Bris rite case could hinge on mohel’s First Amendment rights and procedure’s degree of risk.
Seventy years ago, an ordained Jehovah’s Witness minister named Sarah Prince sent a 9-year-old girl in her care to preach and distribute literature in exchange for donations on the downtown streets of Brockton, Mass. For her actions, Prince was convicted of violating Massachusetts’ child labor laws.
In her defense, she argued that those laws violated her 14th Amendment rights to exercise her religion and her equal protection rights. The Supreme Court disagreed, and in its 1944 decision held that “neither the rights of religion nor the rights of parenthood are beyond limitation. ... The right to practice religion freely does not include the right to expose the community or the child to communicable disease or the latter to ill-health or death.”
It was just that principle that Mayor Michael Bloomberg appeared to invoke this summer, in response to threats from haredi groups that they would sue the city if the Board of Health passed a rule requiring parents to give written consent in order for direct oral suction to be performed as a part of their son’s circumcision.
“We have an obligation to keep people alive and safe and the courts have held that up repeatedly,” Bloomberg said at a July press conference.
“There are certain practices that doctors say are not safe, and we will not permit those practices to the extent that we can stop them. You don’t have a right to put any child’s life in danger, and this [direct oral suction] clearly does.”
It seems Bloomberg’s words did little to affect haredi sentiment, and while the city says no suits have thus far been filed, after the law’s passage last week the haredi umbrella group Agudath Israel began seeking pro bono or reduced rate legal representation to litigate the matter.
Should a lawsuit proceed, it would hinge not on whether the government can place limits on religious freedom when child safety is concerned — both sides readily admit that it can — but rather on whether the government regulation targets religion and how the danger is communicated.
The new Board of Health regulation does not ban the practice of direct oral suction, known as metzitzah b’peh, which, according to the Centers for Disease Control, has been responsible for 11 confirmed cases of neonatal herpes (including two deaths and at least two cases of brain damage) in New York City between 2000 and 2011. Instead, it prohibits the person performing the circumcision from engaging in direct oral suction without first obtaining the written, signed and dated consent of a parent or guardian. The consent would include a statement that the parent understands that the department of health “advises … that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection which may result in brain damage or death.”
While metzitzah b’peh is practiced primarily within hasidic and some non-hasidic haredi circles, the health department says it has been contacted by parents from outside these communities who were unaware of the practice and the possibility that their child could have been subjected to it if the family had engaged a mohel from one of these communities to perform the bris.
Letters to the health department from the law firms of Jones Day and Young Sommer, written on behalf of the International Bris Association (IBA) and Central Rabbinical Congress (CRC) respectively, indicate that any legal challenge to the new regulation will be based on both the free exercise and free speech clauses of the First Amendment, and will apparently rely heavily on the opposition’s steadfast — and widely disputed — claims that metzitzah b’peh is safe, or carries what amounts to negligible risk to the infant.
Based on the precedent established in Prince v. Massachusetts, the government has broad authority to regulate the actions and treatment of children. And, the courts have held, it can to do so even when the activities they are regulating are engaged in for religious reasons, as long as the law does not target the religion but applies equally to both religious and non-religious practices.
In their letter on behalf of the IBA, attorneys for Jones Day contend that the health department rule, however, singles out metzitzah b’peh for a unique and particular burden — namely, the parental consent requirement — and thus violates the constitutional right to religious freedom by targeting a religious ritual for regulation. To support their claim, they cite Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, a 1993 case in which the Supreme Court found that the City of Hialeah had passed its law against Santeria animal slaughter with the intent of targeting Santeria ritual. The city had used the word “ritual” in its regulation, and had carefully written the regulation so that other forms of ritual slaughter (e.g., kosher butchering) were not affected.
The lawyers further argue that the direct oral suction consent regulation could not be sustained because the government would be unable to demonstrate a “compelling interest” because of what the lawyers assert is “scant, inconclusive, and (at best) debatable data” regarding the health risks of metzitzah b’peh.
