Guestview: NYC circumcision rite consent rule tests limits of religious freedom
The following is a guest contribution. Reuters is not responsible for the content and the views expressed are the authors’ alone. Eliyahu Federman is a Miami-based executive with theological and legal training who has written on religion, culture and law at the Huffington Post, The Forward, USA Today and elsewhere.
by Eliyahu Federman
Parents can refuse to vaccinate their children on the basis of religious beliefs or other values, even if studies show they are exposing children to increased health risks. But the state should be allowed to require that parents acknowledge the risks associated with not vaccinating.
This balance between religious freedom and parental rights and the state’s responsibility to ensure public health and safety — especially when it comes to protecting infants — is being waged between Hasidic Jews and the City of New York over an informed consent requirement for an ancient circumcision rite. The battle pits religious freedom and parental rights against the states interest to inform the public of health and safety concerns.
Metzitzah b’peh (MBP) is an ancient religious practice whereby a trained rabbi, called a mohel, completes a circumcision by orally sucking out the blood from a baby’s penis wound. Hasidic groups often perform this ritual through mouth contact, whereas Modern Orthodox Jews use indirect suction, through a sterile tube or sponge, to reduce the risk of infection.
According to various studies there have been several infant deaths linked to herpes simplex virus and other infections transmitted through oral MBP. New York City responded by passing a measure that requires an infant’s parent or guardian sign a form acknowledging the Department of Health and Mental Hygiene’s (DOHMH) recommendation against the practice, and acknowledging the practices increased infection risks.
Several Jewish religious organizations have sued the city, arguing that a consent form infringes on their freedom of religion by singling out this one religious practice, and that it unconstitutionally compels speech by requiring that the mohel present a consent form that recommends against a practice they deem mandated by religion. The lawsuit also questions the validity of the research demonstrating the risks of the practice.
The city maintains that the regulation is permissible because it does not ban the practice, but merely requires informed consent. The lawyer representing the American Academy of Pediatrics and other medical organizations in favor of the legislation, argued in the Jewish Press that, “[N]ot only does it not infringe on the religious liberties … it actually protects the religious liberties of parents by ensuring that they make the decision whether MBP – a religious act – is performed on their child.” The case is pending before the U.S. Court of Appeals for the Second Circuit, which is located in Lower Manhattan.
Echoing the notion that the regulation infringes on religious freedom and practices, Councilman David G. Greenfield recently introduced a bill to prevent the DOHMH from enforcing the regulation. It’s doubtful this bill will pass considering that the NY Board of Health voted 9-0 in favor of the consent regulation and a federal judge has already denied a request for a preliminary injunction against the regulation.
Modern Orthodox Jews have mostly abandoned direct MBP, accepting a view of the Talmud and medieval Torah scholar-physician Maimonides that MBP was only practiced because it was believed to protect the health of an infant through what was once thought to be a hygienic medical practice. But because today’s mainstream medical community recommends safe antiseptic and antibiotic techniques to assist the healing process and stop the bleeding, they believe that there is no need to perform direct MBP.
However, many Hasidic Jews believe that this practice was not simply ancient medicine. The 17th century Kabbalist R’ Avraham Azulei relates MBP to the sin of Adam in the Garden of Eden. The mouth that ate the fruit in the garden brought sin into the world and therefore must be used to perfect the human body during the circumcision, he says. SO to accomplish this, the mouth must come in direct contact with the wound. Because of this and other mystical reasons, some Hasidic Jews consider direct MBP to be required under Jewish law.
Even though some in the Orthodox Jewish community argue that it is inconclusive that babies died from herpes transmitted through this ritual, it is still prudent to be aware of the medical advice of the American Academy of Pediatrics, the Center for Disease Control, New York’s DOHMH and others that warn of the risks. No harm could come from additional medical knowledge. The Hasidic community should welcome this information and make their choices accordingly.
The city must also be mindful of religious freedoms. Requiring religious people to sign a form that explicitly recommends against the procedure is overreaching because it does not neutrally inform parents of the risks, but it also attempts to dissuade people from performing the procedure.
Warnings on tobacco product, for example, can include statements that smoking is not recommended. But activities like smoking don’t implicate religious practices like MBP. The solution is to require that parents’ acknowledge and are aware of the increased infection risks of MBP but not require them to sign the clause that explicitly recommends against it.
MBP is not the only area where some Hasidic groups are not taking advantage of modern medical information. Recently there have been several outbreaks of generally controlled diseases such as measles and mumps, afflicting unvaccinated children in these communities. The reluctance to be informed on the advances of modern medicine may also be reflected in the opposition to informed consent with MBP.
The solution is to require a consent form that clearly describes the increased infection risks of the procedure, while not explicitly recommending against it. Such a consent form will help Hasidic communities embrace medical knowledge by understanding the health risks associated with practices like MBP so they can make better-educated decisions for the health and welfare of their families without feeling that their religious liberties are being trampled.