1. As we shall discuss below, though, the economic realities behind these arguments are real, but they argue not for assisted suicide, but for much greater utilization of hospice care.

2. Compassion in Dying v State of Washington, 79 F 3d 790 (9th Cir 1996); Quill v Vacco, 80 F 3d 716 (2d Cir 1996). (A subsequent petition for the Ninth Circuit to rehear the case en banc was denied: 85 F 3d 1440 [9th Cir 1996]). The Ninth Circuit also invoked the Supreme Court's past decisions on abortion in interpreting the Fourteenth Amendment's liberty clause to protect a person's right to make his or her own health care decisions. Thus Judge Stephen Reinhardt, writing for an 8-3 majority, stated that “By permitting the individual to exercise the right to choose, we are following the constitutional mandate to take such decisions out of the hands of government, both state and federal, and to put them where they rightly belong, in the hands of the people.”

3. See, for example, Exod 19:5Google Scholar; Deut 10:14Google Scholar; Psalms 24:1Google Scholar. See also Gen 14:19, 22Google Scholar (where the Hebrew word for “Creator” [koneh] also means “Possessor,” and where “heaven and earth” is a merism for those and everything in between) and Psalms 104:24Google Scholar, where the same word is used with the same meaning. The following verses have the same theme, although not quite as explicitly or as expansively: Exod 20:11Google Scholar; Lev 25:23, 42, 55Google Scholar; Deut 4:35, 39; 32:6Google Scholar.

4. Bathing, for example, is a commandment according to Hillel, : Leviticus Rabbah 34:3Google Scholar. Maimonides summarizes and codifies the rules requiring proper care of the body in M.T. Laws of Ethics (De'ot), chs 3-5. He spells out there in remarkable clarity that the purpose of these positive duties to maintain health is not to feel good and live a long life, but rather to have a healthy body so that one can then serve God.

5. The prohibition against injuring oneself is stated in M., Bava Kamma 8:6 (90b)Google Scholar; cf. M.T., Laws of Injury and Damage 5:1Google Scholar. Tannaitic sources recorded in the Talmud (B., Bava Kamma 91bGoogle Scholar) state divided opinions as to whether individuals may inflict non-fatal wounds on themselves. The later sources generally agree that people are not allowed to injure themselves, although some restrict the prohibition against self-injury to cases where wounds are produced (Hemdat Yisrael, commandment 310), and some think that the prohibition is not a violation of Gen 9:5Google Scholar or Deut 4:9Google Scholar (interpreted as a command to maintain one's health) but is rather rabbinic (Lehem Mishneh on M.T., De'ot 3:1Google Scholar). In any case, people who injure themselves are not punished specifically for doing that, but they may be punished at the hands of Heaven (T., Bava Kamma 9:11Google Scholar), and rabbinic courts may inflict disciplinary flogging (makkat mardut) for injuring oneself (M.T., Laws of Murder 11:5Google Scholar; S.A., Hoshen Mishpat 420:31; 427:10Google Scholar)—understandable, but more than a bit ironic! See “Hovel,” Encyclopedia Talmudit 12:681 f (Hebrew)Google Scholar.

The prohibition against suicide is not recorded in the Talmud itself. The post-talmudic tractate, Semahot (Evel Rabbati) 2:1–5Google Scholar serves as the basis for most of later Jewish law on suicide, together with Genesis Rabbah 34:13Google Scholar, which bases the prohibition on Gen 9:5Google Scholar. Cf. M.T., Laws of Murder 2:3Google Scholar; Laws of Courts (Sanhedrin) 18:6Google Scholar; S.A., Yoreh De'ah 345:1ffGoogle Scholar. See “Suicide,” Encyclopedia Judaica 15:489–91Google Scholar.

6. B., Sanhedrin 74aGoogle Scholar.

7. B., Avodah Zarah 18aGoogle Scholar; S.A., Yoreh De'ah 339:1 (with gloss)Google Scholar.

8. II Sam 17:23Google Scholar. See Rosenbaum, Irving J., The Holocaust and Halakhah 36 and 162 n 21 (NY: Ktav, 1976)Google Scholar, for a discussion of the origins of this maxim. Burying suicides outside the cemetery: M.T., Laws of Mourning 1:11Google Scholar; S.A., Yoreh De'ah 345:1Google Scholar—or at its edge: Responsum #763 of Rabbi Solomon ben Abraham Adret (the Rashba, c. 1235-c. 1310).

9. B., Gittin 57bGoogle Scholar.

10. B., Sanhedrin 74a–74bGoogle Scholar. Cf. M.T. Laws of the Foundations of the Torah, ch 5; S.A., Yoreh De'ah 157:1Google Scholar.

11. For example, Tosafot on B., Avodah Zarah 18aGoogle Scholar, s.v. v'al y'habel ‘tzmo: Tosafot on B., Gittin 57bGoogle Scholar, s.v., v'kaftzu.

12. Kol Bo 'al Aveilut, 319, sec 50; Tuchinski, Yehiel M., Gesher Ha-Hayyim 1:271–73 (Jerusalem: Solomon, 1960)Google Scholar; Klein, Isaac, A Guide to Jewish Religious Practice 282–83 (NY: Jewish Theol Sem of Amer, 1979)Google Scholar, (but note the mistake in citing the passage from Gesher Ha-Hayyim: it should be 1:271–73Google Scholar, as noted above, not 1:71-73, as printed there). This may be based on an earlier source—namely, B'samim Rosh #345—claiming to be the opinion of the much-respected Rabbenu Asher (the “Rosh,” c. 1250-1327), who there permits full Jewish burial of people who commit “suicide because of a multiplicity of troubles, worries, pain, or utter poverty.” That source, even if accepted as authentically the opinion of Rabbenu Asher, does not permit committing suicide in the first place, and neither do the later Jewish authorities cited above; they only permit normal Jewish burial after the fact.

13. See Rosenbaum, , The Holocaust and Halakhah 35–40Google Scholar.

14. While it is distinctly uncomfortable to second-guess a rabbi ruling in those dire circumstances, one must also note, as Rabbi Aaron Mackler has pointed out to me, that Rabbi Oshry's decision is, in the end, one rabbi's ruling, and since it extends permission to commit suicide to cases beyond the well-established exceptions of martyrdom, it may simply be an erroneous ruling. I would prefer to deny its relevance as a precedent on the basis of the important distinctions between his case and ours—namely, that the man in his case faced the prospect of endangering the lives of others through no fault of his own, while the cases we are discussing include no such factor.

15. The prohibition of putting a stumbling block before the blind: Lev 19:14Google Scholar. The rabbinic extension of that prohibition to apply not only to the physically blind, but to the morally blind as well: B., Pesahim 22bGoogle Scholar; B., Mo'ed Katan 5a, 17aGoogle Scholar; B., Bava Mezia 75bGoogle Scholar; etc. (The principle is also applied to prohibit intentionally giving bad advice to people [see Sifra on this verse] and to those who are theologically blind in that they might be tempted to worship idols [B., Nedarim 42bGoogle Scholar].)

16. If die aide additionally convinced the person to commit suicide, the aide may be considered an “inciter” (masit). One who incites another person to worship idols is subject to death by stoning (Deut 13:7Google Scholar; M., Sanhedrin 7:4, 10Google Scholar). In the case of other sins, though, the defendant can invoke the talmudic principle (B., Bava Kamma 56aGoogle Scholar), divrei ha-rav ve-divrei ha-talmid mi shorn ‘in? (“When the words of the Master and the words of the student [conflict], to whom does one listen?)—the Master here being God and the student a human being. According to the Talmud (B., Sanhedrin 29aGoogle Scholar), however, those who incite other Jews to engage in idolatry cannot avail themselves of this defense because with regard to that offense the Torah (Deut 13:9Google Scholar) specifically says, “Show him no pity or compassion, and do not shield him.” Thus while inducing someone to commit any other sin —like suicide—is certainly not laudable behavior, it is not culpable in law because each of us is responsible for knowing right from wrong and for resisting lures to do the wrong.

