This article appeared in a Jewish periodical.
Medical marijuana and Jewish law
Permissibility depends on degree of risk
Dr. Wallace Greene
Published: 27 April 2012
On April 16, Greenleaf Compassion Center in Montclair was issued a permit by the New Jersey Department of Health and Senior Services to begin growing medicinal marijuana. A permit to dispense medicinal marijuana will be issued to Greenleaf when its dispensary is operational. That is expected to occur in about six months.
A physician’s task is to heal and to do no harm. Jewish medical oaths as well as the Hippocratic oath constantly emphasize the palliative aspect of medical care. Jewish law has codified the role of the physician, and prescribes strict standards regarding the treatment of patients.
It has been documented that marijuana is an analgesic for sufferers of nausea related to chemotherapy, appetite, and weight loss related to AIDS, migraine headaches, Alzheimer’s, muscle spasms, fibromyalgia, arthritic pain, glaucoma, and other conditions. If marijuana is superior to other drugs, and concerns raised about its continued usage, we need to analyze a number of pertinent halachic issues. We need to determine whether it is permissible to prescribe marijuana according to Jewish law.
We are not dealing with legal issues from the perspective of secular law. Other states have legalized medical marijuana and New Jersey is only months away from doing so. Our discussion is framed by strictly halachic considerations.
Even where marijuana has been legalized, do its dangerous side effects militate against its use? Does compassion for the patient override concerns of possible long-term harm? Under which circumstances may a patient put himself into a potentially harmful situation? If the non-medicinal properties of marijuana promote a feeling of well-being so that a patient feels relief, does that constitute a valid reason to prescribe it?
In his responsum opposing the use of recreational marijuana, Rabbi Moshe Feinstein wrote that marijuana limits one’s ability to exercise free will, alters one’s sense of reality, impairs one’s judgment, and affects one’s ability to function. A habitual marijuana user cannot express himself freely or act responsibly. All of these prevent him from properly fulfilling religious obligations, especially prayer. Our case concerns medical, not recreational, marijuana. Jewish law sanctions the desecration of Shabbat for seriously ill individuals, exempts even those in mild discomfort from religious obligations, and extends certain exemptions to others who are ill. One who is suffering and is in such pain that only the administration of marijuana can help falls into this category.
Jewish law makes no real distinction between illness and physical pain. However, the extent to which pain justifies exemptions from religious law is the subject of some dispute. A minor, localized ache does not warrant the suspension of any religious precepts. However, pain affecting the entire body invokes the concessions applicable to “real” illness.
The halachic imperative to heal is a reflection of Judaism’s belief in the absolute sanctity and incalculable value of human life. This ethic of prioritizing human life far surpasses any other legal system in that it takes precedence over virtually all other considerations. As a result, almost any Jewish law — and by extension most civil laws — can be suspended and/or violated in order to save or even prevent a potentially life-threatening situation from developing.
Medical marijuana is used to treat patients with AIDS and those receiving chemotherapy — both of which are life-threatening scenarios — as well as those suffering from glaucoma, which Jewish law regards as equally hazardous. In fact, serious eye injury/disease was the only condition that was always regarded as “dangerous” because of the connection between the optic nerve and the brain. If one must violate the laws of Shabbat or of kashrut in such situations, Jewish law could also sanction an otherwise illegal drug, such as marijuana. In non life-threatening situations (e.g. chronic back pain, migraine headaches, etc.), medical marijuana might also be sanctioned by Jewish law if no other effective remedy is available. This is based on the concept that the halachic obligation/understanding of healing is not limited only to saving lives, but extends to the alleviation of pain and suffering, as well.
Although Jewish law forbids self-endangerment, there are acceptable assumptions of risk. Activities that society deems routine and are not themselves considered dangerous are permissible despite their potentially hazardous nature. Only clear and recognized danger is prohibited. Maimonides cautions us to abstain from any activity that is potentially harmful to one’s health. Some authorities maintain that any act, even if only possibly dangerous, is biblically prohibited and we rule stringently in cases of doubt. Others prohibit such activities based on the principle of rov, i.e. even a statistical possibility. Still others prohibit even non life-threatening activities since any harm to the body is considered potentially life-threatening.
All human activities, to one degree or another, entail some element of danger. Driving a car, crossing a street, swimming, flying in airplanes, even ingesting some medicines, all represent a potential hazard. There are no absolute guarantees of safety. Yet, despite these risks, life goes on. The Talmud analyzes these issues and concludes that risks that have become socially conventional are acceptable. Traveling the ocean or the desert may be dangerous, but since most travelers return unharmed, it is an acceptable risk.
As one rabbi explained it (Jacob Ettlinger, 1798-1871), an immediate danger is to be avoided. A potential danger may be assumed if, in the majority of cases, no harm will occur.
One might argue, therefore, that the use of any medication that may shorten the life of the majority of users cannot be automatically sanctioned simply because it is in common use. This may be the case even if the danger is far in the future and even if life expectancy is diminished only marginally.
This issue is raised because medical marijuana is usually ingested via smoking, and all available medical data confirms the dangers of smoking. However, there are no explicit halachic references to the role of statistical probability of prolonging life versus the odds of shortening life, nor are later discussions conclusive.
Compassion is one of the first of God’s attributes (Exodus 34:6-7), and since we are bidden to behave imitatio Dei, it is also a paramount virtue in Judaism. If the means are available to alleviate pain and suffering, and the treatment falls within halachic guidelines, then a good argument can be made to allow for its administration.
The Talmud records some pithy fatherly advice given by Rav to his son Chiya, including the following admonition (Babylonian Talmud tractate P’sachim 113a): “Do not take drugs.” Rashi comments that drugs are habit-forming, because “they will become an obsession and you will squander your money on them.”
Rabbi Menachem HaMeiri comments that this is just one of a number of physical indulgences to be avoided. Rabbeinu Chananel in his commentary emphasizes the habit-forming nature of drugs. Rashi’s second interpretation focuses on the possible harmful effects of drugs. What is good and efficacious for some is harmful to others. In either event, Rashi endorses Rav’s advice. Rabbi Samuel ben Meir (Rashbam) understands this advice as being medical in nature. Avoid drugs, he says, because of the reasons that Rashi gives — they are habit-forming and expensive. Even for medical treatment they are to be avoided “unless there is no alternative available.” Medicine must be taken with caution.
Indiscriminate consumption of drugs can be injurious or fatal. Rashbam’s key phrase, “unless there is no alternative available,” is the crux of our discussion. When conventional medications do not provide relief, and marijuana has been found to be highly effective, a number of states have provided marijuana prescription cards that enable patients to purchase it from regulated sources. This ruling is in consonance with the halachic position that analgesics may be administered even at the risk of possibly shortening a patient’s life, as long as the purpose is solely for relief from acute pain.
Given that habit-forming narcotics are routinely prescribed for the relief of pain, and that such relief is mandated by the halachah, and given that ingesting marijuana can also relieve serious pain, it would seem that medical marijuana can be prescribed according to Jewish law.
The Jewish legal-ethical system weighs conflicting values. Shabbat is a value and the preservation of life is also a Jewish value. When they come into conflict, the halachah requires us to violate Shabbat so that a person can live to observe future Shabbatot. A similar calculus can be accorded the values of pain relief and potentially harmful medical marijuana. Concerning the treatment of pain on Shabbat, Rabbi Shlomo Zalman Auerbach ruled that pain can increase the threat to a person’s life. Therefore, anything that will ease the suffering of a seriously ill person and refresh him is part of the commandment of saving a life. This is so even if the relief is for a limited period (e.g., with narcotics) — one must still treat this pain on Shabbat.
If this is so on Shabbat, then by inference from a major to a minor precept (kal v’chomer), medical marijuana may be prescribed by physicians in states where it is legal to do so, and be taken by patients to relieve pain. It may also be appropriate to prescribe medical marijuana in all states based on Leviticus 19:16.
The final word is that a physician heals with all types of herbs that God produces.