The Death with Dignity Ballot Initiative: Narrative Tensions and Jewish Legalities

THE DEATH WITH DIGNITY BALLOT INITIATIVE: NARRATIVE TENSIONS AND JEWISH LEGALITIES Rabbi Bernard H. Mehlman* & Rabbi Jeremy S. Morrison** INTRODUCTION: STORIES IN CIVIL PROCEDURE AND STORIES IN OUR LIVES AND WORK AS PULPIT RABBIS In 2012, we confronted on both personal and communal levels the relationship between law and stories. On November 6, 2012, Massachusetts voted on the “Death with Dignity” ballot initiative (Question #2).1 According to the text of the proposition, the measure would have allowed for a terminally ill patient to be given lethal drugs. Although the initiative was defeated, the topic generated significant debate both within political and religious spheres. More particularly, there was a division within the Jewish community as to how to resolve the complex ethical and legal issues in relation to the ballot initiative. Orthodox Jewish interpretations of Jewish law suggested an opposition to the initiative. We, and our colleagues at Temple Israel, however, arrived at a different conclusion. As we have learned about civil procedure through this process, the first document in the equity petition is a story. In this paper, we will explore an early story (BT Ketubot 104a) and its pertinence to end-of-life decisionmaking; how this story has been read through the Jewish interpretive approaches known as Halakhic Formalism and Covenantal Ethics; and will comment on parallels that we perceive between Halakhic Formalism, Covenantal Ethics, and Rule and Discretion. Through researching and writing this paper, we discovered a convergence of processes in civil procedure and the place of the narrative in Jewish decisionmaking. Just as narratives play an important * Bernard H. Mehlman was Senior Rabbi of Temple Israel of Boston and is now its Senior Scholar. He is also an adjunct professor of Midrash and Homiletics at Hebrew Union College-Jewish Institute of Religion in New York City. ** Jeremy S. Morrison is a Rabbi at Temple Israel of Boston and a doctoral student in the Near Eastern and Judaic Studies Department of Brandeis University. 1 See Massachusetts “Death with Dignity” Initiative, Question 2 (2012), BALLOTPEDIA, http://ballotpedia.org/Massachusetts_%22Death_with_Dignity%22_Initiative,_Question_2_ (last visited Oct. 27, 2015); 2012 information for Voters: Question 2: Law Proposed by Initiative Petition, MASS. SECRETARY ST., http://www.sec.state.ma.us/ele/ele12 /ballot_questions_12/quest_2.htm (last visited Oct. 27, 2015). 1479 1480 NEVADA LAW JOURNAL [Vol. 15:1479 role in civil procedure, so, too, stories play a considerable role in Jewish decisionmaking. I. COVENANTAL ETHICS AND HALAKHIC FORMALISM Rabbi David Ellenson, a leading Reform Jewish thinker, suggests that issues surrounding medical ethics and the Jewish legal tradition need to be understood in light of two principles: (1) Halakhic Formalism and (2) Covenantal Ethics.2 Halakhic Formalism, as defined by Ellenson, is the classical, traditional, text-based method for deriving resolution for all ethical issues: “This classical mode of doing Jewish ethics seeks to identify precedents from the rich literature of rabbinic Judaism in order to extrapolate principles and norms that would yield authentic Jewish prescriptions on specific issues.”3 Proponents of Halakhic Formalism are united by an approach to reading and interpreting relevant sources. This method of resolving complex ethical questions, however, transcends Jewish denominational categories: Orthodox, Conservative, Reform, and Reconstructionist. Although Halakhic authorities might read the same texts and employ the same methods, their conclusions and decisions may at times be subtly and strongly at odds. Halakhic Formalism frequently leads to lively debate within the Jewish community. Crucially, in Halakhic Formalism, “[i]ndividual autonomy is not prized.”4 Thus, every Jew is not empowered to decide for himself a course of action based upon his own reading of a text or legal tradition. Although there is great concern for the individual, the suffering of the person, and compassion for each human life at the center of a moral dilemma, in this methodology, the ultimate arbiter is a skilled, learned Jewish moral authority. The Covenantal Ethics approach was first articulated by Rabbi Irving Greenberg, a prominent Orthodox leader in the United States.5 Ellenson provides a clear and helpful definition of this methodology: This approach is marked by the dialectical, personal model of relationship between God and humanity found in the Bible. It affirms the belief that “humankind is created so as to be God’s partner in completing creation.” This means that God’s covenant with Israel does not restrict human freedom, but presupposes it.6 Like Halakhic Formalism this methodology transcends all Jewish denominational categories. Fundamentally, it asserts that neither God nor the individu2 See David H. Ellenson, How to Draw Guidance from a Heritage: Jewish Approaches to Mortal Choices, in CONTEMPORARY JEWISH ETHICS AND MORALITY 129 (Elliot N. Dorff & Louis E. Newman eds., 1995). 3 Id. at 130. 4 See id. at 135. 5 See Irving Greenberg, Toward a Covenantal Ethic of Medicine, in JEWISH VALUES IN BIOETHICS 124 (Levi Maier ed., 1986). 6 See Ellenson, supra note 2, at 136. Summer 2015] DEATH WITH DIGNITY INITIATIVE 1481 al possesses a greater authority than the other regarding a moral decision. This assertion of individual autonomy is an irreconcilable difference and a radical departure from Halakhic Formalism. As Ellenson explains: Rabbi Greenberg argues that the dialectical interplay between “power and partnership” that is the mark of the relationship between God and humanity in the Bible provides the proper model for Jewish medical ethics as well. This means, in part, that people are empowered to become more and more like God. They are charged by God with responsibility for their lives and given permission to seek mastery and control over their environment. If someone asks, “What are the limits?” Rabbi Greenberg contends the covenantal response “is that the limit is nonexistent.”7 Finally, Greenberg “desires to assert an ethic of power, an ethic of human beings charged with responsibility and control for their own decisions.”8 This means that great emphasis is now placed upon the individual and deep regard is assigned for individual autonomy. Such autonomy suggests “not only that people frame actions and rules for their own lives in concert with the tradition, it also involves an affirmation of the person’s right to act upon that determination.”9 In sum, the Covenantal Ethical model places partnership at the center point, which gives each human being the responsibility to exert personal autonomy in decisionmaking that controls his/her personal destiny. II. COMPARISONS BETWEEN HALAKHIC FORMALISM, COVENANTAL ETHIC AND COMMON LAW AND EQUITY It is interesting to consider Halakhic Formalism and Covenantal Ethics and parallels to the relationship between (...truncated)