17. “Strengthening one to commit a sin”: B., Nedarim 22aGoogle Scholar; B., Gittin 61aGoogle Scholar. “Helping one to commit a sin”: B., Avodah Zarah 55bGoogle Scholar. I would like to thank Rabbi Ben Zion Bergman for alerting me to this point.

18. See B., Bava Batra 22aGoogle Scholar, and see Tosafot there.

19. B., Bava Kamma 56aGoogle Scholar, which refers, among other such cases, to the one in B., Bava Kamma 47bGoogle Scholar concerning the person who places poison before a neighbor's animal.

20. M., Bava Kamma 8:7 (92a)Google Scholar; M.T., Laws of the injury and Damage 5:11Google Scholar; S.A., Hoshen Mishpat 421:12Google Scholar.

21. For a sampling of varying religious approaches to assisted death, including my own more extensive treatment of Jewish perspectives on this issue, see Must We Suffer Our Way to Death? Cultural and Theological Perspectives on Death by Choice, Hamel, Ronald P. and Dubose, Edwin R., eds, (Dallas: S Meth U Press, 1996)Google Scholar.

22. M., Avot 2:16Google Scholar; B., Berakhot 4aGoogle Scholar; B., Eruvin 19aGoogle Scholar; B., Ta'anit 11aGoogle Scholar; B., Kiddushin 39bGoogle Scholar; Genesis Rabbah 33:1Google Scholar; Yalkut Ecclesiastes 978. Among later Jewish philosophers, Saadia is the first to affirm this doctrine (Book of Opinions and Beliefs, Books 4 and 5), while Maimonides rejects it (Guide for the Perplexed, Pt III, Chs 16-23.

23. B., Berakhot 5bGoogle Scholar. I would like to thank Rabbi Baruch Frydman-Kohl for suggesting the use of this source here.

24. See Dorff, Elliot N., A Jewish Approach to End-Stage Medical Care, Conservative Judaism 43:3 at 3-51, esp 17-19 and 34–39 (Sp 1991)Google Scholar.

25. Reisner, Avram Israel, “A Halakhic Ethic of Care for the Terminally III,” Conservative Judaism 43:3 at 52–89 (Sp 1991)Google Scholar and especially Avram Reisner, Israel, Mai Beinaihul 90–91, ibidGoogle Scholar.

In Rabbi Reisner's view, I would imagine, if the physician knowingly administers enough morphine to kill a person, the physician would be liable for murder, even though his/her primary intent was to reduce pain. For me, in contrast, the primary intent of the physician to reduce pain makes such a case not one of injury at all, little less murder, but rather one of permissible benefit. Therefore the physician would not be liable for violating even the prohibition against indirect injury but would rather be carrying out his or her mandate to heal.

This case must be distinguished from acquiescing to a patient's request to die, even when the death is requested for the express reason of relieving pain. To kill oneself, or to ask others to help in doing so, is forbidden in Jewish law, and so if that is the intent, it is illegitimate. In practice, this difference in motive may translate into the amount of medication administered. Specifically, in light of the fact that within a given range of dosages of morphine doctors never know whether a given patient will die or not, these cases never fall into the talmudic category of p'sik reshai v'al yamut (“Can you cut off the chicken's head and it will not die?” [B., Shabbat 75aGoogle Scholar; see Rashi on this principle on B., Sukkah 33b]Google Scholar, for within that range the result is never inevitable. Therefore doctors' attempt to relieve pain is legitimate, in my view, even if they fear that the amount they need to use in the last stages of life may be crossing the line into a fatal dosage for a given patient, for they are still within the range where they do not know that for certain. On the other hand, to administer a dosage that beyond all reasonable doubt will kill the person is to commit murder, even when the stated intent of the physician is to relieve pain and even if the patient requests it. (I want to thank Rabbi Gordon Tucker for calling my attention to the need to make this distinction clearly.)

