High Court: Hospitals Have No Authority to Bar Leavened Products Brought in During Passover

Such a ban would violate fundamental rights including freedom of religion, and hospital security guards had no authority to enforce it, the court ruled

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Ultra-Orthodox Jews in Israel preparing shmura matza, a special type of the traditional Passover staple, April 2016.
Ultra-Orthodox Jews in Israel preparing shmura matza, a special type of the traditional Passover staple, April 2016.Credit: Gil Cohen-Magen

Israeli hospitals have no right to ban unleavened food that is not kosher for Passover from being brought into the hospital during the holiday, or to have security guards search the food that visitors bring during that period, the High Court of Justice ruled on Thursday.

A sweeping ban on bringing “hametz” – unleavened food – into the hospital “infringes on fundamental rights of the first order, on the autonomy of the individual and freedom from religion,” the court stated. The court gave hospitals, the Health Ministry and the Chief Rabbinate 10 months to find a solution in keeping with its decision, which in practice means before next Passover, which begins on March 27, 2021. “Hospital guards will refrain from taking any steps to enforce the matter of kashrut during Passover, including making comments to visitors to the hospitals on the subject of food and its kashrut,” the ruling stated.

The practice of only allowing in fresh fruits and vegetables and packaged foods that are certified as kosher for Passover was not based on a formal Health Ministry decision but was instituted at most hospitals in Israel at the request of the Chief Rabbinate, the court noted.

The practice, the court said, infringes on the dignity of patients and their right to decide on their own identities and preferences. “Given the circumstances that usually lead to hospitalization, and in light of the hospital setting, where the patient’s room is the only personal living space at his disposal, we find that the scope of the violation of these rights is considerable.”

“The hospital administrations did not indicate any clear and explicit authority to prohibit bringing food into the area of the hospital on religious grounds,” the court stated, and added that hospitals have an obligation to permit patients to observe Jewish dietary laws but need to do so in a way that does not infringe on the rights of others who are there.

Staff outside Hadassah Hospital during a strike in 2019.
Staff outside Hadassah Hospital during a strike in 2019.Credit: Emil Salman

“Kashrut should be maintained in the hospital kitchen during Passover and of the food that it provides to the dining rooms for patients desiring it. At the same time, we believe that a solution should be sought that makes this possible without severely infringing on the patients’ autonomy to consume food in their small area of personal space.”

The case was filed in 2018 by the Secular Forum organization together with the Adalah Legal Center for Minority Rights and other petitioners. The decision was written by Justice Uzi Vogelman with the concurrence of Justice Ofer Grosskopf and with Justice Neal Hendel dissenting. In his dissent, Justice Hendel wrote that the case involved “a social conflict that requires a social solution.” It does not involve “a clash between rights that requires a decision in favor of one party, but a case in which all of the parties have rights in a democratic society and which is appropriate to resolve by consensus beyond the confines of the court and not through a judicial decision.”

In response to the decision, the Secular Forum said: “The High Court of Justice accepted our arguments today. This is a day for celebration for Israel democracy in general and the secular public in Israel in particular.”

Sawsan Zaher, a lawyer at Adalah, said the court’s decision brings to an end a “humiliating practice that showed contempt for the patients, employees and visitors at the hospitals. We welcome the decision which clearly rules that it is not possible to force religious laws on the public. The need to permit those members of the public who keep tradition to observe their faith cannot take precedence over the basic freedoms of the Arab public and of anyone else.”

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