New York – On April 7th, 2019, Mayor Bill de Blasio of New York declared a public health emergency on account of the measles epidemic. He ordered a program of mandatory vaccination in parts of Brooklyn. The areas he ordered were the ones with a heavy orthodox Jewish population, because that is where the centers of the epidemic are located.

In other words, it is now the law of the land, in Brooklyn, that people must be vaccinated.

THE NECESSITY OF THE DECREE

It is a rare type of order, but one that is very necessary. How so?

There are, unfortunately, people – who simply are not listening to what doctors, Rabbis, Gedolei HaPoskim, and experts from the Center for Disease Control are telling them to do – to vaccinate against measles. Their refusal to do so is placing both the public as well as three different groups in grave risk. These groups are: 1] People on Chemo-therapy 2] People with Compromised immune systems and 3] the elderly

If any of these people contract measles – it is highly likely that they will die of the complications of these illnesses.

THE QUESTION

If one is aware that a family is illegally avoiding the law that demands vaccination – is one permitted to inform on them to the authorities? If one is convinced that such an action will save lives – is Mesirah permitted under such circumstances?

In order to address this question, the halachic views of Mesirah in contemporary times must be examined as well as the specific repercussions in this particular situation.

PARAMETERS

According to many authorities, the halachic prohibition of mesirah is defined as informing upon another Jew where he or she would be subjected to punishment in a legal system not based upon Torah values. The laws of mesirah are discussed in the Shulchan Aruch (Choshen Mishpat 388).

SEVERE PROHIBITION

The Talmud and halachic authorities inform us that, unless there are special circumstances warranting it, it is a severe prohibition to inform upon a fellow Jew to the secular government.

This is true even if the person being informed upon is in violation of secular law or Jewish law, or is the source of great aggravation. It is true even if the secular government were to follow what would amount to the equivalent Jewish law on the particular matter.

Aside from these special circumstances, the prohibition of mesirah is most severe; the Rambam tells us (Mishneh Torah, Laws of Teshuvah 3:12) that an informer has entirely lost his or her share in the World to Come. The words of this Rambam are not an exaggeration designed to engender fear and prevent mesirah from happening. The manner in which all halachic authorities cite and quote this Rambam is clear–the Rambam meant it literally: the informer has forfeited his or her share, unless the criteria of the exceptional circumstances were met.

The Gemara in Rosh Hashanah describes the horrifying Gehinnom-filled fate of someone who engages in mesirah. The Shach (Yoreh Deah 388:53) cites a number of authorities (Tosfos and Hagaos Ashri) that someone who actually converted to another religion is better off than someone who engaged in forbidden mesirah.

EXCEPTIONAL CIRCUMSTANCES

What might be an example of the special circumstances? The Maharam Schick (1807—1879), in a responsum in the Choshen Mishpat section of his writings (#50), deals with a case where there was substantial evidence that a woman had killed her husband. He concludes that if, according to Jewish law, the evidence would have been sufficient to punish her, then she must be turned in to the authorities, on account of the verse, “u’viarta ha’ra mi’kirbecha–and you must eliminate the evil within your midst.”

Is the prohibition of mesirah still in full effect in our contemporary society? Some have made the argument that anti-Semitism does not play a role in the dispensing of justice in this country. Others claim that this may be true in some parts of the country, but in light of the comparatively severe sentencing given to a number of ostensibly observant Jews, this is not altogether true.

IS AMERICA DIFFERENT?

So how do the poskim view the prohibition of mesirah in a just, Western democracy?

THE PERMISSIVE VIEW

HaRav Yechiel Michel Epstein, one of the foremost poskim of the 20th century and the author of the Aruch HaShulchan, differentiated between older corrupt governments and the honest governments of Europe (see C.M. 388:7), and especially the Czar’s government, in terms of the prohibition of mesirah.

Some poskim have said, however, that this paragraph was obviously inserted on account of the heavily anti-Semitic Czarist censors, and that it did not reflect the Aruch HaShulchan’s true thinking on the matter. On the other hand, it is difficult to understand why the Aruch HaShulchan would write so extensively merely to appease the censors.

In a similar vein, Rabbi Eliezer Yehudah Waldenberg in his Tzitz Eliezer (Vol. XIX #52) cites the Aruch HaShulchan and concludes leniently. Rav Waldenberg was writing in Eretz Yisrael and did not have the same issues of censorship that it is claimed the Aruch HaShulchan may have had.

By the same token, Rav Yitzchok Shmelkes in his Beis Yitzchok (Y.D. 49:12) concludes that an informer, a moser, does not have the halachic status of a rodef because imprisonment does not lead to danger to life. Indeed, he concludes that informing does not even negate one’s eligibility to give testimony in a Jewish court of law.

Rav Shmuel Wosner, zt’l, in Shevet HaLevi Vol. II Y.D. 58 cites the Gemara in Bava Metzia (83b) to explain that when the issues are strictly of a financial nature, the concept of dina d’malchusa dina–the law of the land is the law–applies, and under rabbinic guidance there may be room to be lenient.

This may be a reason to be lenient and allow mesirah – especially in light of the fact that a grave Chillul Hashem may result if the disease is spread further and that the only two repercussions in this country for not vaccinating are either 1] they may be forcibly vaccinated or 2] They may be subjected to a $1000 fine.

THE STRINGENT VIEW

Rav Moshe Feinstein discusses the issue in two places. In Igros Moshe (Orach Chaim, Vol. V, 9:11) he discusses whether one may turn a thief in to the authorities. He concludes that when the punishment he will receive is so foreign to and in excess of Torah norms, it is not permitted to violate mesirah.

Rav Moshe also deals with (C.M. I #8) the permissibility of a religious Jew serving in an accountant position to ensure that companies are in compliance with government regulation. There he concludes that it is permitted based upon a combination of two reasons: (1) that someone else would be doing it anyway; and (2) his job is determining that the rules are being followed, which is technically not mesirah.

Rav Ezra Batzri in Dinei Mamanos (4:2, fn. 5, p. 86) holds that mesirah is not justifiable in contemporary society and makes the point that it is by no means clear that we are a just and fair society.

Being that the repercussions are so fraught with danger, it is better not to make that judgment call oneself and only do so after significant consultation with a qualified posek.

When MIGHT IT BE PERMITTED?

The Shulchan Aruch (as emended by the Shach in 388:12 and 10) rules that even if a person is causing significant distress to an individual, it is nonetheless completely forbidden to perform a mesirah. If, however, the entire community is suffering, then after the person is warned (see Vilna Gaon and Sanhedrin 72b), they may report the offender.

It seems clear that in this case the entire community is suffering from these individuals as well as the fact that their behavior in not vaccinating is the source of major Chillul Hashem.

CONSIDERED LIKE A RODAIF

There is another exception that would allow Mesirah and that is when the actions of the individual either are or resemble the case of a Rodaif – a pursuer of others. Three major Poskim, for example, permit informing upon a person who can no longer drive safely. These Poskim are Rav Moshe Shternbach shlita (Teshuvos v’hanhagos Vol. I #850), Dayan Weiss (Minchas Yitzchok Vol. VIII #148), and Rav Ovadiah Yoseph (Yechaveh Daas Vol. IV #60).

MEASLES CAN KILL THOSE ON CHEMOTHERAPY AND IMMUNO-COMPROMISED INDIVIDUALS

Although very often measles is a benign disease – this is not always the case. It is deadly in 1 in 2000 cases according to those who have studied the statistics. This author knows a number of people that are quite worried that their child or spouse could contract measles which would be a death sentence for them. It is easy to see the argument that the abovenamed Poskim who permit informing on an unsafe driver would likewise allow informing upon someone that risks lives by not vaccinating.

MIGDAR MILSAH

In halachah, there is a concept called migdar milsa (see Tashbatz Vol. III #168 based upon Yevamos 90b) which literally means “guarding the matter” where the tuvei ha’ir or the roshei kahal can apply corporal pressure to ensure that justice is served. Even though the Bach on the Rif in Perek HaGozel qualifies this to say that only leaders of the entire generation may do so, the practice in Europe was to allow the communal leaders to do so. If the repercussions were just to be vaccinated – it would seem that this should be no different than having the Tuvei haIr apply a corporal punishment.

WHAT IS THE NATURE OF THE NEW YORK LAW?

The New York vaccination order is written in such a manner that it is unclear what the repercussions are – but could be interpreted in both ways. That is – it could force a fine or a vaccination. Mayor de Blasio’s order states that those in the affected neighborhoods who refuse to vaccinate themselves or their children can be be fined $1,000.

The order issued by the New York City health commissioner, Dr. Oxiris Barbot, said anyone who has not been vaccinated “shall be vaccinated.” There is an added warning underneath her signature that states: “failure to comply is a misdemeanor and can lead to fines or imprisonment.”

Later, the NYC Health Commissioner stated that “persistent refusals would be handled on a case-by-case basis, and we’ll have to confer with our legal counsel.”

CONCLUSION

It is this author’s view that there is clear and ample room to allow someone concerned to inform on someone who is endangering others by not vaccinating in the areas where the disease is rampant. The decision, however, should be made by Gedolei HaPoskim. The issue is now being presented to them. Stay tuned.

The author can be reached at [email protected] .

As reported by Vos Iz Neias