fact that context matters.

The problem with that Stanford hospital [where only seven medical residents were chosen to be among the first 1,300 allotted doses of the COVID-19 vaccine] was that the distribution was clearly done on status and the actual need was ignored. There’s echoes of a lot of this in classical ethical thinking. It’s part of the work of bioethics—how do you make sure the wealthy don’t get unfair advantages? How do you adjudicate that? Jewish texts talk about how judges shouldn’t be bribed, and about how there is a special need to protect and help the widows, poor, orphans: There’s a clear concern for people without access and power.

The CDC is trying to figure out how to respect competing ethical appeals. If you’re just thinking, “How do we keep people from dying?” you prioritize the people most likely to die. Old people. If you’re deciding according to a straight utilitarian scheme, you’d prioritize policemen and firemen and people running power plants, because if they’re healthy it achieves the greatest good for the greatest number in a straight-up utilitarian calculus.

Another way to look at it is that society has created vulnerabilities around race and class, and we can really see that in this terrible epidemic. People live paycheck to paycheck and can’t stay home. And because essential workers tend to be people of color, there can be an attempt to say at least this time we won’t repeat mistakes of the past. Jewish law would say, “Why are meatpackers so crowded together? Why don’t they have PPE?”

They may not need the vaccine first but they surely need a safe working situation. Bus drivers are exposed because people are getting on the bus without masks. What if the state, rather than individual bus drivers, enforced the wearing of masks? There’s no national enforcement. A good society is based on the notion that the poor deserve support. They deserve the corners of the field. The gleaners are intrinsically a part of the agricultural process; the process is made whole and completed by them claiming what is theirs. It belongs to them because God has set it up that way. It’s not a gift from a libertarian landlord. God has set up a distributive justice scheme and you are an actor in it. We may not have not learned that you must love your neighbor, we may not have understood how to have universal health care, but we can ensure that the vaccine is given out fairly. The vaccine can be used to try to correct the deep injustices of society.

During the Reagan administration, the belief took hold that the marketplace is a great way to achieve justice. A libertarian justice scheme would say to maximize freedom to achieve justice. But people want the freedom part of libertarianism without the personal responsibility part. If you don’t want to wear a mask, we should not have to provide you with medical care! And libertarians don’t usually feel, “Because I’m successful I need to give charity; I need to be one of the thousand points of light.” When someone says we should sell the vaccine to the highest bidder and use the marketplace to distribute it, it assumes that the wealthiest will use the money for social good. I don’t think we can assume that. Unless it’s Dolly Parton.

The diminution of the definition of freedom is really tragic. My small Jewish father volunteered to fight a war after Pearl Harbor. Ordinary college kids in the hundreds of thousands volunteered to go, at terrifying personal risk, across the Pacific Ocean or over to Europe in the name of real freedom. My uncle was one of the soldiers who liberated a concentration camp. Back then, life was at stake; democracy was at stake. Now freedom means the freedom not to put a mask on. It’s pathetic and cheap and absurd and so small. But the language of freedom is used as if it was meaningful. It should be the language of, “This is what we do to care for one another.” People are willing to fight as if eating in a restaurant was the most important thing in the world; they don’t seem to be arguing for their right to volunteer in a soup kitchen. American society has contracted and turned inward and we’re sitting on a pile of stuff and our rights are part of that stuff.

A liberation theology perspective would say that the poor should stand first in a distributive justice scheme. There should be preferential treatment for Latinx and Native American and African American people because there should be preferential treatment for the excluded.

[Why have the British decided to triage their vaccine based only on citizens’ ages?] It plays into the very British notion that we owe people who were in the Second World War and the generation after that who suffered deprivation on behalf of the country. There’s been very little dissent about this. You saw it when the Queen knighted the 100-year-old veteran who walked laps around his garden to raise money for NHS workers. In Britain health care is seen as a social good that everyone contributes to and that treats everyone with equality. So there’s no controversy when a Tory politician says, “We must save the NHS!” but here it’s seen as some socialist betrayal. In America health care is a business. People have to negotiate it and people see it as an individual problem—my insurance, my health care, my doctor. You’re in a competition with others for goods in a way that means that more power and more money is rewarded. The social worth of a human being has to do with the means of production.

Sander H. Mendelson, M.D., Washington, D.C. Cardiologist and Bioethics Consultant, The Center for Ethics

You don’t start by vaccinating everyone who works in a hospital—you start with the frontlines of people who come within 6 feet of people who have or may have COVID. That means doctors, nurses, technicians, housekeeping staff who make the beds and people who disinfect the rooms. It may or may not include administrators and PR people [he said dryly].

Prioritizing who gets the vaccine is a matter of judgment but also of who’s lobbying. In this country you have lots of different groups demanding that they’re essential, insisting that it’s essential to keep the airlines flying. I’d put the airlines a lot further down that list. Way below firefighters and police and the people who handle groceries, for instance. That kind of lobbying may be life, but that’s not Jewish.

[How do we ensure as Jews that people in power allocate resources ethically?] I don’t know! I’m over 75 so my risk is increased, but not as much as poor people living close together sharing bathrooms with other people. I shouldn’t get called for the vaccine before the people driving the ambulances and bringing the groceries. But how do we convey this value? You can use your power of the pen and I can talk to people about my values and beliefs.

