Last week a federal judge ruled that the New York City Department of Health can require mohelim to obtain parental consent before they perform circumcision involving the ritual of metzitzah b’peh (MBP). (Click here for the text of the decision in Central Rabbinical Congress v. NYC Dept. of Health)
MBP, as defined by the Court in this case, is a “practice among some observant Jews in which a ritual circumciser, or mohel,” places his mouth on the place of circumcision in order to draw blood away from the wound. (The halachic background behind MBP will be discussed briefly below, and at greater length in an upcoming post.)
The regulation at issue is § 181.21 of the New York City Health Code, which: defines “direct oral suction” as it relates to circumcision; requires that written parental consent be obtained before “direct oral suction” is performed during circumcision; and requires the person performing the circumcision to keep the consent form for at least one year.
Before the regulation took effect, several Jewish advocacy groups, along with some mohelim, sued the NYC Dept. of Health to prevent its enforcement. However, they were dealt a big setback last week when U.S. District Court Judge Naomi Reice Buchwald denied their request for a preliminary injunction.
Although there was much discussion regarding the validity of the scientific studies relied upon by the Dept. of Health, the plaintiffs’ legal arguments against the regulation were focused on First Amendment issues. They argued that (1) the regulation compels speech, and (2) it violates the rights of mohelim to the free exercise of their religion.
The plaintiffs first asserted that the regulation compels speech, in violation of the Free Speech Clause of the First Amendment, because it compels mohelim “to pass along the Department’s ‘advice’ against MBP.” The Court, however, ruled that “obtaining” parents’ informed consent does not necessarily mean that mohelim will need to communicate the alleged risks of MBP to the parents. Under the regulation, there is no obligation that a mohel provide a consent form to the parents, only that he obtain one from them.
Regarding religious freedom, the Court held that the regulation is neutral and generally applicable. The text of the regulation does not refer explicitly to religious practice, nor does it appear to be specifically aimed at suppressing religion. The Court therefore applied rational basis review, under which legislation is presumed valid if the burden imposed by the law is rationally related to a legitimate state interest. Here, the city has an interest in protecting children from the transmission of disease, as well as “safeguarding parents’ ability to care for their children through informed decisionmaking.” Clearly, concluded Judge Reice Buchwald, the regulation at issue is rationally related to these interests. It is intended to limit the spread of infectious disease amongst newborns, and it ensures that parents are given the opportunity to make informed decisions regarding MBP.
Although the Court’s denial of the preliminary injunction does not end this case, it does show that the judge thinks that the plaintiffs are unlikely to succeed upon the merits. It also allows the city to begin enforcing the regulation in dispute.
The Halachic Complexity of Metzitzah B’Peh
The practice of metzitzah is recorded in the mishnah and discussed in the gemara (see Shabbos 133). However, there are many questions raised by later authorities. These include:
- What is the purpose of metzitzah? Is it an integral part of the mitzvah of circumcision or does it only serve a medical purpose?
- Must metzitzah be done b’peh (by mouth) or can it be done with other instruments as well?
- What happens when there is medical evidence suggesting that there is a risk of spreading disease by performing MBP?
We will address these questions, as well as the historical background the MBP “controversy” in an upcoming post.