By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
The New York City Health Department recently placed a restrictive regulation on the religious tradition, requiring parents to provide actual consent prior to the performance of a particular type of circumcision that is common in the ultra-Orthodox community, and a Manhattan judge agreed.
A bris is a Jewish religious ceremony in which a male child is circumcised, on the eighth day of his birth, by a mohel, or ritual circumciser. During one variant of bris performed mainly in among Hasidim and the very Orthodox, known as “metzitzah b’peh,” the moehl performs direct oral suction of the infant’s penis to stop the flow of blood after the circumcision itself.
This practice has lead to some serious health concerns. Over the last several years, the Health Department learned of 11 cases of neo-natal herpes simplex viral infection in the weeks following circumcision due to direct oral suction; 10 newborns were hospitalized and two died.
To combat these grave health risks, Health Code 181.21 was issued requiring those performing this practice to obtain the written consent of the infant’s parent or guardian prior to performing the circumcision. The purpose of Health Code § 181.21 is to educate parents about the risks associated with direct oral suction, so that parents can make an informed decision about whether it should be performed as part of the circumcision.
In October 2012, before the rule took effect, the Central Rabbinical Congress of the USA & Canada (a consortium of Orthodox groups led by Williamsburg’s Satmar Hasidim), Agudath Israel of America, and the International Bris Association, along with individuals who perform ritual circumcisions in New York City, commenced a federal lawsuit against the Department of Health challenging the constitutionality of Health Code § 181.21.
Specifically, the plaintiffs claimed that their First Amendment rights guaranteed by the Free Exercise Clause of the United States Constitution prohibited the new law and that the law violated their free speech rights under the First Amendment by compelling speech.
While preparing for their federal lawsuit, both parties, the Department of Health and the Bris Association, agreed to temporarily halt the enforcement of rule 181.21.
On Thursday, Jan. 10, Federal Judge Naomi Reice Buchwald lifted this temporary stay, and allowed the city to enforce the health rule while the First Amendment case continued.
“Based on the records presently before us, we conclude that [the] plaintiffs are not likely to succeed on the merits of any of their claims. Additionally, 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, " Hon. Buchwald ruled.
The city is satisfied with this ruling. "We are gratified the Court is allowing this significant public health rule to proceed unimpeded. Informing parents about the grave risks associated with this procedure is critical to safeguarding infants' health. As the Court recognized, the City carefully balanced the plaintiffs' religious rights with important public health concerns surrounding direct oral suction during circumcision," said Michelle Goldberg-Cahn, senior counsel, Administrative Law Division, NYC Law Department.