The Source That Pikuach Nefesh Overrides Shabbat
The Gemara, ibid, quotes numerous opinions as to the source that one violates Shabbat (or other transgressions) in order to save a life. Two sources emerge as the source that pikuach nefesh overrides Shabbat. The first is "v'shamru b'nei yisrael et haShabbat" (Shemot 31:16) from which the Gemara derives that one should violate one Shabbat in order that someone else should be able to observe many Shabbatot. The second source is vachai bahem (Vayikra 18:5), from which the Gemara derives that mitzvot are meant to be a source of life and not the cause of someone's death. The Gemara then states that the second source is more encompassing than the first source. The first source may only apply in a situation where a life will definitely be saved through the violation of Shabbat. The second source applies even in a situation where it is questionable whether a life will be saved. Tosafot, Yoma 85a, s.v. U'Lifake'ach, note that the second verse serves as the source for the opinion of Shmuel (Gemara, ibid) that lo halchu b’pikuach nefesh achar harov, when it comes to life and death matters statistical data is ignored. If there is remote possibility of saving someone’s life, all means are employed to do so, even if this entails violation of a Torah prohibition. Tosafot explain that the verse vachai bahem teaches that a mitzvah can never be a possible factor in the death of an individual.
The Differences Between the Two Sources
R. Naftali Z.Y. Berlin, Ha'Amek She'elah 1:8, and 167:17, introduces a novel difference between the two sources presented above. As mentioned previously, the source of v'shamru b'nei yisrael et haShabbat only applies to a case where a life will definitely be saved. R. Berlin proposes that the second source of vachai bahem is limited to a person who is considered a "live" individual. Thus, the second source does not serve as a source to permit violating Shabbat to save an endangered fetus. One can only violate Shabbat to save a fetus based on the first source. However, since the first source only applies to a situation where a life will definitely be saved, R. Berlin suggests that one cannot violate Shabbat to save the life of a fetus in a situation where the life saving mission will have questionable success.
Approximately fifty years prior to the publication of R. Berlin's Ha'Amek She'elah, Shulchan Aruch HaRav, Kuntrus Acharon 306:1, anticipated the possibility that one can argue that one may not violate Shabbat to save a fetus if the mission has questionable success (a position later to be adopted by R. Berlin). Shulchan Aruch HaRav rejects this possibility by claiming that the verse vachai bahem encompasses all life threatening situations including the saving of a fetus. R. Shlomo Zalman Auerbach (cited in Nishmat Avraham Vol. IV, pg 50) rules that R. Berlin's opinion is only accepted in a situation where it is known that the fetus will not survive and Shabbat is violated in order to delay the death of the fetus. However, if there is any possibility that the fetus will survive, it is treated as a regular case of pikuach nefesh and Shabbat is violated to save the fetus.
The Gemara, Yoma 85a, states that one may even violate Shabbat in a situation where it is known that the life saving mission will only extend the individual's life for a few hours. Me'iri, ad loc., s.v. HaMishna HaChamishit, explains that the reason why this is permitted is because in those few hours the patient has the opportunity to repent for his sins. Mishna Berurah, Biur Halacha 329:4 s.v. Ela, notes that Me'iri is operating within the first source for saving a life on Shabbat. According to the first source – based on the principle that one should violate one Shabbat in order that the patient may observe many more Shabbatot- the life saving mission does not necessarily have to produce the possibility that the patient will be able to observe other Shabbatot. It is sufficient if he is able to perform other mitzvot. Me'iri's opinion is that since one can perform the mitzvah of Teshuva in mere seconds, it is worthwhile to violate Shabbat to temporarily extend the life of the patient. It is implicit from Me'iri's comments that if the patient's state of consciousness does not allow him to perform any mitzvah, one may not violate Shabbat to extend his life. Mishna Berurah posits that most Rishonim accept vachai bahem as the source that one violates Shabbat to save a life. Accordingly, one would violate Shabbat to extend the life of an individual even in a situation where he will only live temporarily and his state of consciousness does not allow him to perform any mitzvah whatsoever.
Hutrah or Dechuyah
The Gemara, Yoma 83a, quotes a Beraita that if one is in a life threatening situation and his condition requires him to eat one of two types of non-kosher food, he should choose to eat the food item whose violation is less stringent. [This principle is known as hakal hakal techilah (the lesser one comes first).] For example, if he must choose between neveilah (meat that was not slaughtered properly) and tevel (fruits that were not yet tithed), he should choose the tevel. This is because one who wantonly eats neveilah is punished through lashes and one who eats tevel is not.
Rabbeinu Asher, Yoma 8:4, discusses a case of someone in a life threatening situation whose condition requires him to eat meat on Shabbat. The question arises: is it preferable for him to eat neveilah meat, or is it preferable to slaughter an animal on Shabbat so that he may eat a kosher meat? At first glance, the principle of hakal hakal techilah should dictate that the violation of neveilah, which is only punishable by lashes, should be preferable to the violation of Shabbat whose transgression is punishable by death. Nevertheless, Rabbeinu Asher presents a few reasons why one should slaughter the animal and forgo the neveilah. One of those reasons (Rabbeinu Asher attributes this reasoning to Maharam MiRutenberg) is because pikuach nefesh on Shabbat is hutrah (permitted). This means that Shabbat is suspended in the face of a life threatening situation. However, the prohibition of eating neveilah is dechuyah (pushed aside) for pikuach nefesh. This means that the prohibition of eating neveilah remains and the life threatening situation overrides the prohibition. Since Shabbat is suspended in the face of pikuach nefesh and neveilah is not (but is overridden), it is preferable to slaughter the animal on Shabbat. [Rabbeinu Asher notes that this is only applicable if there will be no delay in preparing the kosher meat.]
Rashba, Teshuvot HaRashba 1:689, agrees that the question of whether to give the patient neveilah or whether to slaughter the animal on Shabbat is contingent on whether pikuach nefesh on Shabbat is hutrah or dechuyah. However, Rashba contends that pikuach nefesh on Shabbat is dechuyah and therefore advocates feeding neveilah to the patient.
Some Poskim see the question of whether pikuach nefesh on Shabbat is hutrah or dechuyah as central to many discussions regarding pikuach nefesh on Shabbat (see for example R. Ovadia Yosef, Yechaveh Da'at 4:30). However, R. Moshe Feinstein, Igrot Moshe, Choshen Mishpat 2:79, claims that the only practical application of the question of hutrah or dechuyah is the case of whether the patient should eat the neveilah or whether it is better to slaughter an animal on Shabbat. Other issues that may relate to this question will be discussed in the next issue.