The ritual of bris milah, or circumcision, is one of the most basic, most important, and most widely practiced Jewish traditions. For thousands of years, Jews have faithfully adhered to the commandment to circumcise every male child on the eighth day after his birth. Now, acting on the basis of sparse and deficient research, and in the midst of ongoing medical debate, the defendants (collectively, “the Department”)—have targeted one critical aspect of the bris milah,
known as metzitzah b’peh (“MBP”), and are attempting to conscript mohelim, who perform this sacred act, into advocates for the Department’s ill-founded opposition to the practice.
MBP involves the use of oral suction by the mohel (the individual who performs the circumcision) to draw blood from the wound, and many prominent rabbinic authorities maintain that MBP is the proper, or even the only acceptable, way to complete the circumcision under Jewish law. MBP has been performed safely for millennia. Yet, under a new regulation, the Department will force mohelim to convey the Department’s “advice” that MBP, a religiously mandated ritual practice, “should not be performed,” because it allegedly “exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.” The parent would then be required to record his or her consent to the procedure. This regulation tramples on constitutional rights, including those of the plaintiffs here, in two ways.
First, by compelling mohelim to transmit to parents the Department’s subjective, valueladen opinion that MBP “should not be performed,” the regulation violates freedom of speech. Basic First Amendment principles hold that the government cannot force speech any more than it can proscribe speech. If the Department wants to speak to the public, it may do so directly—but not by requiring those who disagree with the message to transmit it on the Department’s behalf. Although purely factual and uncontroversial disclosures may permissibly be compelled in the context of a commercial transaction or exercise of a licensed profession, it would be a novel and substantial offense against the First Amendment to require such warnings in the context of a religious ritual. In any event, the message compelled by the Department’s new regulation fails the minimal requirements that courts have imposed upon disclosures even in such less protected settings—namely, that they be “purely factual” and “uncontroversial.” The message is not a fact at all, but rather a piece of advice—that MBP “should not be performed” because its purported health risks outweigh, in the Department’s view, its religious necessity. And the alleged risks are hardly “uncontroversial.” To the contrary, the Department’s concerns are premised on limited study, dubious assumptions, and tiny sample sizes—and remain actively disputed by doctors.
Second, by singling out an exclusively religious ritual for unique burdens, the regulation violates the Free Exercise Clauses of the First Amendment and the New York Constitution. The Department has not imposed neutral, generally applicable rules to prevent transmission of the herpes virus, or to limit all oral contact with newborns. Rather, it has targeted MBP, and MBP alone—a practice that nobody engages in other than out of religious motivations—for a special regulatory regime. That regime requires mohelim to advise against their own religious beliefs and obtain a special, written consent that the Department has not required for any other practice, notwithstanding the numerous risks—large and small—to which we expose ourselves (and our children) daily. Under federal Free Exercise jurisprudence, such a regulation could be sustained only on the most compelling showing—a showing that the current inconclusive and (at best) debatable data do not begin to satisfy. Indeed, even accepting the Department’s assumptions and conclusions at face value, the regulation’s effect on transmission of herpes is entirely unproven, and likely marginal at best, given that those who believe that MBP is a divine commandment are very unlikely to be swayed by unsolicited advice from municipal bureaucrats. The regulation therefore cannot even survive the balancing test applicable under New York’s Constitution. If the Department’s regulation is permitted to take effect, mohelim across New York City will suffer irreparable injury. Infringement on First Amendment rights cannot, as courts have uniformly recognized, be remedied after-the-fact. Accordingly, this Court should issue a preliminary injunction suspending enforcement of the regulation during this litigation.
To be clear, Judaism places the highest premium on protection of human life, especially the life of children. Any chance that a religious practice endangers children’s safety deserves careful and thorough study. But the Department has not undertaken that study. Instead, it has rushed to regulation on the basis of literally a handful of alleged cases over a period of years—a small fraction of the total number of reported cases of neonatal herpes—none of which has been definitively traced to MBP, and which even when taken together do not establish any statistically significant association between MBP and herpes, much less a causal link. In short, neither the law nor the facts justify the Department’s unprecedented and unconstitutional regulation.
A. One of the essential steps of the bris milah ritual is metzitzah, during which suction is used to draw blood from the area around the wound. See Babylonian Talmud, Tractate Shabbat, at 133b. Traditionally, metzitzah is performed using direct oral suction, in a technique known as metzitzah b’peh (“MBP”). Mohelim, the individuals who perform ritual circumcisions, are carefully trained to ensure that the practice is performed in a safe manner. Among other precautions, mohelim do not perform circumcisions if they are exhibiting any symptoms of the herpes simplex virus (“HSV”), such as cold sores; they minimize the duration of the oral-genital contact, so that it lasts only approximately one second; and they generally precede the procedure by rinsing their mouths with an antiseptic, which in the case of mouthwash has been shown to kill the herpes virus in saliva.
B. In June 2012, the Department issued a notice of public hearing to address a proposed amendment to Article 181 of the New York City Health Code. The proposal called for a new § 181.21, which — according to the its statement of basis and purpose—was designed to target the “practice known as metzitzah b’peh.”. In the media, the Department described the regulation as an effort to “regulat[e] how part of a religious procedure is done.” Sharon Otterman, City Urges Requiring Consent for Jewish Rite, N.Y. TIMES, June 12, 2012, at A23. After public comment and hearing, the Board of Health voted in September 2012 to adopt a revised version of the proposal. As adopted, the regulation compels mohelim to inform parents that “the [Department] advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.” The parent must then provide “written signed and dated consent,” which must be retained for one year. READ MORE