"…What belief is being burdened by the requirement that the mohel tell the parents the practice is dangerous to infants? Do they have a belief that parents must be ignorant of potential medical harm to their infant? Are they saying that rabbis have a right to impose religious practices without full disclosure where the potential result is the death of a child? Really?…Informed consent is always required when a doctor performs a circumcision. Why should rabbis be absolved of the same obligation during the same procedure that involves creating a wound on an infant?…"
Professor Marci A. Hamilton, the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, writes on Justia.com:
Who Will Protect New York’s Children from Preventable Death and Permanent Disability?
For millennia, Orthodox Jews have been celebrating the birth of a boy with a ceremony called a “bris” at which the boy is named and circumcised by a rabbi. Typically, it occurs within days of the birth. One of the ancient practices, which has been abandoned by most rabbis, has the rabbi, or mohel, engage in oral suction of the blood from the wound following the circumcision; it’s called metzitzah b’peh, or MBP. There are some remaining ultra-Orthodox Jewish rabbis, however, who do still engage in oral suction.
That is not good news, because, according to the Jewish Daily Forward, “since 2000, 16 infants in New York City are suspected of contracting herpes following MBP. Two of those babies died and at least two others suffered brain damage.” The most recent cases were announced last month.
The Medical Science Is Solid: Oral Suction Poses an Unreasonable and Preventable Risk and How New York City and State Have Failed to Protect Infants
Here is the problem: infants with an open wound, like a brand new circumcision, are susceptible to infection from oral suction and in particular herpes. Many people in the United States have some form of herpes. It is not a serious health risk for most, but for an infant, it can be catastrophic, leading to death and/or permanent disability.
The medical science is quite clear: if an infant has an open sore exposed to the saliva of an adult with active herpes, that infant has an increased risk of death or permanent disability. Leading health organizations, like the American Academy of Pediatrics, Infectious Diseases Society of America, Pediatric Infectious Diseases Society, and American Sexually Transmitted Diseases Association as well as many others, including Jews and rabbis, have weighed in against the practice as an unnecessary and unreasonable risk to infants. The easy solution would have been for the remaining rabbis who practice oral suction to desist. That did not happen.
The next best thing was to educate parents of infants undergoing oral suction that their infants were at risk. Pamphlets were distributed, with the New York City Department of Health and Mental Hygiene urging parents to decline the practice for the health of their children. There was no guarantee, however, that the information was being disseminated, as at least one family whose infant contracted herpes following the ceremony said that they were unaware of the risk.
So the Department went a tiny step farther and issued a requirement that the rabbi, or mohel, obtain informed consent from the parents. He must inform them of the health risks and obtain their signature before conducting the ceremony. I suppose the idea was that at least some of the parents might decline oral suction when they learned of the risk to their infants.
The informed consent requirement, though, did not make the mohels happy, and they claimed that it is a violation of their religious freedom to inform parents that the religious practice they are about to perform could kill or disable the infant boy.
Recent Litigation Over the Informed Consent Requirement
Enter the courts. Last week, the U.S. Court of Appeals for the Second Circuit ruled in Central Rabbinical Congress v. New York City Dept of Health & Mental Hygiene that the informed consent regulation is specific to the ultra-Orthodox and therefore, must be subject to strict scrutiny under the Free Exercise Clause. Interestingly, the court, however, did not enter an injunction on the requirement, but rather sent the case back to the district court to determine whether the law serves a compelling interest and is narrowly tailored.
In my view, the Second Circuit erred in two ways. First, it skipped over any serious consideration of whether the law imposes a substantial burden on the mohels. What belief is being burdened by the requirement that the mohel tell the parents the practice is dangerous to infants? Do they have a belief that parents must be ignorant of potential medical harm to their infant? Are they saying that rabbis have a right to impose religious practices without full disclosure where the potential result is the death of a child? Really? The burden here is incidental, not substantial, and never should have triggered further free exercise review.
The second error was in the Second Circuit’s consideration of the universe of regulations for purposes of determining whether this requirement was neutral and generally applicable. Informed consent is always required when a doctor performs a circumcision. Why should rabbis be absolved of the same obligation during the same procedure that involves creating a wound on an infant? The regulation was needed because the rabbis are non-medical personnel engaging in a form of surgery in a way that raises the infants’ health risk and, therefore, they were the only ones performing circumcisions whose practices were not covered by informed consent.
If the lower court were to hold that the law is unconstitutional, the next step should be a state law that requires informed consent from the parents for all circumcisions, whether performed by medical or non-medical personnel, and that informed consent must be explicit about the actual health risks attendant upon that practitioner’s procedure. That is as neutral and generally applicable as it gets.
The court did not, as it should not, enter an injunction on the practice, but merely sent the case back to the district court for further findings on compelling interest and whether the law was narrowly tailored. That is when the person whose life is at stake will be at the forefront of consideration, as it is obvious that finding some means of deterring these risks to infants serves a compelling interest and that the law is narrowly tailored to the single practice during the circumcision ritual that puts the infants most at risk.
This Is All a Distraction From What Truly Matters: The Protection of Children
The informed consent rule and this recent decision are really a sideshow. The truth is that New York City and State have been dithering while the lives of infants are at risk. When an infant contracts herpes following oral suction, the authorities should criminally charge parents and the participating rabbis with child neglect for subjecting these infants to the unreasonable health risk of the practice. A line must be drawn to prevent adults, even religious believers, from causing a child’s death and/or permanent disability. This practice easily crosses that line. There does not even need to be a regulation specific to the practice. The neglect laws are neutral, generally applicable laws that apply to all parents who medically neglect their children.
From the perspective of the infant looking up at the adults during the bris, it doesn’t matter whether mom and dad were told by the rabbi that he might die or be permanently disabled. He should have the right, under the laws of every state, to be protected from death and disability from avoidable risks, regardless of his parents’ religious beliefs.
The First Amendment is not a license to endanger children, and a child’s life is no less valuable simply because his parents are religious.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights.