Contact Tracing, Civil Liberties and Public Health (sources only)

Framing: How do we arrive at contemporary Jewish ethics?

Elliot N. Dorff, “A Methodology for Jewish Medical Ethics.”
If… we judge that innovations in medical practice have made conditions relatively different from what they had previously been, we will have to stretch some halakhic and aggadic sources beyond their original meanings. We should do this in order to retain clear connections to the tradition… at the same time, we should openly state what we are doing- namely, that we are choosing both the texts to apply and the interpretations of those texts in order to develop a Jewish medical ethic which carries tradition, Jewish concerns effectively into the contemporary setting.¹

Rabbi Mira Wasserman, Center for Jewish Ethics

Jewish Values and the Coronavirus
Video courtesy of Reconstructing Judaism

Values for Considering Contact Tracing: Health, Privacy and Community

1. Preserving Life

Rabbi Aryeh Klapper, A Teshuvah Regarding Pikuach Nefesh in a Time of Pandemic

CMTL Shavuot Reader 2020 Edition

[The concept of] Shomer petaim Hashem [literally, “the Lord preserves the simple”] allows people to engage in at least some forms of dangerous but remunerative employment, so long as the risks involved are considered negligible by one’s society. Similarly, Rav Aharon Lichtenstein zt”l would ask when teaching Bava Kamma, which assigns compensation for all the various destructive things that bulls can do: Why didn’t the Torah just ban owning bulls? Rabbi Dr. Moshe Tendler asks the same question on the societal level...If pikuach nefesh overrides everything, why is it permitted for a state to build parks, rather than spending its entire GDP on healthcare?

The answer is not that jobs, bulls and parks are more important than pikuach nefesh. Rather, we need to recognize that “most important” values should not become “exclusive values.” Preserving life is an enormous value, but other values are what makes life worth preserving. Shomer petaim is just one of the 17 principles halakhah used to hedge pikuach nefesh about and ensure that it does not utterly dominate the halakhic scene.

2. On Privacy

3. The Necessity of Community Trust

Alan M. Kraut, “Immigration, Ethnicity, and the Pandemic.”

At times, native-born Americans' fear of disease from abroad became a rationale for an equally great and preexisting prejudice, fear of the foreign-born, or nativism… At the end of the 19th century, tuberculosis was dubbed the “Jewish disease” or the “tailor's disease… Not surprisingly, the Spanish influenza epidemic of 1918 aroused fears of anti-Semitism within the Jewish immigrant community. History had taught Jewish spokespeople that they must at all costs deflect blame for the pandemic away from Jewish immigrants lest they trigger the sort of medicalized anti-Semitism they had left Eastern Europe to escape. At the same time, the health and safety of the people had to be protected by discussing disease prevention in every available public forum... Foreign-born physicians, ethnic community leaders, and the foreign-language press were important mediators between public health officials and immigrants. They labored to diminish fears of the native-born that newcomers might be responsible for the epidemic. Institutions organized by the ethnic groups to which the newcomers belonged provided much-needed assistance to their own and to others during the crisis...The foreign-born needed information and assistance in coping with influenza. Among the two largest immigrant groups, Southern Italians and Eastern European Jews, immigrant physicians, community spokespeople, newspapers, and religious and fraternal groups shouldered the burden. They disseminated public health information to their respective communities in culturally sensitive manners and in the languages the newcomers understood, offering crucial services to immigrants and American public health officials.²

Jacobson v. Massachusetts, 197 U.S. 11 (Justice Harlan, 1905)

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members (197, 27).But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that… “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.”(197, 26).³

Jay Stanley

Human Rights and Surveillance during COVID-19

Footnotes

1. Elliot N. Dorff “A Methodology for Jewish Medical Ethics,” in Contemporary Jewish Ethcis and Morality: A Reader, edited by Elliot N. Dorff & Louis E. Newman, 166. New York: Oxford University Press, 1995.
2. Alan M. Kraut, “Immigration, Ethnicity and the pandemic,” Public Health Reports 123 Suppl 3 (2010): 123-33, doi:10.1177/00333549101250S315
3. Jacobson v. Massachusetts, https://supreme.justia.com/cases/federal/us/197/11/#tab-opinion-1921098