This week’s parshah includes one of the main sources for the prohibition of carrying on Shabbos. I therefore decided to send the following article, the original of which I wrote almost thirty years ago.
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 In virtually all instances, Torah restrictions are superseded when a life-threatening emergency exists.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: Is there a way whereby a person suffering from angina or other heart disease may 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 leave his house with his medication, since the possible medical emergency can be completely avoided by staying home? 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 halachic basis exist to permit overriding a rabbinic prohibition because of hardships?
The same principles can be applied to other medical situations. For example, the diabetic who receives insulin injection 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. Rabbi Engel was asked if a person could place his identification papers under his hat on Shabbos while walking to shul. Rabbi 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 definition.
Torah law is not violated unless the melacha is performed in a manner in which that activity is usually done. An act performed in a peculiar way, such as carrying something in a way that such an item is not normally carried, constitutes a rabbinic violation, but is permitted under Torah law. This deviation from the norm is called a shinui.[2]
Rabbi 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 due to 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, Rabbi Engel concludes that the rabbis permitted the performance of melacha with a shinui under extenuating circumstances, even though rabbinic prohibitions are not usually waived in these situations. Furthermore, he points out two other mitigating factors to permit carrying identification papers: According to most opinions, the prohibition to carry 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 Tzericha Legufah
In several places,[5] the Gemara records a dispute between Rabbi Yehudah and Rabbi Shimon as to whether a melacha she’einah tzericha 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 if it is a rabbinic injunction. 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 when one’s concern is only to avoid damage is a melacha she’einah tzericha legufah. and therefore constitutes only a rabbinic violation according to Rabbi Shimon. Since one has no need for the caught reptile, Rabbi Shimon considers the violation rabbinic.
Both of these cases violate Torah prohibition according to Rabbi Yehudah, who opines that a melacha she’einah tzericha legufah is a Torah-mandated prohibition.
Although the Rambam[6] follows the opinion of Rabbi Yehudah, the majority of halachic authorities follow the opinion of Rabbi Shimon.
Rabbi Engel considers carrying identification papers in one’s hat to be a melacha she’einah tzericha 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 a snake, where the intent is to avoid injury. Although his point is arguable, as evidenced by a later responsum,[7] Rabbi Engel reiterates his position that this situation qualifies as a melacha she’einah tzericha legufah.
Furthermore, there is a basis to consider carrying only a rabbinic prohibition because no Torah-mandated public domain exists today. (It should be noted that notwithstanding Rav Engel’s statement on this subject, this position is strongly disputed by many authorities who contend that there is a reshus harabim today.)
Thus, because of these two mitigating reasons, Rabbi Engel permitted carrying the identification papers in one’s hat, which is an indirect method of carrying, in order to attend synagogue or to perform a different mitzvah.
As we will see shortly, some later authorities quote this responsum as a basis to permit our original question, although certain aspects of our case differ significantly from those of Rabbi Engel’s. Firstly, whereas in Rabbi Engel’s case, the identification papers had no inherent worth to the carrier, the nitroglycerin tablets do have intrinsic value to the patient. This would render them a melacha hatzericha 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, whereas our question includes carrying medication for social or other reasons, Rabbi Engel permitted the carrying of the identification papers only for the performance of a mitzvah. Would he have allowed a greater leniency for someone who is ill and permitted it even for social reasons? 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 a sudden attack. Rabbi Yekutiel Y. Greenwald[8] 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 on Shabbos. Rabbi Greenwald bases his opinion on the Gemara[9] which allows the carrying of an amulet on Shabbos as a medicinal item, and the responsum of Rabbi Shmuel Engel quoted above. Unfortunately, the comparison to the law of kemeiya (amulet) seems strained. The halacha clearly states that the kemeiya 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 kemeiya is considered to be like a garment. There does not seem to be a basis in these considerations to allow carrying an item. However, Rabbi Greenwald allows the diabetic to go outside with a sugar cube sewn into his garment, even for non-mitzvah-related activities, whereas Rabbi Engel permitted the carrying of identification papers only when going outside for mitzvah purposes.
Rabbi Eliezer Yehuda Waldenberg[10] cites the responsum of Rabbi Greenwald, but disputes his conclusions sharply. In addition to the difficulty we have noted, he also disputes two of Rabbi Greenwald’s assumptions.
1. Whereas Rabbi Greenwald says that in these circumstances one could sew a sugar cube or medicine tablet into a garment in order to carry it, Rabbi Waldenberg does not feel that the circumstances justify carrying an item in this fashion.
2. Rabbi Waldenberg writes that the only situation in which Rabbi Engel permitted carrying with a shinui was when the activity would have constituted a melacha she’einah tzericha 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 for medication, where the patient wants the medicine available for his own use.
Rabbi Waldenberg concludes that the leniency proposed by Rabbi Engel does not apply in the situation at hand, and that this patient would not be allowed to carry his medication outside, even when using a shinui. A mediating position is taken by Rabbi Yehoshua Neuwirth.[11] 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, Rabbi Neuwirth recommends other specific guidelines which would reduce the violations. The reader is encouraged to see Rav Neuwirth’s entire ruling, and also see Igros Moshe, Yoreh Deah, Volume 1 #248, who understands the Gemara’s discussion in Kesubos in a way that preempts the basis for Rav Engel’s lenient ruling.
In a responsum on this topic by Rabbi Menashe Klein,[12] he concludes that a patient is allowed to carry nitroglycerin tablets with a shinui for the purpose of going to shul or for another mitzvah. He bases himself on the following two rationales:
1. There is currently no public domain according to Torah definitions.
2. He considers this carrying to be a melacha she’einah tzericha 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[13] 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 the purpose of performing a mitzvah.
One would 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.[14]
Having presented the background and references on this issue, I leave it to an individual who finds himself in these circumstances to discuss the question with his or her individual posek.
Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11).
[1] Shu’t Maharash Engel, 3:43
[2] See Shabbos 92a, 104b
[3] Kesubos 60a
[4] Orach Chayim 328:33
[5] Shabbos 12a, 31b, 73b etc.
[6] Hilchos Shabbos 1:7
[7] Shu’t Maharash Engel, 7:20
[8] Kol Bo on the laws of Aveilus, Volume 2, page 20
[9] Shabbos 60a, 67a
[10] Shu’t Tzitz Eliezer 13:34
[11] Shemiras Shabbos KeHilchasah, Chapter 40 #7
[12] Shu’t Meshaneh Halachos 7:56
[13] Shu’t Levushei Mordechai #133
[14] It is quoted by Shearim HaMetzuyanim BaHalacha 84:13 and by Lev Avraham Volume 1, Chapter 6.
