MARK WASHOFSKY

his readers the impression that questions and difficulties are unlikely to be raised against him at all. The difficulties, however, do exist; they have to do with the unspoken yet crucial assumptions on which his halakhic case must rest. If these assumptions can be challenged, it is clear that his ranking of the three criteria of resource allocation can also be challenged. Although Feinstein surely could have responded to such objections, these teshuvot, which survive as his literary testament on our subject, do not do so; they thus leave us intellectually unsatisfied, enunciating the law in ex cathedra fashion while doing little to persuade us that this view of the law is“the” correct one.

I therefore wish to turn to some of these challenges, in an effort to deepen the debate over this question, to suggest some alternative approaches, and to demonstrate why I think a long, dis­cursive responsum, though less pleasant to read, is usually to be

preferred to its shorter and simpler cousin.

Let us consider, first of all, the principle that Feinstein places at the epicenter of his system, the principle of equality of persons. This criterion works to forbid us, under virtually all realis­tic circumstances, to choose between patients. Those that are currently receiving treatment continue to receive it until the end; if patients are presented to us simultaneously, and neither is a tereifah, the determination of treatment must be left to chance, which means, again, that we do not choose between or among them. If we should ask why this principle predominates in Feinstein’s system, we would have to conclude that he construes the question of medical resource allocation as one of comparative evaluation of human life. That is to say, decisions concerning patient selection are understood quite literally as decisions as to which person or persons are more

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