NEW YORK- A Federal appeals court has marked a New York law regulating a controversial circumcision practice as potentially unconstitutional in a case hailed by the ultra-Orthodox community as a “great victory.”
Handed down on Friday, the decision by the Second Circuit Court of Appeals requires a lower court to apply “strict scrutiny” to the legality of a New York City health ordinance requiring express parental consent before the practice of oral suction of a circumcision incision.
The practice, known as metzitzah b’peh in Hebrew, is a source of controversy within the orthodox community, with more modern elements rejecting the ancient practice which in turn is embraced by the more conservative ultra-Orthodox factions. Initially imposed as a safety measure by early Talmudic sages, researchers have linked it to the spread of Herpes.
According to the Centers for Disease Control and Prevention, infants who undergo metzitza “had an estimated risk 3.4 times greater than the risk for HSV-1 or untyped HSV infection among male infants unlikely to have had direct orogenital suction.”
In 2012 one senior New York health official was quoted by The New York Times
as asserting Herpes was “somewhat inevitable to occur as long as this practice continues, if at a very low rate.”
The New York Health Department currently requires ritual circumcisers, or mohelim, to inform parents of the potential risks of metzitzah b’peh and to obtain written permission in order for the procedure to be carried out.
According to court documents, the form warns that “the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed.”
In response, a consortium of ultra-Orthodox groups pursued litigation against the city, asserting that the informed consent rule was a violation of the first amendment in that it compelled speech in violation of the first amendment and that it was a violation of religious liberties.
Following the court’s rejection of a petition for a preliminary injunction, the groups appealed and last week a higher court vacated the previous decision and ordered the case remanded for further proceedings. A request for a temporary stay of enforcement of the New York regulation was denied.
“The district court held that the ordinance does not compel speech and is subject to rational basis review under the Free Exercise Clause, and proceeded to deny a preliminary injunction. We hold that the challenged ordinance is neither neutral nor generally applicable and thus is subject to strict scrutiny under the Free Exercise Clause,” the federal appeals court ruled.
In her ruling, circuit judge Debra Ann Livingston explained that the Regulation is “not neutral because it purposefully and exclusively targets a religious practice for special burdens” and that it is not generally applicable because it “pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.”
While health authorities have linked a number of cases of Herpes transmission to the practice, asserting a higher level of risk for those undergoing suction, the ultra-orthodox community has countered that metzitzah b’peh has been safely practiced for thousands of years without issue. They argued, according to court records, that health authorities failed to “show even a statistical correlation between metzitzah b’peh and HSV infection.”
Several prominent contemporary decisors of Jewish law, such as Rabbi Dr. Moshe Tendler – son-in-law of late American ultra-orthodox leader Rabbi Moshe Feinstein - have called for the traditional method of suction to be shelved due to contemporary medical knowledge.
“The rule that’s above all rules in the Torah is that you cannot expose or accept a risk to health unless there is true justification for it,” Tendler told The New York Times
Some orthodox opponents of traditional metzitzah utilize sterile glass or plastic pipets to prevent the transmission of germs.
The ultra-Orthodox community treated Friday’s court decision as a major victory, with Agudath Israel of America, one of the plaintiffs in the case, issuing a statement calling the ruling a “great victory.”
“The Court of Appeals has thus reaffirmed that the First Amendment's guaranty of a person's right to free exercise of religion is entitled to the very highest level of constitutional protection,” the Jewish organization stated, adding that it was “hopeful that the regulation will either be withdrawn at this time or declared unconstitutional in any further court proceedings.”
“We will continue to do all in our power to ensure that mohalim continue to adhere to the highest standards of safety and hygiene in carrying out their religious mission, and we reiterate our longstanding readiness to work together with health officials to protect our children's health while fully respecting and accommodating our religious practice.”