Op-Ed By Avi Schick Calling On City To Back Off Metzitzah Following Court Ruling

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asch[Originally appeared in today’s Daily News – submitted to YWN by the author]:

A federal appeals court recently issued a decision sharply criticizing a third-term Bloomberg administration health regulation that reflects its we-know-best attitude. By now this is a familiar story — but this judicial slapdown involves circumcision, not soda.

The regulation prohibits a mohel from performing circumcision that includes metzitzah b’peh — direct oral suction from the wound — unless the parents sign a city-issued consent form outlining health risks and declaring that “the New York City Department of Health advises parents that direct oral suction should not be performed.”

Three mohels and Jewish organizations filed a federal lawsuit challenging the rule — the only curb on ritual circumcision ever enacted in the United States — arguing that it violates the First Amendment’s guarantees of freedom of religion and speech.

The lower court sided with the city, but the appeals court disagreed, concluding that the regulation “purposefully and exclusively targets a religious practice for special burdens.”

The city says that the regulation was adopted to prevent the transmission of herpes, a dangerous virus that can be deadly in newborns. While there are only a handful of cases of neonatal herpes in the city each year, and no precise statistics on the prevalence of metzitzah b’peh , the city asserts that the incidence of the virus among children whose circumcision includes the ritual is statistically higher than it should be.

All health concerns must be taken seriously, especially those involving infants. But the city’s case is weak.

To start, none of the experts the city relied upon were able to scientifically link any specific case of herpes to metzitzah b’peh . The expert affidavits that they submitted said only that it is “biologically plausible” that the virus can be transmitted through metzitzah b’peh , which, they assert, increases the risk of transmission.

Even more damaging is that the rule targets only the few infections that arise after circumcision, even though the vast majority of newborn herpes infections are linked to other factors.

As the court put it, the regulation “pertains to religious conduct associated with a small percentage of (herpes) infection cases among infants, while leaving secular conduct associated with a larger percentage of such infections unaddressed.”

By focusing solely on a small subset of babies’ herpes cases while ignoring all others, the city invites skepticism about whether it was truly driven by a desire to improve health — or just wanted to regulate religion.

It is revealing to compare the city’s approach to circumcision with its response during that very same year — 2012 — to a proposed regulation to require bicyclists to wear helmets. An average of 20 New York City bicyclists die each year from injuries sustained while cycling. Nevertheless, the city opposed helmet regulations that would have reduced such injuries. Why?

Because it believed that requiring helmets would send a message that bicycling is dangerous, which has the effect of discouraging biking. In other words, the city balanced the proposed helmet regulation’s benefits (fewer head injuries) against its costs (less biking) and decided it wasn’t worthwhile.

City bureaucrats apparently saw no such value when considering circumcision.

Which gets us to the most important point: How can any government assess the costs and benefits of practices such as a circumcision ritual, which are purely spiritual? And how can the city put a value on the desire of parents to raise their children in a particular religious tradition?

When the nanny state and the secular state converge, it is no surprise that government finds no value in religious ritual and no inclination to defer to parents. It offends equally both parental and religious rights.

As public advocate, Bill de Blasio criticized the adoption of this regulation — but he has yet to do anything about it as mayor. The court ruling gives him the perfect opportunity.

Instead of pursuing endless litigation, the city should now do what the rest of New York State tried several years ago: adopt a protocol that involves testing a mohel when herpes follows a circumcision with metzitzah b’peh , prompting treatment or even a ban from performing the practice if DNA testing links the virus to the mohel. All 57 New York counties outside of New York City previously endorsed this idea, as did religious leaders in the communities where metzitzah b’peh is most prevalent.

That would show respect for parental and First Amendment rights, and would demonstrate that the city is actually more interested in promoting the health of newborns than in prohibiting a religious ritual that has been practiced for millennia.

Schick is a partner at Dentons. From 1999 to 2009, he served in state government as a deputy attorney general and as president of the Empire State Development Corp.

(YWN World Headquarters – NYC)


10 COMMENTS

  1. “adopt a protocol that involves testing a mohel when herpes follows a circumcision with metzitzah b’peh”

    In other words, allow every mohel to pass on a dangerous disease to one child.

  2. #1- It might be easier now that the mayor is a goy. Secular Jews see our existence as a threat to their way of life since according to their haskafa we shouldn’t exist any more. Goyim are less up tight.

  3. “In other words, allow every mohel to pass on a dangerous disease to one child.”

    This has got to rank right up near the top of the outrageous charliehall comments ever to appear on ywn. The comment completely ignores the points raised in the article, specifically the one about the minute number of cases of herpes a year in ALL babies, and the small percentage of those that are linked to circumcision and specifically circumcision where metzitza was performed. But, in the charlie knows best world of thinking, the comment is right on target.

  4. “minute number of cases of herpes a year in ALL babies”

    One is too many.

    “small percentage of those that are linked to circumcision and specifically circumcision where metzitza was performed”

    Any percentage above zero is too many.

  5. If we would worry less about this disgusting unsanitary practice (which was banned by the chasam sofer) and worry more about the multitudes of yidden without parnassa or without sufficient parnassa, the frum world would be a lot happier of a place. FOCUS ON TUITION VOUCHERS AND TAX WRITEOFFS

  6. #6 to Reb Goy…it was not banned by the chasam soifer!!…(please quote where…!) By the way your kind of ….don’t care what the Chasam Soifer says. He faught,together with the gedoai hador, tooth and nail against your “enlightened” movement

  7. Charlie is allegedly a PhD???

    Whichever institution awarded it should rightfully strip him of his degree. His comments show that he is clearly unfit to be a PhD certainly with anything to do with public health or statistics. Forget about logic.

    It is people like him who think that ACA will lead to better , cheaper and more accessible health care. Even though logic and facts belie that. Two things which mean not a whit to him. Or his ilk.

  8. The key here is the phrase “biologically plausible.”

    By analogy, I own a 9mm handgun. Someone in my neighborhood gets shot with a 9mm bullet. It is “plausible” that I shot him. Therefore you run ballistic tests on the bullet and the gun to see if they match. If they do, you have a case. If they don’t (or if your don’t run the ballistic tests) then you have no case. Period.

    The same thing is true with infectious diseases: this is the science of epidemiology. Tests can determine exactly WHO infected someone. The majority of adults carry HSV-1 so it is “plausible” that the virus was transmitted by the mohel to the infected child. Therefore you run tests to determine if they match.

    There is not one single case where such tests were done matching the mohel’s HSV to the child’s HSV. Further, the DoH completely ignored other possible sources of transmission, including siblings and parents with active HSV!

    The ban on metzitzeh based on evidence this flimsy is just bad science, if not plain, old-fashioned fear mongering.

    Perhaps the real solution, rather than banning metzitzeh, would be to ban charliehall!