NEW YORK: Metzitzah: Court considers if consent form requirement needs strict scrutiny

Reuters
August 15, 2014

U.S. court revives challenge to New York City circumcision law

by Jonathan Stempel
NEW YORK (Reuters) - A federal appeals court on Friday revived an effort to block a New York City regulation that requires people who perform a Jewish circumcision ritual on infants that involves oral suction to first obtain parental consent.

A unanimous panel of the 2nd U.S. Circuit Court of Appeals said a trial judge had been too deferential to the city, which had linked the ritual to a deadly form of herpes, in rejecting a request by rabbinical groups for a preliminary injunction.

The three-judge panel directed U.S. District Judge Naomi Reice Buchwald in Manhattan to instead use "strict scrutiny" to see if the regulation infringed the plaintiffs' free exercise of religion, violating the First Amendment.

At issue was the ritual metzitzah b'peh (MBP), in which a mohel who performs a circumcision uses oral suction to draw blood away from a wound on an infant's penis. The procedure is sometimes performed in ultra-Orthodox communities.

In September 2012, the New York City Board of Health voted to require mohels to obtain advance consent in which parents acknowledged the risk of herpes infection linked to the ritual.
...

The Central Rabbinical Congress of the United States and Canada, the International Bris Association and some rabbis sought to halt enforcement, but Buchwald denied the request, saying the regulation addressed "legitimate societal concerns."

Circuit Judge Debra Ann Livingston, however, wrote for the 2nd Circuit that the regulation was not neutral toward religion because it "purposefully singles out religious conduct performed by a subset of Orthodox Jews," and applies exclusively to them.

As a result she said Buchwald should have not reviewed simply whether there was a rational basis for the regulation.

"The Department (of Health) may have legitimate reasons for addressing HSV infection risk among infants primarily, if not exclusively, by regulating MBP," Livingston wrote. "On the present record, however, the plaintiffs have made a sufficient case for strict scrutiny by establishing that the risk of transmission by reason of metzitzah b'peh has been singled out."

The 2nd Circuit did not rule on the regulation's constitutionality.

The city's law department had no comment on the decision.

In a joint statement, the plaintiffs called the decision a "great victory," and said they remain ready to work with city officials "to protect our children's health while fully respecting and accommodating our religious practice."

The case is Central Rabbinical Congress of the United States and Canada et al v. New York City Department of Health & Mental Hygiene et al, 2nd U.S. Circuit Court of Appeals, No. 13-107.

Earlier story

NEW YORK: Metzitzah: Federal court upholds consent form

They just don't give up, do they?

Jewish Daily Forward
February 22, 2013

Federal Court Refuses To Block New York Circumcision Consent Form Law

Rejects Metzitzah B'Peh Motion Filed by Orthodox Groups

by Seth Berkman

Proponents of metzitzah b’peh, the controversial circumcision ritual, were denied a request for an emergency stay in the enforcement of a recent New York City law that regulates the procedure. The decision was handed down by the United States Court of Appeals for the Second Circuit.

The motion, filed by the Central Rabbinical Congress of the USA & Canada, Agudath Israel, the International Bris Association and a group of rabbis, failed “to meet requisite standards,” according to the court.

...

Recent studies by the New York City DOHMH have revealed 12 area infants who have contracted herpes after circumcision, with two of the infants dying soon after.

NEW YORK: Metzitzah: Chasidim take offence at lottery ad

COLLive
February 7, 2013

Ad Uses Chassidim to Poke Fun

By COLlive reporter

A new commercial for the New York Lottery, using humor and exaggeration to portray what money can buy a lucky Powerball winner, might have pushed the line.

The TV spot, created by DDB New York ad agency, shows a man who has the perfect punch lines for any scenario, leaving people laughing hysterically wherever he goes.

In truth, the millionaire has employed a full-time team of comedy writers who feed him the jokes through an earpiece. He is "that kind of rich," the ad suggests.

One of the millionaire's punchlines is told to a group of Chassidic looking Jews seated in a deli.

"You're the herpetologist," the man tells them from a nearby eating booth, leading them to burst out in laughter.


A COLlive reader said it seemed like they were referring to the ongoing battle between the City of New York and the frum community over a custom of the bris milah (circumcision ceremony).

The City's Board of Health ["along with hundreds of the top infectious disease specialists and other public health specialists, including the US Centers for Disease Control and two major Israeli studies, one released in the past few days – but COLLive tells readers none of that" - thanks to Failed Messiah] says metzitzah b'peh (oral suction during the bris) can lead to fatal herpes infection. Rabbis and mohelim say there is no evidence to support that claim.

"This is no laughing matter and it's even frightening that the government is trying to regulate religious practice," Rabbi Levi Heber, the director of the International Bris Association, said in response to the Lottery commercial.

Speaking to COLlive, Heber said: "It's very unfortunate that people are not taking this matter seriously. The City's meddling in our rituals reminds many of Communist Russia. What's most ironic is that in Russia today Jews are more free to practice this mitzvah than in Brooklyn."

But what might be even more ironic is that the ad agency has mistakenly [or deliberately] used the term 'herpetologist' which is the occupation of a zoologist that specializes in reptiles, amphibians, crocodiles and turtles [and snakes, which one COLLive reader manages to extract further offence from, via the Yiddish word {schlange} for snake/penis.], with no connection to the herpes disease.

...

[What's distasteful and offensive is 1. cutting parts off babies' genitals, 2. sucking babies' {cut} genitals, and 3. passing off an informed consent form to sucking (but not to cutting) babies' genitals as a health-protection measure.]

NEW YORK: Metzitzah: Judge rules parental consent may be required

the New York Times
January 10, 2013

Consent Rule May Proceed for a Circumcision Ritual

by Sharon Otterman

New York City health officials may proceed temporarily with a plan to require parental consent before an infant may undergo a particular Jewish circumcision ritual, a federal judge ruled Thursday.


City officials say 12 cases of herpes simplex virus have likely resulted from the procedure, known as metzitzah b’peh, since 2000, including one Brooklyn case reported this week. Two infants died, and two suffered permanent brain damage. Most Jews no longer practice metzitzah b’peh, in which the circumciser uses his mouth to suck blood from the wound, but it remains common among some ultra-Orthodox communities.

Citing the risk of infection, health officials in September introduced a regulation that would require parents to provide written consent stating that they were aware of the health risks.

But the Central Rabbinical Congress of the United States and Canada, Agudath Israel of America, and the International Bris Association sued in October to stop the rule from taking effect, calling it an infringement of their constitutional rights. They also denied the procedure posed a risk and asked a federal court to put the rule on hold while the litigation proceeded.

In denying the request for a preliminary injunction, Judge Naomi Reice Buchwald of the United States District Court for the Southern District wrote that the risks were clear.

“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,” she wrote.

City lawyers said they were gratified by the ruling, but Andrew Moesel, a spokesman for the plaintiffs, said the groups would appeal. “We continue to believe that this case is a wrongful and unnecessary intrusion into the rights of freedom of religion and speech,” he said.

Earlier story