The Torah's concern for the protection of life and health is axiomatic. In virtually all instances, Torah restrictions are superseded when a life-threatening emergency exists. If the situation is extenuating, but not life-threatening, then the rule of thumb is that the Torah restriction remains in force. Sometimes, however, mitigating factors allow the overriding of a rabbinic injunction because of extenuating circumstances.
A contemporary halachic question which relates to this issue is as follows: Can a person suffering from angina or other heart disease carry his medication on Shabbos through a public thoroughfare? In case of a sudden attack, there would indeed be a life threatening need that permits procurement of such medication through any necessary means. However, there is no medical reason that compels the patient to leave his home where his medicine is kept. Is there halachic basis to allow him to carry his medication, since the possible medical emergency can be completely avoided? Granted that this would result in a great hardship by making the patient housebound on Shabbos, yet this deprivation would not constitute a life-threatening emergency and would not be grounds for overriding a Torah-proscribed Shabbos prohibition.
The halachic question is two-fold: Can carrying the medicine be considered a rabbinic violation, as opposed to a Torah violation, thus making it more acceptable? Does there exist a halachic basis for permitting the overriding of a rabbinic prohibition because of hardships?
The same principles can be applied to other medical situations. For example, the diabetic who receives insulin injections is usually medically advised to carry with him some food items containing sugar, as a precaution against insulin shock; and certain asthmatics and other allergy sufferers are advised never to go anywhere without their medication available. Would these patients be allowed to carry their sugar or medicine on Shabbos in a way that involves violating only a rabbinic decree?
Most contemporary authorities who address this issue base their discussion on a responsum of Rav Shmuel Engel, dated 9 Tammuz 5679 (July 7, 1919). 1
At the time of this question, there was a government regulation in force, requiring the carrying of identification papers whenever one walked outside, with serious consequences for those apprehended in violation. Rav Engel was asked whether one could place his identification papers under one's hat on Shabbos while walking to shul. Rav Engel's analysis of the halachic issues involved will clarify many of the aspects of our question.
Shabbos violations fall under two broad headings: those activities that are forbidden min hatorah (Torah-mandated), and those that are forbidden by rabbinic injunction, but do not qualify as melacha (forbidden work) according to the Torah's requirements.
Torah law is not violated unless the melacha is performed in a manner in which that activity is usually done. If the act is done in a peculiar way, such as an item being carried in a way that things are not normally carried, it constitutes a rabbinic violation, but is permitted under Torah law. This deviation is called a shinui. 2
Rav Engel points out that carrying identification papers in one's hat would constitute a shinui, thus allowing a possibility of leniency. He quotes two Talmudic sources that permit melacha with a shinui on Shabbos because of extenuating -- but not life-threatening – circumstances.
Rabbi Marinus said, "One who is suffering is allowed to suck milk directly from a goat on Shabbos. Why? [Is not milking an animal on Shabbos a violation of a Torah prohibition?] Sucking is considered milking in an unusual way, and the rabbis permitted it because of the discomfort of the patient." 3
Tosafos notes that the leniency is allowed only if the suffering is caused by illness and not simply by thirst. The Talmudic text and commentary of Tosafos are quoted as halachic decision by the Shulchan Aruch. 4
There is another Talmudic text with a similar conclusion:
Nachum of Gaul said, "One is allowed on Shabbos to clean a spout that has become clogged by crushing [the clogged matter] with one's foot. Why? [Is it not forbidden to perform repair work on Shabbos?]Since the repair work is done in an unusual manner, the Rabbis permitted it in a case of potential damage."
Based on these Talmudic sources, Rav Engel concludes that the rabbis permitted the performance of melacha with a shinui under extenuating circumstances, even though rabbinic prohibitions are not usually waived for these situations. Furthermore, he points out two other mitigating factors: according to most opinions, the prohibition of carrying on Shabbos in our cities (even in the usual fashion) is rabbinic because "our public areas do not constitute a public domain according to Torah law." And carrying identification papers would constitute a melacha done without any need for the result, which would also provide a reason to be lenient, as will be explained.
Melacha She'einah tzricha legufah
In several places, the Gemara 5
records a dispute between Rabbi Yehudah and Rabbi Shimon as to whether a melacha she'einah tzricha legufah, an action done intentionally and in the normal fashion, but without a need for the result of the action, is forbidden by the Torah or only rabbinically. For example, carrying a corpse from a private domain into a public domain would not constitute a Torah desecration of Shabbos according to Rabbi Shimon, since one's purpose is to remove the corpse from the private domain, and not because he has a need for it in the public domain. Similarly, snaring or killing a predator insect or reptile would be a melacha she'einah tzricha legufah, since one has no need for the caught reptile, and therefore constitutes only a rabbinic violation, according to Rabbi Shimon. Both of these cases violate Torah prohibition according to Rabbi Yehudah, who opines that a melacha she'einah tzricha legufah is a Torah-mandated prohibition.
Although the Rambam 6
follows the opinion of Rabbi Yehudah, the majority of halachic authorities concur with Rabbi Shimon. 7
Rav Engel considers carrying identification papers in one's hat as a melacha she'einah tzricha legufah, because the carrier has no personal use for the papers and is carrying them merely to avoid injury or loss. He compares this to the killing of the snake, where the intent is to avoid injury. Although his point is arguable, as evidenced by a later responsum, 8
Rav Engel reiterates his position that this situation qualifies as a melacha she'einah tzricha legufah.
Placing identification papers in one's hat and carrying them that way is permitted by Rav Engel because of the following mitigating reasons.
1. The Gemara permits performing a melacha she'einah tzricha legufah under extenuating circumstances (illness or financial loss).
2. In any case, the prohibition involved, even if performed in a regular manner, would involve only rabbinic prohibition, not a Torah law. This conclusion is justified, either because of the principle of melacha she'einah tzricha legufah, or because no Torah-mandated public domain exists today.
3. Carrying the identification papers is to be allowed only to attend the synagogue or to perform a different mitzvah.
This responsum provides us with strong halachic precedent, although certain aspects of our case differ from those of Rav Engel's. Firstly, whereas in Rav Engel's case, the identification papers had no intrinsic worth to the carrier, the nitroglycerin tablets do have intrinsic value to the patient. This would render them a melacha hatzricha legufah, a melacha performed with interest in the results being done, which constitutes a Torah- forbidden melacha. Thus, one of the reasons for being lenient is nullified.
Secondly, Rav Engel permitted the carrying of identification papers only for the performance of a mitzvah. Would he have allowed a greater leniency for someone who is ill? Bearing in mind the case of Rabbi Marinus, where permission is based on medical needs, could leniency be extended to allow carrying with a shinui, even for social or other reasons?
Several later halachic works discuss the question of a patient carrying medication with a shinui, as a precaution against sudden attack. Rav Yekutiel Y. Greenwald 9
suggests that a sugar cube be sewn into the pocket of a diabetic's coat before Shabbos, so that he would not be carrying in the usual manner. Rav Greenwald bases his opinion on the Gemara 10
which allows the carrying of an amulet on Shabbos as a medicinal item, and the responsum of Rav Shmuel Engel quoted above. Unfortunately, the comparison to the law of kamayah (amulet) seems strained. The halacha clearly states that the kamayah must be worn in the way that it is normally worn, and that it can be worn only if it is a proven remedy; under these circumstances, the kamayah is considered to be like a garment. There does not seem to be a basis in these considerations to allow carrying for non-life threatening medical need. However, Rav Greenwald allows the diabetic to go outside even for non-mitzvah-related activities.
Rav Eliezer Yehuda Waldenberg 11
cites the responsum of Rav Greenwald, but disputes his conclusions sharply. In addition to the difficulty we have noted, he also disputes two assumptions of Rav Greenwald.
1. Whereas Rav Greenwald says that one could allow the sugar cube (or medicine tablet) to be sewn into the garment in order to carry it on Shabbos, Rav Waldenberg finds no halachic source to permit carrying an item in this fashion.
2. Rav Waldenberg writes that the only situation in which Rav Engel permitted the carrying with a shinui was when the activity would have constituted a melacha she'einah tzricha legufah. This applies to carrying identification papers, where the carrier has no personal need for the papers and is carrying them only to avoid being apprehended. It does not apply to the case of medication, where the patient wants the medicine available for his own use.
Rav Waldenberg concludes that the leniency proposed by Rav Engel is not applicable to our situation, and that this patient would not be allowed to carry his medication outside, even when using a shinui. A mediating position is taken by Rav Yehoshua Neuwirth. 12
Although he equates the situation of the person carrying identification papers to the one carrying medication, and does permit the carrying of medication with a shinui for the propose of performing a mitzvah, Rav Neuwirth recommends other specific guidelines, a discussion of which is beyond the scope of this article.
In a responsum on this topic by Rav Menashe Klein, 13
he concludes that a patient is allowed to carry nitroglycerin tablets with a shinui for the purpose of going to shul or for performing another mitzvah. Rav Klein also includes two other reasons to be lenient:
1. There is currently no public domain according to Torah definitions.
2. He considers this carrying to be a melacha she'einah tzricha legufah, a point which is certainly disputed by the other authorities quoted.
An interesting comment quoted in the name of the Chasam Sofer by the Levushei Mordechai 14
should also shed light on this issue. Levushei Mordechai reports that the Chasam Sofer was in the habit of carrying a handkerchief tied around his wrist outside of the eruv on Shabbos, because it is considered carrying with a shinui and is permitted, because of the need for the handkerchief. The prohibition of rabbinic origin is overridden by the need for personal dignity (kavod haberiyos). No stipulation is made by Levushei Mordechai that the walking is done exclusively for a mitzvah purpose.
One might think that the discomfort of staying home on Shabbos provides greater reason to be lenient than the concept of personal dignity, and that this responsum could therefore be utilized as a basis to allow carrying of nitroglycerin with a shinui. However, few later poskim refer to the comment of the Levushei Mordechai. 15
The following conclusions can be reached:
1. There is halachic basis for permitting the performance of rabbinically–prohibited activities with a shinui, in certain extenuating circumstances.
2. Rav Engel allowed the carrying of identification papers in one's hat to enable one to perform a mitzvah.
3. Several contemporary poskim discuss this question and reach divergent conclusions.
Shu't Maharash Engel, 3:43
See Shabbos 92a, 104b
Orach Chayim 328:33
Shabbos 12a, 31b, 73b etc.
Hilchos Shabbos 1:7
I refer the reader to read my Hebrew Kuntrus on the topic, published at the end of Nimla Tal Volume I
Shu't Maharash Engel, 7:20
Kol Bo on the laws of Aveilus, Volume 2, page 20
Shabbos 60a, 67a
Shu't Tzitz Eliezer 13:34
Shemiras Shabbos KeHilchasah, Chapter 40 #7
Shu't Meshaneh Halachos 7:56
Shu't Levushei Mordechai #133
It is quoted by Shearim HaMetzuyanim BaHalacha 84:13 and by Lev Avraham Volume 1, Chapter 6.
This Shiur is published also at Rabbi Kaganof's site