Ultra-Orthodox rabbis meet with NYC mayor Michael Bloomberg regarding ritual circumcision, August 11, 2005. (Photo credit: Edward Reed)
The deal between NYC and Satmar is expained by Debra Nussbaum Cohen in tomorrow's NY Jewish Week:
The city of New York last week withdrew its lawsuit against a fervently Orthodox mohel suspected of transmitting herpes to three baby boys — one of whom died — and after nearly a year of investigation turned the matter over to a chasidic rabbinical court in Williamsburg, Brooklyn, a move described as unusual by some legal experts.
Since the investigation of Rabbi Yitzchok Fischer began, the case has proven a nexus where ancient religious practice, public health, constitutional law and political influence converge, and it is made even more complicated by the fact that this is an election year. It also appears to be the first time that New York City government has turned over a case involving public health to a religious body for adjudication.
Arthur Eisenberg, legal director of the New York Civil Liberties Union, said that the health department’s turning the matter over to the rabbinical court “surprises me.”
He said that while the U.S. Supreme Court has “substantially weakened” constitutional protection conferred on the free exercise of religion, this case seems one in which government’s legal right to intervene seems clear.
“Where there are allegations of serious health problems arising from the practices of a specific mohel, intervention by public health officials is appropriate,” Eisenberg said.
With the agreement struck with the Central Rabbinical Congress, a religious court whose more typical cases deal with marital and business disputes in the Satmar, Pupa, Vishnitz and Skver chasidic communities, the city’s temporary restraint order was lifted against the mohel.
Still, according to a brief statement from the city’s health department, Rabbi Fischer has agreed to not perform metzitzah b’peh — which is oral suctioning of blood off a baby’s penis after a ritual circumcision — while the rabbinical court investigates whether it is prudent or not to allow him to continue the practice.
There has long been dispute among rabbinic authorities in Jewish law over metzitzah b’peh, and discussion of it is detailed in the Talmud. Today only mohels serving the fervently Orthodox community engage in metzitzah b’peh, with others using different methods — a pipette or a sponge — to suction.
That chasidic rabbinical court began its investigation two weeks ago. “It will take as long as needed to get to the bottom of the case,” said Rabbi David Niederman, head of United Jewish Organizations of Williamsburg, who is coordinating the investigation. He declined to specify what it will involve, though he did say that infectious disease experts are being consulted and that rabbis on the religious court have spoken with Rabbi Fischer.
“I don’t want to go into all the details,” he said. “This is a private affair.”
Rabbi Fischer’s attorney, Mark Kurzmann, would not allow him to speak with a reporter and said, “I’m gratified that the city’s case is over.”
“This is an important religious free-exercise case,” said the attorney, adding he felt the city’s actions “reflect responsible officials coming to grips with the reality that there is credible, factual or scientific basis for the belief that these three cases aren’t anything but tragic coincidences.”
He said he does not know if Rabbi Fischer does metzitzah b’peh at brit milot outside of New York City and declined to ask him.
New York City’s case began last November, after health department officials learned that three babies — twin boys in Brooklyn and another in Staten Island — showed signs of being infected by herpes within days of being ritually circumcised by Rabbi Fischer. One of those twins soon died.
The health department asked Rabbi Fischer to have his blood and saliva tested and initially, court documents say, he did not cooperate. Eventually, however, he did.
As soon as the city moved against Rabbi Fischer, the fervently Orthodox community framed the issue as one of the free exercise of religion and lobbied hard to end health department involvement.
A first major meeting between rabbis and Mayor Michael Bloomberg was held in January. “That meeting and several others got us to the point of getting the city to commit not to regulate the practice of metzitzah b’peh,” said Rabbi David Zwiebel, executive vice president for government and public affairs at Agudath Israel, which represents the interests of the fervently Orthodox community, who was at the meeting.