Claims — advanced primarily by one infectious diseases doctor, Daniel Berman of Westchester Square Medical Center in the Bronx — that the government data are “scant” or “inconclusive,” and that the risks of MbP have not been adequately proved, have been vigorously challenged by leading infectious diseases specialists as well as professional organizations, including the Infectious Diseases Society of America, the American Sexually Transmitted Diseases Association and the Israeli Pediatric Association. Not only do these individuals and organizations stand by the CDC’s report, but many have told The Jewish Week that they strongly suspect that incidents of metzitzah b’peh-related infections — both viral and bacterial — are underreported and under-recognized by doctors who are unaware of the practice. They also emphasize that it against basic medical theory and standard hygiene protocols to place a human mouth on an open wound, particularly the wound of an immuno-compromised newborn.
The Jones Day lawyers also argue that because the regulation requires the mohel to obtain the consent, it in effect forces him to express the city’s message that metzitzah b’peh carries risk. This is a form of compelled speech, they argue, that is permissible only “when there is a compelling interest; where the regulation is carefully tailored to advance the interest and where there are no less restrictive means by which the government’s interest could be met.”
Thus, while the city can advise parents of the risks itself, the argument goes, it cannot order the mohel to spread its message — particularly a message with which the mohel disagrees, including on religious and scientific grounds. By attempting to force the mohel to engage in speech, the Jones Day attorneys contend, the new regulation violates the First Amendment’s guarantee to freedom of speech.
Several legal experts consulted by The Jewish Week believe that the argument regarding the free exercise clause is unlikely to succeed.
According to Dena S. Davis, a professor of religion studies at Lehigh University, unlike in Lukumi, “In this case, New York City doesn’t care whether the circumcision is religious or secular.
“It simply says that in any case in which a baby’s foreskin is removed and oral contact follows, the parents must be told beforehand that the city considers this dangerous, and the parents must provide signed consent. If some secular doctors in a hospital started doing that, they would be subject to the same regulation.”
However, Davis notes, “The problem here is that there is no imaginable situation in which such a thing would happen, outside of the religious ritual. So the city may be seen as targeting a specific religious practice.”
In order to remedy this, Davis suggests that “perhaps the city could rewrite the rule to require parental consent any time an adult applies oral suction to the open wound of a newborn.”
As for the argument that the new law violates the mohel’s free speech rights, many seem to believe it, too, would fail to persuade a court, given the nature of the practice at issue.
While the First Amendment generally forbids compelled speech — religious or otherwise — there is a large body of case law that has determined that the government has broad authority to require those who perform medical procedures to provide factual information about the potential risks of those procedures. Recently, federal circuit courts have upheld decisions (Planned Parenthood v. Rounds and Texas Medical Providers v. Lakey) requiring doctors to provide information about the health risks of abortion, provided the information is “truthful and not misleading.”
According to Alex Luchenister, associate legal director of Americans United for Separation of Church and State, “the [city’s consent] rule does not violate the free speech rights of [mohels] because it does not require them to say anything that they do not believe, but merely requires them to pass on what the city health department believes.”
Cardozo Law School professor and leading church-state scholar, Marci Hamilton, agrees, noting, “Doctors must [obtain consent] for every procedure. Mohels are performing a [surgical] procedure as part of a religious ritual. The burden on their speech is de minimis compared to the risk to the infant.”
Writing in Tablet, Akiva Shapiro, who is an Orthodox Jew and a constitutional litigator who has successfully sued the city, argued that Agudath Israel’s “lawsuit is doomed to fail” because “under no fair reading of the law has the Board of Health overstepped its powers under the First Amendment.”
While it remains to be seen whether a legal challenge to the new rule will in fact be mounted, city attorney Michelle Goldberg-Cahn told The Jewish Week, “We are confident that the Health Code amendment is lawful and that any legal challenge would fail.”
Nonetheless, a spokeswoman for the mayor, Samantha Levine, expressed dismay at the prospect of litigation.
“We are committed to informing parents about the risks of this procedure to their infants,” Levine told The Jewish Week in an e-mail. “And [we] would be disappointed if groups tried to prevent parents from being informed through a lawsuit.”