Judge Denies Haredi Request For Injunction To Ban Metzitzah B'Peh Informed Consent

U.S. District Judge Naomi Reice Buchwald on Thursday refused to issue a preliminary injunction against the change to the city’s health code requiring the informed consent to be signed by parents before a brit milah, circumcision, involving metzitzah b'peh (MBP). MBP has killed and maimed babies. Even so, haredim called the NYC informed consent requirement an unwarranted government intrusion on religious freedom and sued to stop it. Today the judge ruled that there is ample evidence the procedure is dangerous and refused to ban the informed consent.

 

Michelle Goldberg-Cahn, Senior Counsel, Administrative Law Division, NYC Law Department, released this brief statement on behalf of NYC tonight.
 
"We are gratified the Court is allowing this significant public health rule to proceed unimpeded.  Informing parents about the grave risks associated with this procedure is critical to safeguarding infants' health.  As the Court recognized, the City carefully balanced the plaintiffs' religious rights with important public health concerns surrounding direct oral suction during circumcision,"  Goldberg-Cahn said.

Judge Naomi Reice Buchwald of United States District Court for the Southern District of New York refused to block the informed consent because the legal and medical arguments made by Satmar, the CRC, Agudath Israel and the other plaintiffs were so weak that they have little chance to win their case once it goes to trial.
 
"Based on the records presently before us, we conclude that [the] plaintiffs are not likely to succeed on the merits of any of their claims.  Additionally, in light of the quality of the evidence presented in support of the regulation, we conclude that a continued injunction against enforcement of the regulation, would not serve the public interest." – Pages 91-92 of the decision, which is posted below.

Judge Naomi Reice Buchwald also discussed the medical evidence.

“There is ample medical evidence that direct oral suction places infants at a serious risk of herpes infection, as well as evidence that parents are sometimes unaware in advance of a circumcision that MBP will occur, and the regulation plainly addresses these legitimate societal concerns.

“As enacted, the regulation does no more than ensure that parents can make an informed decision”

The Case Background (from NYC Law Department):

"On September 13, 2012, the New York City Board of Health approved an amendment to Article 181 of the New York City Health Code, § 181.21, requiring those performing direct oral suction of the infant penis, a practice sometimes performed in connection with circumcision, to obtain the written consent of the infant’s parent or guardian prior to performing the circumcision.  

"Health Code § 181.21 requires that the parent or guardian has been informed that DOHMH advises against direct oral suction because of grave risks associated with the practice, including infection with herpes simplex virus (HSV), which can lead to brain damage and death.  Over the last several years, DOHMH learned of 11 cases of laboratory-confirmed neonatal HSV infection in the weeks following circumcision with direct oral suction, where 10 of the newborns were hospitalized and two died.  The purpose of Health Code § 181.21 is to educate parents about the risks associated with direct oral suction, so that parents can make an informed decision about whether it should be performed as part of the circumcision.

"In October 2012, prior to the rule taking effect, the Central Rabbinical Congress of the USA & Canada, Agudath Israel of America, and the International Bris Association, along with individuals who perform ritual circumcisions in New York City, commenced a federal lawsuit against the New York City Department of Health and Mental Hygiene, the New York City Board of Health, and DOHMH Commissioner Dr. Thomas Farley, challenging the constitutionality of Health Code § 181.21.  Specifically, these plaintiffs claimed that their First Amendment rights guaranteed by the Free Exercise Clause of the United States Constitution and the New York State Constitution prohibit DOHMH from promulgating Health Code § 181.21.  In addition, plaintiffs alleged that Health Code § 181.21 violates their free speech rights under the First Amendment by compelling speech.  

"The defendants consented to a short stay of enforcement of the rule while the plaintiffs’ motion for a preliminary injunction enjoining Health Code § 181.21 was being briefed and argued.  The court continued that stay until this evening."      

The informed consent requirement starts immediately. If you're at a bris tomorrow and MBP is done, and the parents tell you they did not sign a consent form, report the mohel to the NYC Department of Health and Mental Hygiene. 

The haredi litigation to block the informed consent, however, can still continue – if haredim want to waste hundreds of thousands of dollars trying to convince educated people that they are really right and that the hundreds of doctors and scientists and public health experts who oppose them are all wrong.

Here's the whole decision as a PDF file:

Download [MBP] Central Rabbinical Council PI_Denied watermarked

Comments

[Office of the Chief Rabbi]

I was so glad the Governor Cuomo came out against MBP in his State of the State Address yesterday.

