The following appeared in Thursday’s NY Daily News:
Every grade school student knows that the First Amendment to the Constitution guarantees our freedom of religion and freedom of speech. Yet if all goes as planned Thursday, the city’s Board of Health will adopt regulations that violate both of those freedoms.
What is at issue is a ritual practice known as metzitzah b’peh , during which oral suction by a mohel is used to draw blood from a circumcision wound. The city contends that over the past 12 years, 11 children so circumcised have contracted the herpes virus, and that as a result, two of them died and two suffered brain damage.
By comparing these figures with the incidence of herpes infection among infant girls and other boys, the city estimates that there should have been only a handful of such cases over these 12 years, not 11. Others, most prominently Dr. Daniel Berman of Westchester Square Medical Center in the Bronx, contest the city’s methodology and estimates, as well as the causal connection they suggest.
In an affidavit Berman submitted to the Health Department, he concluded that “based on my review, the data do not support the conclusion that metzitzah b’peh increases the risk of infection.”
The regulations being considered Thursday have two components. They would require every mohel to distribute to parents a form drafted by the city that sets forth the Health Department’s views about the procedure. They would also require a mohel to obtain the written consent of both parents before performing such a circumcision.
There are thousands of circumcisions with metzitzah b’peh performed safely in New York each year. Nevertheless, even one avoidable death or serious injury is one too many.
The problem with the proposed regulations is that they are far more likely to offend the Constitution than protect children. Metzitzah b’peh is practiced primarily by Hasidic Jews, who believe it to be a necessary element of circumcision. Since a government form will not alter that belief, the regulations will not affect public health.
I do not question the motivation of those promoting these regulations. But being well-intentioned only takes you so far. As the Supreme Court has cautioned, it is no excuse “that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens.”
Even worse is the city’s stated desire to persuade parents to follow the guidance of rabbis who permit circumcision without metzitzah b’peh . Whatever my own views, I do not want the government advocating for particular interpretations of Jewish law.
The regulations are even more problematic on free speech grounds. The city is trying to compel every mohel to distribute the Health Department’s views. But compelling speech is as much a constitutional violation as censoring it.
Just last month, a federal appeals court in Washington struck down Food and Drug Administration regulations requiring cigarette manufacturers to place certain graphic warnings on every pack of cigarettes.
The court acknowledged that the government can “use shock, shame and moral opprobrium” to discourage people from becoming smokers, but it drew the line at making “every pack of cigarettes in the country a minibillboard for the government’s anti-smoking message.”
The same reasoning is likely to invalidate the proposed circumcision regulations. The form of circumcision the government is trying to discourage is entirely legal. And since the regulations compel individual speech, not the commercial speech at issue in the cigarette case, they will be subject to even stricter legal scrutiny.
To be sure, the city is free to inform people of its belief that there are health risks associated with this particular form of circumcision. What it can’t do is forcibly conscript every mohel to serve as a foot soldier in that campaign.
If we are honest, we will acknowledge that these regulations have come about at least in part because this particular practice seems anachronistic and odd. As others have noted, it is hard to imagine the city forcing priests to issue health warnings and obtain informed consent waivers prior to delivering Communion, on the theory that communal sharing of a single cup presents a heightened risk of transmission of disease.
Our nation’s first Congress met in lower Manhattan, just blocks from City Hall. It was the genius of our constitutional draftsmen to foresee and forestall the burdens that government might seek to place on those whose practices and beliefs are at odds with the mainstream. The members of the Board of Health ought to remember and respect their work and wisdom.
Schick is a lawyer in private practice. From 1999 to 2009, he served in New York State government as a deputy attorney general and as president of the Empire State Development Corp.
(Article submitted to YWN by the author)