[This isn’t the only COVID-19-related ethical issue hospitals face now, right?] We have ECMO [extracorporeal membrane oxygenation], a kind of lifesaving equipment, a kind of lung bypass. When we put it on, it’s only for the sickest of the sick who are having trouble breathing. It may or may not work. But it’s used when nothing else is helping. It’s on for several weeks or in some cases months. But when do we decide that it’s not working? And someone else is on line for this machine because there are a limited number? If we see it’s not working but the family says don’t take it off, what do we do? There’s no cut and dried answer. It’s so new to use these machines in COVID cases, we can’t go to the family yet and show them a paper with 100 results and tell them we think your family member fits in this category. Each case is discussed on its own, with great passion. Each case is a case unto itself, which is why we have ethics consultations. The most difficult cases are brought to a larger group, and the more difficult the larger the group. There’s no easy way out. You’re dealing with a life.

Rabbi Eleanor Smith, M.D., Chicago. Reform rabbi turned practicing internist.

Ours is a tradition with a deep reverence for age. We wish old people ad meah v’esrim, may they live to 120, the age Moses was. We could borrow from the vaunted tales of our avot v’emahot that giving priority to those who’ve lived a certain number of years is a reasonable one.

The most useful kernel of tradition I can think of—and it’s not too terribly flattering to our tradition—is the midrash about two men who are in extremis in the desert and one finds a leather pouch of water. The rabbis debate who should drink it. Should they share? Does it belong to the man who found it? The narrative makes clear that if they share, they won’t make it to their destination alive. [Rabbi Akiva’s ruling] is that the one who found it should drink all the water.

All creatures in our tradition are created b’tzelem elohim, in God’s image. In Judaism there’s no original sin, and you don’t accrue merit as you go along—you aren’t forbidden from the vaccine if you haven’t achieved a certain level of chut, merit. The difficulty of trying to deploy our tradition, which doesn’t assert native hierarchies, is that we’re attempting to do so in a culture where there are deeply ingrained social hierarchies and varied access to care. And that’s a challenge.

What we Jews need to do to the degree we can is to support the mechanisms in our culture and health care system that allow for equal access to care, including the new vaccine. I’d like to believe the Jews who are already inclined to social justice endeavors have already been focusing energy and effort in 2020 toward justice and fairness, and our change continues.

I receive multiple emails a day from patients asserting their need and place in the hierarchy of distribution. I try to offer them reassurance of the efficacy of social distancing and masks and good hand hygiene, and I reassure them that their time is coming. We keep a stratified list of our patients in terms of age and comorbidities, and we will be in touch when it’s their turn. And for people who are expressly panicked, I’ve noted that there may be a benefit to them of waiting. We’ve never had a vaccine rushed to the marketplace with this kind of speed, entwined with this degree of political considerations. It was tested on [tens of thousands of] people—that’s nothing. No pregnant or breastfeeding women were part of the cohort. So not going first may end up being an inadvertent advantage, because the early recipients will be the ones to experience the side effects. In no way do I dismiss the extraordinary people who created the vaccine, but the newness and relatively small scope of testing, which were an inevitability given the speed it was brought to market, do raise questions. We learn more about the virus all the time. There was a high level of certainty at the beginning that the virus could be spread through contact, so households were wiping down every single thing from the grocery store, but now fears of transmission through surfaces are essentially not an issue. We’re always playing catch-up.

Jennifer A. Thompson, Ph.D., Los Angeles. Maurice Amado Professor of Applied Jewish Ethics and Civic Engagement, Cal State Northridge.

One of the things that came to mind about the guardrail on the house as a metaphor for our behaviors is that it protects us and others. We have to keep from infecting others inadvertently. We need to think of k’vod ha’briot, the value of human dignity. And we have to think about marit ayin [literally “perception of the eye”]: How does our behavior look to those who see it? If people observe you not wearing a mask or doing other reckless things and those people think you’re smart and do things for good reasons, you’re leading them astray. Tochecha [reproof], the principle of rebuke, is if you see someone doing something real bad, you approach them privately and express their concern for their ethical well-being so they have the chance to correct it, privately and with compassion. It’s not a free pass to yell at someone or an opportunity to criticize a community you would have criticized anyway.

My sense is things are unfolding properly in my area. I’ve heard that the janitors and support staff are being vaccinated in the hospitals around me, which is good. But we have to continue to respect the lockdown and other rules. Here in California, we’re down to 0% ICU capacity. If you leave your house and get in a car crash, you might not get the care you’re expecting because the hospitals simply can’t do it. I’m deeply troubled by people going on vacation right now. Jewish ethics expect us to act with the health and safety of others in mind all the time. And the introspective part seems to get lost when people are trying to find ways to rabbi themselves out of the requirements.

We need to think about who has the most ability to protect themselves without the vaccine and who has the least. One group with very little ability to protect themselves that I haven’t heard being advocated for in any official capacity is prisoners. [The 2.3 million incarcerated people in the USA are five times as likely as the general populace to contract COVID-19 and three times more likely to die.] I can only assume the reason is that people will be mad that someone who is “a bad person” might jump the line ahead of someone they’d consider a good person. I don’t think Judaism allows us to look at it that way. A person still has value even if they’ve done bad things.

Whoever is creating the vaccine protocol needs to reach out the widest possible set of stakeholders. It’s not reasonable to expect any one person to think of everything. So how do you cast the net widely enough and quickly enough to help people? You need to talk to public health officials who have planned ahead for epidemics; it’s not like we’ve never heard of a pandemic before this year. A huge problem in our society is that the value of human life is about how much economic value you can produce. That’s not how Jewish tradition looks at it at all, in any way.