Three noted professional medical associations have submitted an amicus letter to the court opposing a motion for a preliminary injunction against the enactment of the New York City’s new rule requiring informed consent for metzitzah b’peh, the controversial oral suction circumcision ritual.
The rule was passed in September and was set to take effect on Oct. 21, but the health department agreed to a brief stay of enforcement after haredi organizations and three rabbis filed a lawsuit against the city arguing that the rule was unconstitutional; the health department consented to the stay in place of the plaintiffs asking the court for — and litigating — a temporary restraining order on the condition that the court would hear the case quickly.
The U.S. District Court for the Southern District agreed and a hearing on the matter was originally scheduled for Nov. 14, but was postponed due to Hurricane Sandy. The hearing is now scheduled for Dec. 12.
The amicus letter was submitted to Judge Naomi Reice Buchwald by the law firm of Gibson Dunn & Crutcher on behalf the American Academy of Pediatrics, the Infectious Diseases Society of America and the American Sexually Transmitted Diseases Society. It begins by noting that these organizations are “gravely concerned about the public health implications of an injunction against the implementation of the challenged parental consent regulation, and from a ruling that the regulation is unconstitutional.”
Drawing on medical data from as long ago as 1811 and as recently as this year, the letter goes on to assert that — contrary to the plaintiffs’ claims — there is “incontrovertible” evidence that the Herpes virus and other infectious diseases “have been transmitted through direct oral suction and direction oral suction increases the risks of transmission.”
Countering the plaintiffs’ contention that the consent requirement acts as “a vehicle to unconstitutionally compel” the speech of ritual circumcisers, the groups argue that “informed parental decision-making, including the disclosure of risks to the parents, serves a vital public health function and is a Constitutionally-protected parental right.”
They further note that the regulation does not require the ritual circumciser to provide any information, but simply forbids anyone performing direct oral suction on an infant from doing so without first obtaining the consent of the parent or guardian. As such, they point out, the “required speech — such as it is — is that of the parent, not the ritual circumciser, as the required consent language makes clear.”
Finally, the letter argues that public health and policy considerations “support deference to medical professionals” and that the government’s ability to effectively address public health concerns would be severely hampered by adherence to what it characterizes as a “dangerous standard proposed by the plaintiffs” — namely the idea that any dispute over medical facts justifying a public health regulation would render the regulation legally invalid. (The letter points out that the plaintiffs have in fact failed to demonstrate that any serious dispute over the medical facts actually exists in this case, such as a scientifically accepted consensus against a causation between direct oral suction and the Herpes virus and other infections.)
Noting the legitimate government role in safeguarding the health of the community, the letter invokes a 1944 Supreme Court decision in Prince v. Massachusetts to conclude that “[ritual] circumcisers’ religious freedom ‘does not include [the] liberty to expose the community or the child to communicable disease or the latter to ill health or death.’”
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