Pubdate: Mon, 08 Jul 2013
Source: Jerusalem Post (Israel)
Copyright: 2013 The Jerusalem Post
Contact: http://info.jpost.com/C002/Services/Feedback/editors.html
Website: http://www.jpost.com/
Details: http://www.mapinc.org/media/516
Author: Mark Washofsky
Note: The author is a rabbi and a professor of Jewish law and 
practice at the Hebrew Union College-Jewish Institute of Religion in 
Cincinnati, Ohio, and chairs the Committee on Responsa of the Central 
Conference of American Rabbis.

A HALACHIC PERSPECTIVE ON MEDICAL MARIJUANA

If the medical community determines the drug is an effective 
treatment for pain, Jewish law raises no barriers to its use for 
palliative purposes.

Does Jewish law (Halacha) permit the use of medical? Yes. At the very 
least, a strong argument can be made that it does. Whether 
governments should permit the use of marijuana for medical purposes 
is another question. The answer to that question depends upon a 
complex of factors to which Halacha doesn't speak with precision. But 
should any community decide to legalize marijuana as a treatment for 
pain under appropriate medical supervision, that decision would find 
strong support from the sources of Jewish law.

I base this conclusion, first and foremost, on the fundamental Jewish 
teaching that the practice of medicine (refuah) is a mitzva, the 
fulfillment of a religious duty. The Torah does not explicitly 
command us to engage in the practice of medicine (though it assumes 
that we do; see Exodus 21:19). But the rabbis of old derived such a 
duty from several scriptural sources.

Perhaps the most well-known is Leviticus 18:5: "You shall keep My 
statutes and laws, by the pursuit of which a person shall live." To 
this, the rabbis add (Talmud, Yoma 85b and elsewhere): "and not die" 
- -- that is, one is not obligated to fulfill the "statutes and laws" 
of the Torah when doing so would place one's life in danger.

 From here, the rabbis learn the overriding mitzva of pikuach nefesh, 
the preservation of human life, a duty that takes precedence over 
virtually all other mitzvot.

The Mishnah (Yoma 8:5) provides an example: the Yom Kippur fast is 
suspended when "experts," presumably physicians, declare that such is 
a medical necessity.

On the basis of such examples, the great medieval halachic authority 
R. Moshe b. Nachman (Nachmanides, in his Sefer Torat Ha'adam) 
concludes that the practice of medicine is an instance of the mitzva 
of pikuach nefesh, and his conclusion is repeated in the Shulchan 
Aruch (Yoreh De'ah 336:1), the preeminent code of Halacha.

If the practice of medicine is a mitzva, it would follow that any 
drug, surgery, or other procedure deemed by "experts" to be medically 
efficacious is an element of this mitzva and is therefore permitted.

This permit covers measures considered "dangerous" in other contexts.

We find a clear statement of this principle in a decision by Rabbi 
Eliezer Yehudah Waldenberg, published in 1977 in his responsa 
collection Tzitz Eliezer (vol. 13, no. 87).

Waldenberg, a noted Orthodox rabbinical specialist in medical 
Halacha, rules that Jewish law permits the administration of heavy 
doses of morphine as a palliative for severe pain. The relief of 
pain, he notes, is in and of itself a legitimate medical objective, a 
goal that can justify the use of controlled substances in dosages 
that might carry the risk of life-shortening consequences, provided 
that the goal of treatment is not to shorten the patient's life but 
to alleviate his or her suffering.

True, Waldenberg's decision speaks directly to the case of a 
terminally ill patient, where the only medical objective is the 
relief of pain. Importantly, though, he does not limit his permit to 
such cases, and his position is clear: "the undertaking of measures 
by a physician aimed at reducing suffering falls under the category 
of 'medicine.'" If it is permissible under Jewish law for doctors to 
administer morphine -- an addictive drug with potentially deadly side 
effects -- in order to alleviate pain, I can't see why medical 
marijuana, which is arguably much less dangerous to the patient, is 
not similarly permitted.

If, in the opinion of medical experts, marijuana is a useful and 
effective palliative for pain, and especially if it is more effective 
for certain patients than other available remedies, Halacha would 
sanction its use for medical purposes.

The three-fold appearance of the word "if" in that last paragraph 
should signal an important caveat.

An halachic permit for the use of medical marijuana depends upon the 
development of a consensus among the community of medical science 
that marijuana is a useful treatment for pain and that, in some 
cases, it is as good or better than the available alternatives.

That, an act of professional judgment by competent practitioners, is 
not a decision that rabbis can make.

If and when those practitioners do arrive at such a consensus, then 
Halacha would accept marijuana, like morphine and other drugs, as 
"medicine," an acceptable measure undertaken in service to a 
legitimate medical objective.

One final point: a community may have reasons of a non-medical nature 
to forbid the use of certain potentially useful substances for 
medical purposes. This is particularly the case with marijuana, which 
has long been banned along with other "illicit" drugs in many 
jurisdictions. Decisions of this sort lie within the halachicly 
recognized authority of the state (dina d'malkuta), and it is not for 
me as a rabbi to declare whether any state or community ought to 
outlaw marijuana or to legalize it.

What I can say, however, is this: if the medical community determines 
that marijuana is an effective and indicated treatment for pain, 
Jewish law raises no barriers to its use for palliative purposes.

 From an halachic perspective, the burden would rest upon the civil 
authorities to show why the medical use of marijuana should continue 
to be illegal.
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MAP posted-by: Jay Bergstrom