The New York Times
December 18, 2012
Lawyer Says Ritual Circumcision Is Protected Activity
by Russ Buettner
A lawyer for Orthodox Jewish groups asked a federal judge on Tuesday to throw out a New York City regulation requiring parents to sign a consent form before their infant sons undergo a form of Jewish ritual circumcision in which the circumciser uses his mouth to remove blood from the incision.
The lawyer, Shay Dvoretzky, said the practice, which is prevalent in parts of the ultra-Orthodox community, is a constitutionally protected religious activity. He said that requiring ritual circumcisers, known collectively as mohelim, to be involved in conveying the city’s perspective on the procedure would infringe upon their rights of free speech.
“That lies at the heart of First Amendment protection,” Mr. Dvoretzky said.
But a lawyer for the city argued that the regulation was necessary and that the practice most likely caused 11 herpes infections in infants between 2004 and 2011. Two of the infected babies died; at least two others suffered brain damage.
“The health department is not looking at the religion in determining what to do about this conduct,” said Michelle L. Goldberg-Cahn, a lawyer for the city. “The city is looking at the conduct.”
The Orthodox groups, including Agudath Israel of America and the Central Rabbinical Congress, sued the city in October to block the regulation, which was approved by the New York City Board of Health in September but is suspended until a ruling is issued in this case. The groups say that the procedure is safe and that the city has not definitively linked infections to the practice.
Infectious disease experts, several of whom filed briefs in support of the regulation, widely agree that the oral contact, known in Hebrew as metzitzah b’peh, creates a risk of transmission of herpes that can be deadly to infants because of their underdeveloped immune systems.
On Tuesday, Judge Naomi Reice Buchwald, of Federal District Court in Manhattan, heard oral arguments in the case, one that pits the sanctity of ancient religious rituals against the rigors of both modern medicine and secular government regulation [but not, so far, human rights]. She said her decision would come within a few weeks.
Her sharpest inquiries were directed at Mr. Dvoretzky, the lawyer for the Orthodox groups.
She raised a hypothetical situation in which a single religious group amputates left pinkie fingers at birth, and asked Mr. Dvoretzky whether the city would have the authority to regulate the activity. He said it would depend upon whether the practice caused immediate, serious harm. [Does anyone seriously argue that it wouldn't?]
Judge Buchwald also said there was a direct comparison to consent requirements placed on physicians when they perform a circumcision.
Mr. Dvoretzky called that an “apples and oranges” comparison, because a physician would not perform a metzitzah b’peh.
“Wait a second,” Judge Buchwald interrupted. “They can’t perform any circumcision without consent. It’s a surgery.” [She's on the brink of Getting It. Whose consent, when it is unnecessary surgery.]
Mr. Dvoretzky said the city should undertake a broad education campaign, to prevent all infant herpes infections.
But Judge Buchwald said such a campaign would have little impact, because the risk of infections is medically well-known.