26. See, for example, Spero, Moshe Halevi, Judaism and Psychology: Halakhic Perspectives (NY: Ktav, 1980)Google Scholar. I would like to thank Rabbi Mayer Rabinowitz for raising the question discussed in this paragraph.

27. As Rabbi Aaron Mackler has pointed out to me, the fact that American states do not criminalize suicide may be a function of the medicalization of suicide in our time rather than recognition of a legal right. That is, instead of putting those who attempt suicide in prison, we sedate them, treat them for depression, and restrain them if necessary. That does not mean, though, that suicide is a legal right, for if it were, we would not try to prevent people from taking their lives.

The Ninth Circuit, though, has interpreted suicide, and therefore also assisting in suicide, as a legal privilege embedded in the Fourteenth Amendment's guarantee of liberty. Presumably, then, the only reason for trying to prevent people from committing suicide is that we doubt that they have the mental competence required by law to make that decision.

28. See n 3 above.

29. This includes even inanimate property that “belongs” to us, for God is the ultimate owner. This is the law of ba 'al tashhit, the prohibition of destroying the world when human need does not require that. Cf. Deut 20:19–20Google Scholar; B., Bava Kamma 8:6Google Scholar, 7; B., Bava Kamma 92a, 93aGoogle Scholar; M.T., Laws of Murder 1:4Google Scholar, where Maimonides specifically invokes this theological basis for the law against suicide; M.T., Laws of Injury and Damage 5:5Google Scholar; Sefer Ha-Hinnukh, Commandment 529; S.A., Hoshen Mishpat 420:1, 31Google Scholar. See Schwartz and Cytron (1993).

30. As Rabbi Myron Geller pointed out to me, one could conclude the exact opposite—namely, that since God inflicted the patient's illness, aiding the person in committing suicide would be just assisting God in bringing about what is presumably God's intended goal. While that is certainly logical, it is not the line of reasoning that the Jewish tradition has followed. On the contrary, Jewish law, as noted above, has consistently denied people the right to commit suicide or assist others in that path.

31. Tuchinski, Yehiel M., Gesher Ha-Hayyim 269–70 (Jerusalem: Solomon, 1947, 1960)Google Scholar [Hebrew; this is my translation]. He adds there that the person who commits suicide “is like one who flees to a place where the hand of the government will catch him and can bring him back to this place with additional punishment also for his escape”—an understandable metaphor in his theology, but one that unfortunately makes life a prison sentence!

32. I say this even though one Reform writer has maintained the contrary, claiming that contemporary Jews overwhelmingly believe that their body is their own and thus refuse to abide by medical directives based on God's ownership of our bodies. See Maibaum, Matthew Menachem, A ‘Progressive’ Jewish Medical Ethics: Notes for an Agenda, J of Reform Judaism 33:3 at 27–33 (Summ 1986)Google ScholarPubMed.

33. B., Berakhot 58bGoogle Scholar; M.T., Laws of Blessings 10:12Google Scholar. For an excellent account of these laws and the theology and practice surrounding them, see Astor, Carl, “…Who Makes People Different”: Jewish Perspectives on the Disabled (NY: United Synagogue of Amer, 1985)Google Scholar.

34. M.T., Laws of Ethics (Hilkhot De'ot) 3:3; see also 4:1Google Scholar.

35. The argument that assisting a suicide would be to further God's purpose in making the person sick in the first place is specifically rejected by Rashi and by Tosafot. Commenting on the Talmud's statement (B., Bava Kamma 85aGoogle Scholar) that Exod 21:19Google Scholar (ve-rappoh yerappeh) serves as permission for physicians to heal, Rashi (s.v., nitnah reshut la-rof'im lerappot) says, “And we do not say that the Merciful One struck [the patient] and he [the physician illegitimately] heals.” Tosafot there (s.v. shenitnah reshut larofeh lerappot) points out that one can derive authorization for the physician to heal from just the first of the words in the phrase in Exod 21:19Google Scholar, ve-rappoh yerappeh, and so why does the Torah state the verb “to heal” in two different forms? Because if it were only stated once, Tosafot suggests, one might think that the physician may heal only those maladies inflicted by human beings but not those inflicted by God; the double presence of the verb in the biblical verse indicates that the physician has permission to heal even illnesses inflicted by God.

