This past spring, the Orthodox Jewish world saw rabbis employ halachic creativity and ingenuity to facilitate observance of Jewish holidays and essential rituals in the face of COVID-19. The degree of flexibility was remarkable, particularly as we note the arenas of halacha where such creativity and ingenuity have not been applied. The most prominent of these arenas is the precinct of the agunah — a woman chained to a marriage because her husband refuses to grant her a get (bill of divorce). Though these two complicated situations differ in many ways, an analysis of how the Orthodox community has navigated the pandemic may expose a new vantage point from which to approach the stubborn and thorny territory of the agunah.
From the onset of the coronavirus crisis, rabbinic leadership found itself grappling with such questions as how to perform a taharah (the ritual washing of the dead) on one who had died from COVID-19, how to pray, how to marry, how to conduct a brit milah (circumcision) without the ability to convene a minyan. Lay people were able to watch the halachic process unfold in real time, as rabbis figured out how to apply the age-old law to the new circumstances. Many teshuvot (responsa) were published, codifying the determinations of Jewish law that were taking place.
Orthodox Jews took special note of the thoughtful and empathic rabbinic response to those who had potential mental health concerns around the “three-day yom tov” (two days of holiday running into Shabbat) under lockdown. Recognizing that those who live alone and do not use electronic devices on the Sabbath would be fundamentally bereft of even hearing another human voice for 72 lonely hours, Rabbi Herschel Schachter, Rosh Yeshiva at RIETS of Yeshiva University, publicized his halachic decision of March 25, 2020. In it, he explained that if someone was potentially at risk for suicide because of these extreme psychological circumstances, family members must — not can, must! — reach out to the person in need, even electronically, during the holiday and Shabbat.
Rabbi Schachter explained that he was relying on the halachic expertise of Rabbi Moshe Feinstein, and that of his rebbe and mentor, Rabbi Joseph B. Soloveitchik, both of blessed memory. Rabbi Feinstein acknowledged decades ago that psychological distress should be considered life-threatening in certain circumstances. Rabbi Soloveitchik established his concern for one who is psychologically distressed even if it does not go so far as to be life-threatening. He cited his grandfather, Rabbi Chaim Soloveitchik, who believed that the danger of “losing one’s mind” should be treated in the same way as grave physical danger. Following in Rabbi Schachter’s footsteps, the Rabbinical Council of America (RCA), an association of Orthodox rabbis, released a statement on April 7, 2020, clarifying and elaborating this same point.
In light of this sensitivity to emotional distress, we ask that the rabbinic community revisit the circumstances of the agunah, with an eye to recognizing her physical, emotional, and psychological state as a condition of pikuach nefesh (saving lives). Rabbinic authorities could collaborate with experts in the field of mental health to determine the application here of Rabbi Chaim Soloveitchik’s statement that when “there is a concern that someone will lose his or her mind, even if [one’s] life is not in danger, that too is considered a case of pikuach nefashot.” Once an agunah’s case is classified as extreme or even life-threatening mental anguish, the halachic toolbox might expand — as it has throughout this pandemic — to include new halachic applications that have not been employed thus far.
We understand that using this principle to effect a change in personal status is far more complicated than invoking it to violate Shabbat, which is supported by long-standing precedent. However, we now have hard data that underscores the immense impact that iggun (being chained to a marriage) has on a woman and her family. We suggest that pediatricians and psychologists like ourselves, who have worked long and hard in our fields, might help the rabbinical establishment to understand the toxic mental and emotional cost of this situation to agunot, their children, and our community at large, who continue to witness it powerlessly. We have the facts. Tell us what you need from us in order for us to be able to collaborate productively.
One of the unintended positive consequences of the coronavirus crisis has been the visibly nimble rabbinic response to urgent need. We now see — and are buoyed by — how resolutely Halacha responds to the likelihood of intolerable suffering, and how resilient our system can be under strong and confident leadership. At this moment, however, the rabbis have not addressed their concern for an agunah’s certain, ongoing, and well-established mental anguish with the same urgency that they brought to the plight of an isolated person facing a lonely Seder night. We think both individuals require halachic attention and care. It thus seems fair to consider seriously how the principle of “pikuach nefesh” might factor into solutions for the agunah. What would the rabbinic response be to an agunah who said she was severely depressed or even feeling suicidal because of her chained status?
Throughout the COVID-19 crisis, the halachic establishment has recognized the concerns of life-threatening ailments that go beyond the virus itself. We have seen the language of pikuach nefesh employed to justify bold and difficult action with enlightened empathy. We are now asking whether that language can take us further. We call upon our rabbinic leaders to recognize the agunah crisis as constituting a clear and present case of physical and emotional abuse being conducted in full view of our entire community, including our children. We ask our resourceful halachic leaders to recruit health professionals as necessary to help them use the powers at their disposal — specifically, invoking the principle of pikuach nefesh — to rid us once and for all of this shameful scourge that infects our communal lives.