A scientific perspective on ‘A New York circumcision controversy’

The Court of Appeals has reaffirmed that the First Amendment’s guarantee of a person’s right to free exercise of religion is entitled to the very highest level of constitutional protection.

September 9, 2014 21:53
3 minute read.
Circumcision in Europe.

A rabbi holds an eight-day-old baby during a circumcision ceremony in Brussels, August 20, 2009.. (photo credit: REUTERS)


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In September 2012, New York City passed a regulation declaring metzitza be peh (MBP), a part of many ritual circumcisions, illegal, unless the circumciser or mohel obtains a signed form from the parents, including: “I understand that direct oral suction will be performed... and that [the New York City Department of Health and Mental Hygiene] advises parents that direct oral suction should not be performed because it exposes an infant to the risk of... herpes (HSV)... infection, which may result in brain damage or death.” Since then, NYC has gone much further, banning several mohelim from the practice, even when a consent form was signed.

The constitutionality of this resolution has been challenged in federal court. A few weeks ago, the Second Circuit appellate court ruled with the plaintiffs, that the regulation “purposely and exclusively targets a religious practice for special burdens,” and that 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.” Under circumstances like these, where a religious practice is singled out for special regulation, the regulation must be subject to “strict scrutiny,” the most stringent standard of judicial review used by the courts. Among other requirements, this standard places the burden on the government to prove rigorously that the regulation is necessary to further a compelling interest, and that it is effectuated in a way that is least restrictive to religious freedom.

The Court of Appeals has thus reaffirmed that the First Amendment’s guarantee of a person’s right to free exercise of religion is entitled to the very highest level of constitutional protection.

In response to the ruling, Sam Sokol wrote, on these pages, an article entitled: “Analysis: New York circumcision controversy emblematic of longtime Orthodox ideological split,” advancing two positions: (a) “Contemporary medical knowledge” supports the assertion of a causal link between MBP and HSV infections, as stated by the Centers for Disease Control and Prevention and “several prominent contemporary decisors of Jewish law (poskim)” – specifically Rabbi Tendler, described as a son-in-law of Rabbi Feinstein, and Rabbi Slifkin, otherwise known as the Zoo Rabbi; (b) MBP is practiced by a fringe segment of the ultra-Orthodox.

As to the first position, MBP has never been proven to be related to, let alone a cause of HSV in newborn infants. That was our conclusion as pro bono and disinterested medical and statistical expert witnesses testifying in the above lawsuit.

(The same conclusions were reached by an Israeli government committee in a 2012 paper.) A 2013 University of Pennsylvania study, moreover, analyzed the relevant evidence and all the prevailing literature and concluded that: “This evidence base is significantly limited by a very small number of reported infections, most of which were not identified or documented systematically. Other important limitations include incomplete data about relevant elements of the cases, the presence of confounding factors, and indirect data sources.”

As to the single study claiming statistical evidence for an elevated risk among babies who underwent MBP, the Penn report noted that the study lacked scientific foundation: “this finding is limited by methodological challenges in determining the total population at risk, limited information about some of the cases, and the small number of infected infants.”

As to the second position, the notion that MBP is practiced only by a fringe segment of the ultra-Orthodox community, and one that opposes a rational approach to Judaism, this is factually incorrect. Far from a fringe practice, MBP is performed on the majority of Jewish boys born in NYC. This is based on a 2012 UJA study, reporting that over 60 percent of Jewish children born here are Orthodox and conservative estimates are that more than 80% of Orthodox circumcisions in NYC have MBP. (That percentage excludes the Sefardi community where MBP is practiced almost universally.) In the 3,500 years during which brit mila has been practiced, circumcision in general and MBP in particular have been attacked repeatedly. In the eighties, Rabbi Moshe Feinstein was pressured to permit substitutes for MBP, given the pervasive belief that the AIDS virus could be transmitted via this procedure. However, as described in Sefer Brit Avraham, this most authoritative halachic decisor in the US found the evidence entirely lacking: as with herpes, the arguments were confined to theoretical plausibilities. We now know that AIDS has never been transmitted through MBP.

Dr. Daniel Berman, Infectious Disease Specialist, Albert Einstein Hospital and Montefiore Medical Center.
Professor Brenda Breuer, Institute for Innovation in Palliative Care, Metropolitan Jewish Health Systems.
Professor Awi Federgruen, Charles E. Exley Professor of Management, Graduate, School of Business, Columbia University.

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