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: