CCAR RESPONSA
5766.3
Hunger Strike: On the Force Feeding of Prisoners
She’elah
What would be the Jewish view of force feeding (strapping somebody to a chair and putting a tube down their nose in as painless a fashion as possible) a mentally stable prisoner who desires to starve himself to death to make a political statement? (Rabbi Joel Schwartzman, Morrison, CO)
Teshuvah
This question arises with respect to the treatment of detainees imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. These detainees were captured during military operations beginning in 2001 against the Al Qaeda terrorist organization and the Taliban government of Afghanistan. During the summer and fall of 2005, they staged a hunger strike to protest their detention and treatment. In February, 2006, various news organizations reported that prison officials were force feeding the detainees, in a manner similar to that described by our sho’el, as a means of breaking the strike. Military officials justified these harsh measures as necessary to save the lives of the hunger strikers. The prisoners themselves have charged that both the restraint and the insertion of the feeding tubes were accomplished through excessive violence.[1]
We compose this responsum in the summer of 2006, a time when the “war on terror” and the invasions of Afghanistan and Iraq are subjects of intense political controversy. We seek, however, to set the politics aside and to view this she’elah, as we do all others, as a Jewish one, involving the interpretation and application of values central to our religious tradition. With respect to this question, those values point us in different and conflicting directions. This is not an easy question for us; the “Jewish view,” as our sho’el puts it, is far from obvious. We will therefore set forth as thoroughly as we can the arguments both for and against force feeding, in the hope that our answer will encompass the valid points raised by both sides and do justice to the genuine complexity of the case.
Arguments In Favor of Force Feeding. Jewish tradition teaches that pikuach nefesh, the preservation of human life, is a mitzvah, a religious duty, and that it transcends and supersedes virtually all others.[2] The Rabbis derive this from Leviticus 18:5: “You shall keep My statutes and My laws, which a person shall perform and live by them.” They interpret the words “and live by them” to mean: “and not die by them.”[3] Thus, “one is to perform the mitzvot in such a way that one’s life is not subjected to danger.”[4] The supreme value that Judaism places upon the safeguarding of life expresses itself in three related rules. First, we are forbidden to cause physical harm (chavalah) to ourselves[5] or to place ourselves in any unnecessary danger.[6] Second, the practice of medicine is itself a form of pikuach nefesh and therefore supersedes other conflicting religious obligations,[7] even such serious ones as the prohibitions surrounding Shabbat and Yom Kippur.[8] And third, we are forbidden “to stand idly by the blood” of another (Leviticus 19:16): that is, we bear a positive obligation to rescue the lives of those who are in danger.[9]
These teachings raise a sharp critique of the tactics of the hunger strikers. If there is a single, uncontested feature of the “Jewish view” of this question, it is that human life is sacred and that it must be treated with the utmost reverence. Yes, there are times when our tradition would permit and even demand that one die rather than violate a mitzvah, but the circumstances in which this demand applies are strictly limited.[10] In other words, one is not entitled to choose martyrdom in order “to make a political statement.”[11] All of this would lead to the conclusion that the prisoners are forbidden to endanger their lives by engaging in a hunger strike and that the prison officials, who are ultimately responsible for the health and safety of those in their custody, are justified in taking strong action if necessary to bring the strike to an end. That such action may involve force and violence is regrettable, but the blame for this unhappy result lies with the prisoners themselves. By refusing nourishment, it is they who are endangering their lives. The prison officials, by contrast, are simply following the dictates of Jewish law, which enjoins us to fulfill the obligation of pikuach nefesh quickly and diligently: “whosoever delays in the performance of this mitzvah is guilty of bloodshed.”[12]
Arguments Against Force Feeding. On the other hand, a case can be made that Jewish tradition does not warrant the force feeding of prisoners who have undertaken a hunger strike. That case rests upon the following three points.
1. This is a political, not a medical question. Answers are frequently dictated by the way in which we frame the questions. If we define this question primarily as a medical one, we will tend to ask it as follows: “under Jewish law, is a patient entitled to refuse life-sustaining medical treatment?” The answer, clearly, is “no”: under the rule of pikuach nefesh, a patient is morally obligated to accept a remedy that consensus medical opinion regards as refu’ah bedukah or refu’ah vada’it, one that offers a reasonably certain prospect of a successful therapeutic outcome.[13] If hunger is a disease, then food is a “sure remedy” for it. Yet we would note that the prisoners themselves do not see this as a medical question. They have chosen the hunger strike as a tactic to protest against the conditions of their captivity. Their goal is to bring pressure upon their jailors, not necessarily to kill themselves or to cause themselves irreparable physical harm. Indeed, the prison officials at Guantanamo concur in this assessment.[14] If so, then the forceful insertion of nasogastric tubes is arguably a political rather than a medical intervention, designed not to save lives but “to break the hunger strikes because they were having a disruptive effect and causing stress for the medical staff.” If the strike and the attendant force feeding both serve political goals, then the rules and principles that apply to a medical context may not be appropriate here.[15] In this connection, we would note that the prohibition against inflicting physical damage upon oneself, to which we refer above, is limited to cases in which the injury is done “in a contemptible manner” or for no good purpose.[16] Obviously, those who undertake a hunger strike in protest against prison conditions would say that the harm they inflict upon themselves does not fall into that category. We would add that a number of Orthodox rabbis participated in hunger strikes during the 1990s in protest of the Oslo peace accords between Israel and the Palestine Liberation Organization. Although the strikes were controversial, the fact that they took place suggests that they were able to distinguish, on Jewish grounds, between an action designed to endanger one’s life and health (forbidden) and an action intended to “make a political statement” (permitted).[17]
2. Force feeding is widely regarded as torture. This policy is set forth by the World Medical Association (WMA) in its “Declaration of Tokyo” concerning “torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment”:[18]
Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.
The American Medical Association, a member organization of the WMA, has reaffirmed its endorsement of this clause of the Tokyo policy.[19] In March, 2006, the British medical journal The Lancet published a letter of protest, signed by over 250 distinguished physicians from the United States and Europe, against the force feeding at Guantanamo. The letter, which calls upon the U.S. government “to ensure that detainees are assessed by independent physicians and that techniques such as forcefeeding and restraint chairs are abandoned forthwith in accordance with internationally agreed standards,”[20] has garnered the support of well-known human rights organizations.[21] We take these statements with the utmost seriousness. As Jews, we are heirs to a tradition that commands us to pursue justice (Deuteronomy 16:20) and to a Torah “whose ways are pleasantness” and “whose paths are peace” (Proverbs 3:17).[22] How then can we support a tactic that much of the world’s enlightened medical-ethical opinion has castigated as a form of torture? To do so is arguably to perpetrate a chilul hashem, a profanation of God’s name, an offense we commit whenever we behave in a manner inconsistent with the high standards that the world expects of a people that lives in covenant with God.[23]
Before we reach that conclusion, however, let us consider that the Tokyo Declaration’s opposition to force feeding is based upon two principles that enjoy a dominant – some would say a “canonical”[24] – standing in contemporary secular bioethics. The first of these is patient autonomy, which holds that a medical procedure is ethical to the extent that a competent patient makes his or her own decision regarding that procedure in an autonomous manner, free of coercion. The second is informed consent: the patient agrees to a suggested treatment only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision.[25] Applied to our case, these principles suggest that when a prisoner makes a rational, informed decision that he does not wish to be fed, we are not permitted to feed him against his expressed will, even though the decision may result in his death.[26] Yet as we have seen, the classical Judaic approach to questions of life and death is founded not upon the affirmation of individual autonomy but upon the commitment to the sanctity of life and the duty to heal. In the traditional Jewish view, the patient has no right to make a decision, however “informed,” for suicide, and the physician, who like every person bears a positive duty to save life, has no right to sit passively and watch the patient die.[27] The Jewish physician can therefore make a powerful argument that, when confronted by a situation such as the one described in our she’elah, his or her ethical responsibility is to save the patient’s life rather than to respect the patient’s autonomy.[28]
We do not believe that the contemporary Western model of bioethics is any more exalted, noble, or humane than the Judaic approach. In saying this, we do not mean to disparage modernity or its contributions to moral thought. We mean rather that as heirs to both the classical Jewish tradition and the culture of modernity, we would not wish to live in a society that rejects either source of ethical value. Thus, while we acknowledge that the modern affirmation of the dignity of the individual human being serves in our world as a bulwark against tyranny and oppression, particularly of the sort rooted in religious extremism, we reject the notion that “modern, progressive, and Western” culture enjoys a monopoly upon moral truth. On the contrary: we believe that contemporary secular civilization can learn a great deal from the Jewish tradition, especially in the realm of bioethics, where the Judaic approach can yield answers that might well be morally superior to those produced by secular thought.[29] As citizens of Western society and participants in its culture, we cannot ignore the fact that the predominant medical-ethical opinion in our society and culture defines the force feeding of patients as an immoral act. But as Jews, we cannot apply the label “torture” to a procedure designed to save the life of prisoners in our custody, even if they seem bound and determined upon suicide.