After months of meetings between rabbis and other fervently Orthodox community representatives, and New York City’s Department of Health and Mental Hygiene, some 20 rabbis met with Mayor Bloomberg this summer and apparently persuaded him that the case was a matter they, rather than a government agency, should deal with.
“This is a victory in the abstract because whenever you have a serious religious matter, then those are best left to religious communities to handle,” said Rabbi Zwiebel.
“The mayor saw that this is a question of religion vs. a tradition, for example, and thought about it and said ‘you’re right,’ ” said Rabbi Niederman, who attended the recent meeting.
Rabbi Niederman denied that the mayor and agencies under his control turned the case over to the chasidic community during the run-up to a mayoral election rather than alienate a population that votes as a bloc.
“The mayor is going to be re-elected. We all know that. This is not a political issue,” said Rabbi Niederman.
According to Kurzmann, “this is not a case of political power subordinating public health issues. No one cares more about the health of a community’s infants than the community itself.”
Others, however, said that election-year politics appear to be at play. Some observers felt Bloomberg was not willing to risk alienating the Satmar community, known for voting in a bloc.
Legal experts say that this not the only case in which the need to protect public health has conflicted with the Constitution’s clause guaranteeing Americans the right to the free exercise of religion.
There is a federal ban on female genital mutilation, which is a cultural and religious practice in some African communities, because it does irreparable harm to women, said Marc Stern, general counsel to the American Jewish Congress.
There have also been cases of children being inoculated even against their parents’ religious objections, Stern said.
In his view the health risk of metzitzah b’peh has not been proven, said Stern. “There’s substantial question about whether there is or isn’t harm.”
A paper in the medical journal Pediatrics last year studied eight cases of baby boys in Israel who developed herpes after their circumcision, “most probably as a consequence of transmission by the mohel’s saliva,” it states. “Oral metzitzah after ritual circumcision may be hazardous to the neonate” because it “carries a serious risk for transmission” of the herpes simplex virus.”
The City Department of Health is not making public the conclusion of its medical investigation.
In 1998, the health department worked with the Orthodox community to get another mohel to stop using metzitzah b’peh after he was linked to two cases of neonatal herpes, according to a legal brief submitted by Dr. Susan Blank, the health department’s assistant commissioner.
Dr. Edward Reichman, an Orthodox rabbi and associate professor of emergency medicine at Montefiore Medical Center in the Bronx, said that the first ties between the technique and infection were reported in a book published in 1811.
A doctor wrote that a group of infants in Krakow’s Jewish quarter were afflicted with genital ulcers, and that it could be traced to the mohel who had performed metzitzah b’peh on them all. At least one of the babies died.
Through the early 1900s, tuberculosis and syphilis were reported as being transmitted, on occasion, between mohels and babies.
For millennia, oral suction was thought to prevent problems for the newly circumcised infant, not create them. But then modern medical science realized that the reverse can actually be true and since the 1950s most American mohels have used pipettes or sponges.
“Once we found out that it is not helpful and moreover, is dangerous, there is absolutely no reason to continue with it, and it should be forbidden,” said Rabbi Leonard Sharzer, a mohel who consults with the New York Board of Rabbis. “Why some groups persist in doing this thing that is dangerous when it was only instituted in the beginning for medical reasons, I can’t think of any reason why it would be done,” he said.
The centrist Orthodox Rabbinical Council of America put out a statement in March strongly advocating use of a tube for suctioning, though it did not ban direct oral suctioning. The fervently Orthodox maintain that it is a crucial aspect of fulfilling the obligation of brit milah — and apparently persuaded city authorities of its necessity.
The key points:
- There is a 200 year history of disease transmission through metzitza b'peh.
- This is a real public health issue and lives are truly at stake.
- Turning over the matter to a beit din is a clear violation of the separation clause.
- Satmar (and other haredim) vote in blocks.
- This is an election year.
- The CRC cannot be an honest broker. It's key members have already endorsed MBP and opposed using a tube.
- Agudath Israel again has acted in the best interest of its member rabbis, but against the best interests of the Jewish community at large.