[Joe Field]

Yip yip hooray

[Eli, what me messiah?]

Judge Buchwald has a reputation as a sensible judge, so a different outcome was hard to imagine.
Can anyone imagine the headlines if she had ruled differently? "Federal judge allows direct oral suction on infants, despite documented health risk".
Still, this is good to see.

[Atheodox Jew]

an unwarranted government intrusion on religious freedom

Actually, it occurs to me that NY mohels should be thankful they don't have to be "licensed" by the state, since after all they're performing a medical procedure.

[dh]

"Federal judge allows direct oral suction on infants, despite documented health risk". Eli @ 8:48

That's what she's doing, isn't it? Only the issue of informed consent was before her, I thought, not the activity of the penis sucking ritual - the britual.

[A. Nuran]

A decent start.
The only sane way this will end is completely banning the disgusting, filthy practice

[Eli, what me messiah?]

dh, good point. Would have been,
"Federal judge allows....without any warning to or consent from parents"
Man, the bar is set pretty low, isn't it?

[Chief Hole-in-the-Sheet]

In last week's parasha Tzipora took a fint-stone and did a brit on her son (Moshe had been negligent in this). Question: Did she do MBP? Does anyone know from traditional sources?

[Abracadabra]

So now all suckers have to get signatures.

Why do I see more fraud and problems in the coming months and years with regard to this new law pertaining to people who do not have much regard for the law of the land? Must be those nasty prophecies again. God, I wish those prophecies would stop!

The Satmar Rebbes and other Hasidic Rebbes (including the Lubavitcher Rebbe Shlita) and the Agudah "Gedolim" are going to trip over themselves competing in who can make the most ludicrous pronouncements instructing their zombies, I mean sheep, I mean flocks, about how disregarding this new law is in fact a mitzvah. Then there will be cries of "Anti-Semitism" coming from people whose grandparents and great-grandparents knew what REAL Anti-Semitism was, and would turn over in their graves if they knew what their ofspring were saying, doing, and complaining about.

Today's prophecy brought to you by Abracadabra.

[Adam Neira]

U.S. District Judge Naomi Reice Buchwald has made the right decision here.

[seymour]

it seems that then judge has more sense then all the robonum put together

I guess that is not saying much

[jancsibacsi]

Theese rebbes and their followers are so confused they dont know anymore whats good for them,someone should talk sense into them if thats possible,it looks that the onlt way they will learn anything is by being beaten up and punished each time they act stupidly pain is the only thing they understand and they need to be bought to their senses the sooner the better.

[Garnel Ironheart]

Again, I'm not sure why the Chareidim care so much. Present the consent form to the parents and tell them that if they don't sign it without asking any questions or even reading it then the infant will be denied entry into any local yeshivos and won't find a shidduch when he's older.

[...]

Aguda teleconference today at 12:30 pm EST chaired by georgio whineburger and some attorney.

[JessicaR]

While I don't want to comment on Metzitzah B-Pei itself, I do want to point out that a child who contracts Herpes Simplex 2 in early infancy may have a higher risk of developing schizophrenia in adult life--at least mothers with antibodies to this virus have children who develop this devastating condition at a higher rate. Something to think about.

[Wigmore]

The first lawyer listed is a litigation partner at the BigLaw firm of Jones Day which means his billing rate is at least $1,000 an hour.

Where is this money coming from?

[David]

What happens if the parents are offered the informed consent form and don't sign it? Is the bris canceled?

[Shmarya]

What happens if the parents are offered the informed consent form and don't sign it? Is the bris canceled?

Posted by: David | January 11, 2013 at 03:46 PM

It should be.

But what will happen is that haredim will play these games until a baby gets sick and the parents won't say who the mohel was, or the mohel can't produce the signed informed consent document.

And then the city will have to decide whether to arrest them or not.

[Not Surprised]

TO: "Office of the Chief Rabbi"

Where did Cuomo mention anything about this. I just reviewed the transcript and didn't see anything. I'm glad about the ruling. I know what I think doesn't matter) I don't know why so many people are upset about it - everytime you have the slightest medical thing done, you have to sign 25 different forms. Anyone who wants to have this done is free to sign and do it. When our son had a bris over 20 years ago, I didn't even know about MBP. I wish I had. Now more people will be able to make a choice. Whats the big deal?