3. Force feeding transgresses against Jewish ethical principles. Yet even if we view this as a medical rather than a political question, the fact that a patient is obligated to accept life-sustaining treatment does not necessarily mean that we may force it upon her against her will. Here it is essential to consider just what force feeding entails. As one Guantanamo detainee has described the procedure:[30]
The head is immobilized by a strap so it can’t be moved, their hands are cuffed to the chair and the legs are shackled. They ask, “Are you going to eat or not?” and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.
Another charges that “a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.”[31] The nasogastric tubes, inserted forcibly against the prisoners’ wishes, have been said to cause “unbearable pain.”[32] We have no way, of course, to verify these statements, and we also know that the force feeding has been defended by officials of the U.S. Defense Department as “compassionate” and “humane.”[33] Still, it is possible that these descriptions are accurate, and it is quite plausible that harsh, violent measures would be required to compel nutrients upon a prisoner who is determined to refuse them. And it is questionable whether Jewish tradition obligates us to resort to such violence even when the treatment is necessary to save a patient’s life. R. Moshe Feinstein, for example, has ruled that medical treatment, though compulsory under Jewish law, “must be administered in such a way that it does not frighten the patient. For fear, even though it be irrational, may itself cause him harm or even kill him… It is therefore preferable that the physicians not administer treatment against the patient’s will… and the physicians must consider this matter very carefully.”[34] We would phrase this point somewhat differently: medical treatment can be considered obligatory only when it is medicine, that is, when it partakes of the mitzvah of healing (refu’ah). To the extent that a medical procedure causes significant harm to a patient, it may be said to lose its therapeutic value and therefore its standing as “medicine” that the patient would be obligated to accept.[35] We are, of course, in no position to draw a proper balance in this case between the “harm” caused to the detainee by the violent force feeding and its obvious benefit of saving his life, provided that he was intent upon suicide in the first place. Nonetheless, the concern over the negative effects of these measures must give us pause before we assert that we are morally bound to administer them by force.
In addition, even if force feeding could be said to have no objective and observable “negative effects,” we would still have reason to oppose it. Violence against a patient, even when exercised by medical professionals convinced they are acting in the patient’s best interests, is still violence.[36] It is the sort of treatment that offends against our most basic conceptions of kevod haberiyot, the essential dignity that all of us, including prisoners, possess as human beings created in the image of God.[37] Force is sometimes necessary in our dealings with others, but it should never be resorted to lightly. And when we do choose that path, we had best make sure that our actions are truly the only available means by which to achieve a vital purpose.
Toward a Conclusion. What is the “Jewish view” of force feeding? As we have indicated, we think that there can be no simple, one-sided answer to this question. We have encountered powerful Judaic arguments both for and against the practice, arguments based upon Jewish legal and moral values that demand our respect and assent. Accordingly, our response acknowledges the wisdom of all these arguments in an effort to arrive at what we think is the most persuasive interpretation of the teachings of our tradition.
We begin from the obvious starting point: pikuach nefesh, the duty to preserve human life and to rescue those in danger, is the overriding Jewish moral concern. In any sort of “Jewish view,” the obligation to save the life of a patient must take precedence over the desire to respect the patient’s autonomously chosen decision to die. This is especially true given that a decision to embark upon a hunger strike must raise concerns as to the patient’s ability to arrive at a truly rational choice based upon “informed consent.”[38]
At the same time, force feeding by its nature is a violent, even brutal tactic that “shocks the conscience”[39] and robs the prisoner of his fundamental human dignity. Although force feeding can under extreme circumstances be justified on medical grounds, we think that prison authorities can abuse it all too easily for non-medical purposes, as a tool for punishment or discipline. When they do so, we fully agree with those who condemn the measure as a form of torture. It is to be avoided in all cases except when it is obviously necessary to save the life of the hunger striker.