36. This is the law of pikkuah nefesh, saving a life, whether one's own or someone else's; see B., Sanhedrin 74aGoogle Scholar and B., Yotna 85bGoogle Scholar, and see ns 3-6 above and the text for those notes. In American law, by contrast, until recently, when “Good Samaritan laws” were passed by many states, you could actually be sued if you tried to save a person in good faith and some injury resulted, and to this day no American law requires that you go out of your way to save a life. This is, in my view, American individualism at its worst.

Along the same lines, while aiding a suicide is against the law in most states, committing suicide itself is not a violation of the law, another manifestation of American individualism. (Most life insurance policies, though, become null and void if the insured commits suicide.)

37. See my short essay, Moral Distinctions, Sh'ma: A Journal of Jewish Responsibility 21/401, 6–8 (11 16, 1990)Google Scholar.

38. See Monmaney, Terrence, How We Die May Be Behind Assisted Suicide Debate, Los Angeles Times, A1, A9 (01 8, 1997)Google Scholar.

39. For a fascinating comparative study of how the same diseases are treated differently in the United States, Great Britain, France, and Germany as a reflection of their national cultures, see Payer, Lynn, Medicine and Culture (NY: Henry Holt, 1988)Google Scholar.

40. On the other hand, in cases where patients are not seeking to die and choose to endure some pain in order to be able to remain conscious, that request must be honored. It is permissible, in my view, to use whatever amount of medication is necessary to alleviate pain, but it is not required to relieve pain at the cost consciousness if the patient chooses instead to remain conscious with some degree of pain.

41. This paragraph is based on the article, How We Die May Be Behind Assisted Suicide Debate, by Monmaney, Terrence, Los Angeles Times A1, A9 (01 8, 1997)Google Scholar.

42. B., Nedarim 39b–40aGoogle Scholar.

43. B., Nedarim 39b–40aGoogle Scholar.

44. B., Berakhot 6aGoogle Scholar; 7b-8a; J., Berakhot 5:1Google Scholar; cf. M.T., Laws of Prayer 8:1Google Scholar.

45. Herring, Basil F. quotes and discusses those sources in his book, Jewish Ethics and Halakhah for Our Time ch 2, entitled Truth and the Dying Patient, 47–66 (New York: Ktav, 1984)Google Scholar.

46. S.A., Yoreh De'ah 335:7; 338:1Google Scholar.

47. For some poignant examples of ethical wills, including many modern ones, see Riemer, Jack and Stampfer, Nathaniel, eds., Ethical Wills: A Modern Jewish Treasury (NY: Schocken, 1983)Google Scholar.

For some suggestions for preparing an ethical will, see Riemer, Jack and Stampfer, Nathaniel, eds., So that your values live on—Ethical Wills and how to prepare them [capitalized that way] (Woodstock, VT: Jewish Lights Pub., 1991)Google Scholar.

48. See Kubler-Ross, Elisabeth, Death Is of Vital Importance (Barrytown, NY: Station Hill Press, 1995)Google Scholar, for some striking examples of how meaningful and reconciling the last stages of life and death itself can be. I would like to thank my friend and colleague, Rabbi Elie Spitz, for alerting me to this book.

49. The poetic expression comes from Shakespeare, Hamlet, Act III, Scene I, line 67.

50. Lev 19:16Google Scholar; B., Sanhedrin 73aGoogle Scholar.

51. Just as bad as recognizing no distinctions is creating sweeping, unexceptionable categories rather than discerning the fine lines that characterize real moral life. See my response to Bleich, J. David in my article, Moral Distinctions, Sh'ma: A Journal of Jewish Responsibility, 21/401 at 6–8 (11 16, 1990)Google Scholar.