How do we draw a proper balance between these conflicting values and concerns? We find helpful guidance, surprisingly perhaps, in the regulations regarding hunger strikes adopted by the U.S. Federal Bureau of Prisons.[40] These provide that a prisoner who embarks on a hunger strike is at first permitted to maintain that action. He is placed under careful medical supervision, and food is brought to his cell three times a day. Prison officials will make efforts to persuade him to abandon the strike, but they will not force him to do so until “a physician determines that the inmate’s life or health will be threatened if treatment is not initiated immediately.” The prisoner may be fed involuntarily only “if the physician is convinced to a reasonable medical certainty that there is an immediate threat to the inmate’s life, or permanent damage to the inmate’s health.”[41] The words “immediate” and “permanent” are crucial here. They declare that the only acceptable grounds for force feeding are medical and that those grounds must be sufficiently urgent to remove virtually all doubt that the feeding is medically necessary. These regulations, if adhered to in the case of the Guantanamo detainees, would prevent the misuse of force feeding for other purposes, such as for maintaining prison discipline or for relieving “stress” upon the prison staff.[42]
One final note. The Bureau’s rules also provide that when nasogastric tubes are inserted by force, “these events should be videotaped.”[43] We cannot overemphasize the importance of this point for our teshuvah. The force feeding of prisoners must be carefully supervised, for only in that way can we hope to prevent excessive violence and other mistreatment. This supervision therefore should be performed by outside observers who do not represent the prison system or the military. Although this might interfere with the secrecy which currently surrounds the activities at the Guantanamo prison camp, we think it is the best way for the U.S. military to demonstrate its commitment to “humane” and “compassionate” treatment of the detainees in the face of severe international criticism. In so doing, they would fulfill the spirit of the Mishnah’s dictum that it is essential to display our innocence in the sight of people as well as in the sight of God.[44] It would also meet the high standard set by the United States Declaration of Independence, which proclaims the American people’s “decent respect to the opinions of mankind.”
NOTES
1. This description is culled from the following news sources: “Force-Feeding at Guantanamo Is Now Acknowledged”, New York Times, February 22, 2006 (http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html?ex=1298264400&en=7ea399aeaba6605e&ei=5090&partner=rssuserland&emc=rss); “Doctors Attack US Over Guantanamo,” British Broadcasting Corporation, March 10, 2006 (http://news.bbc.co.uk/1/hi/world/americas/4790742.stm); “Guantanamo Force Feeding Tactics Are Called Torture,” Washington Post, March 1, 2006 (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801344.html) .
2. The classical formulation of this rule is the phrase ya`avor ve’al yehareg, “one should transgress the commandment rather than be killed,” in the event that a persecutor demands that a Jew either violate the mitzvah or forfeit his life. See B. Sanhedrin 74a and Avodah Zarah 27b; Yad, Yesodei Hatorah 5:1ff; Shulchan Arukh Yore De`ah 157:1. On the exceptions to this rule see note 10, below.
3. B. Yoma 85b, Sanhedrin 74a, and Avodah Zarah 27b; Sifra to Lev. 18:5.
4. Rashi, B. Yoma 85b, s.v. deshmu’el leit leh pirkha.
5. B. Bava Kama 90b; Yad, Chovel Umazik 5:1. But see below in the text.
6. Derived from Deuteronomy 4:9. Yad, Rotzeach 11:4; Shulchan Arukh Choshen Mishpat 427:8-10. On this basis, a number of contemporary Orthodox authorities have begun to prohibit smoking. See the discussion in Teshuvot for the Nineties (TFN), no. 5753.23, pp. 331-335 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=23&year=5753) .
7. M. Yoma 8:5; Nachmanides, Torat Ha’adam, ed. Chavel (Jerusalem: Mosad Harav Kook, 1964), 41-42; Tur and Shulchan Arukh Yore De`ah 336:1.
8. Thus, a person who rejects the instruction of a competent physician (rofe baki) on the grounds that the instruction involves prohibited labor on Shabbat is “a pious fool (chasid shoteh). This is not an act of piety but of suicide. One is required to do what the physicians prescribe”; R. David ibn Zimra (Egypt, 16th-17th centuries), Resp. Radbaz 1:1139.
9. B. Sanhredrin 73a: “From where do we learn that one who sees his fellow drowning in the river, attacked by a wild beast, or threatened by robbers is obliged to save him? From the verse ‘do not stand idly by the blood of your fellow.’” Rambam (Yad, Rotzeach 1:14) codifies the rule as follows: “One who is able to save his fellow (from danger) and does not do so has transgressed against the mitzvah of Leviticus 19:16.” See also Shulchan Arukh Choshen Mishpat 426.
10. See the sources enumerated in note 2, above. Jewish tradition requires martyrdom in three specific cases; to put this differently, there are three mitzvot which one must never violate, even at the cost of one’s life. These are idolatry, the sexual transgressions enumerated in Leviticus 18, and murder. These are formulated in the sources as “exceptions” to the rule of pikuach nefesh established by the interpretation of Leviticus 18:5. Each exception is itself derived by way of midrash (textual interpretation) or sevara (logical inference); see B. Sanhedrin 74a.
11. See Yad, Yesodei Hatorah 5:4: “If the case is one in which the Torah says ‘transgress the commandment and save your life,’ the one who chooses to die rather than transgress is culpable for his own death”; i.e., he has committed suicide. But see below in the text.
12. Shulchan Arukh Yore De`ah 336:1.
13. See TFN, no. 5754.14, pp. 337ff (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754), at notes 38-40.
14. According to Maj. Gen. Jay W. Hood, commander of the prison camp at the Guantanamo naval base, the hunger strikers are not suicidal but are simply protesting their confinement. “In none of these [cases] have I ever gotten the impression that these guys want to die.” See Susan Okie, M.D., “Glimpses of Guantanamo: Medical Ethics and the War on Terror,” New England Journal of Medicine 353:24 (Dec. 15, 2005), 2529-2534.
15. “Force-Feeding at Guantanamo Is Now Acknowledged”, note 1, above. The quotation is attributed to two “Defense Department officials.” See also “Guantanamo Medics Accused of Abusive Force-feeding,” Boston Globe, Oct. 15, 2005 (http://www.boston.com/news/nation/articles/2005/10/15/guantanamo_medics_accused_of_abusive_force_feeding), quoting Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania: “Medicine is supposed to remain neutral. When you start to become complicit in efforts to break resistance using medical expertise that should be there simply to protect the health of people, you’re headed down the wrong track.”
16. Yad, Chovel Umazik 5:1: the phrase is derekh nitzayon (or, in some readings, bizayon). See TFN, no. 5752.7, “Cosmetic Surgery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752).
17. See R. Menachem Feliks, “Ve’af `al pi khen: shevitat ra`av,” Techumin 16 (1996/5756), 291-295. Feliks contends that the halakhah permits an individual to undertake a voluntary fast (ta`anit yachid) in order to protest against policies of the Israeli government that, in the individual’s opinion, endanger the Jewish people and state. He would not apply his argument, obviously, to the Muslim detainees at Guantanamo. From a liberal perspective, though, the notion that one may declare a fast in service to a “higher purpose” is a principle that should not be restricted to Jews.
18. The World Medical Association Declaration of Tokyo (1975, 2005, and 2006), paragraph 6 (http://www.wma.net/e/policy/c18.htm ).
19. “AMA Reiterates Opposition to Feeding Individuals Against Their Will,” statement by Duane Cady, M.D. , chair, American Medical Association (http://www.ama-assn.org/ama/pub/category/16086.html ).
20. David J. Nichol et al., “Forcefeeding and restraint of Guantanamo Bay hunger strikers,” The Lancet 367:9513 (March 11, 2006; http://www.thelancet.com/journals/lancet/article/PIIS0140673606683268/fulltext).
21. Among these are Physicians for Human Rights (http://www.phrusa.org/research/torture/news_2006-03-10.html) and Amnesty International (http://www.amnesty.org.uk/news_details.asp?NewsID=16898 ).
22. Halakhic authorities sometimes cite this verse as a guide for the interpretation of the Torah’s laws according to its ultimate intent. Thus, Maimonides rules (Yad, Chanukah 4:14) that, in the event one has only enough oil either for household illumination or for the Chanukah lamp, one should use it for household illumination, “for the sake of domestic peace” (mishum shalom beito). He adds: “Great is peace, for the entire Torah was given to bring peace to the world, as it is said, “whose ways are pleasantness, etc.”
23. For sources and discussion on chilul hashem, see our responsum no. 5764.1, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5764 , at notes 11-15.
24. The term is used by R. Hamel, “The Reign of Autonomy: Is The End In Sight?” Second Opinion, January, 1995, 75-79.
25. These definitions reflect the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). The classic formulation is perhaps that of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).
26. See the statement from the WMA’s Tokyo Declaration at note 18, above. It is, however, not certain that the Guantanamo detainees are able to make an “informed” decision under the conditions of their incarceration. See Okie, note 14, above, at 2530-2531.
27. In this, Jewish tradition would dissent from the decision of the British authorities who allowed hunger striking members of the Irish Republican Army to starve themselves to death while in prison in 1981. See Okie, note 14, above, 2530.
28. For an example of such a powerful argument, see Shimeon Glick, M.D., “Unlimited Human Autonomy: A Cultural Bias?” New England Journal of Medicine 356 (March 27, 1997), 954-956 (http://content.nejm.org/cgi/content/full/336/13/954?ijkey=85e85facc59a79e4f0fc74e07b6ad449df1b0ce5&keytype2=tf_ipsecsha ).
29. For an example, see our responsum no. 5763.2, “Live Liver Transplantation” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5763 ), section 4 and following.
30. “Force-Feeding at Guantanamo Is Now Acknowledged,” note 1, above.
31. Ibid.
32. “Guantanamo Force Feeding Tactics Are Called Torture,” note 1, above.
33. “Force-Feeding at Guantanamo is Now Acknowledged” and “Doctors Attack US Over Guantanamo,” note 1, above.
34. Resp. Igerot Moshe, Choshen Mishpat 2:73, part 5.
35. For a detailed analysis of this point, see TFN, no. 5754.14. “On the Treatment of the Terminally Ill,” 337-363, at section III (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 ).
36. Some of these objections, it might be argued, can be removed simply by sedating the prisoners prior to force feeding. While it is true that, as a matter of degree, sedation would reduce the amount of violence employed in force feeding, it would still in its essence, as a forcible transgression of the patient’s will, constitute an act of violence against him. As such, the Judaic principles cited in this paragraph would continue to apply. Needless to say, moreover, the procedure would still be defined as “torture” under the Tokyo Declaration (note 18, above).
37. Although it may sound like a lofty ethical principle with little substantive content, kevod haberiyot functions as a real consideration in halakhah. In its general formulation, the rule is that considerations of “human dignity” may be great enough to supersede a conflicting Rabbinic ordinance (B. Berakhot 19b; Yad, Shabbat 26:23 and Kilayim 10:29). In this case, of course, the conflicting ordinance is pikuach nefesh, which originates in the Torah (de’oraita), and one might argue that the saving of life surely overrides considerations of kevod haberiyot. But one leading posek suggests that “dignity” (kavod) may in some cases override pikuach nefesh. See R. Shelomo Kluger (19th-cent. Galicia), Chokhmat Shelomo to Shulchan Arukh Choshen Mishpat 426, no. 1.
38. See note 26, above, as well as Glick (note 28, above), 955: “One might perhaps see forcing people to undergo lifesaving therapy as an action that does respect their autonomy and for which they may ultimately be grateful; their judgment may be temporarily compromised by irrationality, although they remain within the bounds of legally defined competence.”
39. This phrase is particularly appropriate here, in that it is the definition of “torture” adopted by the U. S. Supreme Court in a case involving the seizure of evidence from a suspect by means of induced vomiting. The Court held that “(t)he proceedings by which the conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience… They are methods too close to the rack and the screw to permit of constitutional differentiation.” Rochin v. California, 345 U.S. 165 (1952), at 172.
40. U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, no. P5562.05, July 29, 2005, available at http://bop.gov//policy/progstat/5562_005.pdf .
41. Program Statement, p. 6.
42. See above at note 15. The goal of prison population control can be met in other ways. For example, the Statement provides that when a prisoner undertakes a hunger strike, he or she may be isolated in “a medically appropriate locked room” (p. 3). The formal justification for this rule is medical: isolation allows for close monitoring of the prisoner’s physical condition. But it also addresses the concerns surrounding discipline (i.e.,preventing the hunger strike from causing disturbances among the inmate population), thereby avoiding the resort to force feeding as a means of breaking the strike.
43. Program Statement, p. 7.
44. M. Shekalim 3:2, based upon Numbers 32:22.
If needed, please consult Abbreviations used in CCAR Responsa.