A district court in January had denied the plaintiffs’ motion for a preliminary injunction against the consent law. That decision, by Judge Naomi Reice Buchwald, is now being appealed to the Second Circuit Court of Appeals.
The appeal, argued by Jones Day attorneys Shay Dvoretzky and Yaakov Roth, assisted by attorney Yerachmiel Simins, argues, first, that the Department of Health has unconstitutionally targeted a religious practice, without credible evidence to support its allegations that mbp is in any way dangerous to babies.
With only the shabbiest of research to back up its charges, the government’s intrusion on religious observance is unjustified and unlawful, the appeal argues.
The appeal brief highlighted the consent law’s discriminatory nature, noting that over the 5-year period from which the City drew statistics on neonatal herpes, they identified 84 cases, only 5 of which they even suggest are possibly connected to mbp.” [The other cases resulted from childbirth complications – by far the most frequent source of neonatal herpes – and other sources of infection.]
The fact that the City has not tried in any way to address the other 79 cases, in terms of trying to diminish the risk factors and prevent illness, but has focused only on the 5 they believe to be associated with mbp, proves that this regulation specifically and unlawfully targets religion, the brief stressed.
Moreover, the City’s persistent refusal to undertake conclusive DNA testing, the gold standard for identifying the source of a herpes virus, fatally undermines its claims, the brief argues. It thus places these claims in the category of what can only be called pseudo-science or glorified guesswork.
The appeal brief attacked the regulation from a second angle: that it violates the constitutional rights to freedom of speech by compelling mohalim to serve as the government’s mouthpiece in communicating information they reject as lies. It forces them to transmit advice to Jewish parents to boycott a practice sacred to millions of Jews throughout history.
At the same time, it compels speech by forcing mohalim to put their signature to assertions they find abhorrent that essentially accuse MBP of killing babies.
GLORIFIED GUESSWORK IN THE GUISE OF SCIENCE
In the absence of firm scientific evidence and peer-reviewed studies, the City leans heavily on the testimony of what Judge Buchwald called a “staggering array of experts.” Yet some of the City’s submissions to the court have been shown to contain false testimony and glaring inconsistencies.
Assertions by Tom Farley, the N.Y. City Health Commissioner, purporting to show linkage between mbp and cases of neonatal herpes, turned out to sharply contradict facts in the record.
Farley’s truth-twisting to create a link where none exists is on display in several places in court papers, detailed in the Simins affidavit. As one example, his statements regarding the case of a baby who died of herpes in September 2001 clashes with both the mother’s testimony about vital facts in her baby’s illness, as well as facts in the hospital record.
Most disturbingly, the affidavit of a world class infectious diseases expert, Dr. Richard Whitley, was shown to contain false testimony.
The affidavit began with a listing of titles, honors and achievements that ran on for two pages. Dr. Whitley of Alabama then went on to attack an Orthodox Jewish delegation, who in 2006 had sought his professional advice for protecting the practice of mbp. He claimed the delegation falsified his statements to serve their own purposes.
Yet the evidence – on graphic display in a letter of response penned by Dr. Whitley, who had either forgotten about it or hoped the delegation had forgotten – showed conclusively that it was the doctor himself who was trying to rewrite history.
The letter contains the doctor’s supportive endorsement of the delegation’s efforts and totally discredits his present day testimony. His affidavit to the court, replete with character assault against respected members of the delegation and denial of facts on record, is a study in witness unreliability – if not outright duplicity.
CAN THE WHOLE WORLD BE WRONG?
The district court judge argued that the medical establishment as a whole, including world-renowned experts, support the City’s position. All agree, Judge Buchwald said, that “it’s incontrovertible that MBP increases the risk that a neonate will acquire herpes and other diseases.”
She cited amicus briefs filed by four respected medical groups, as well as affidavits signed by top professionals in various scientific and medical fields, all putting their weight behind this assertion.
Can the whole world be wrong?
The answer of course is yes, the world has been wrong many times about many things. History is strewn with humanity’s discarded illusions and abandoned dogmas. In our particular case, fueling the mass delusion about mbp is a medical establishment that, for its own reasons, has gone out on a limb to support the DOH’s stance, despite its total lack of scientific foundation.
The City has had no trouble lining up an array of establishment experts who are prepared to swallow their professional pride and lend their esteem to shabby theories dressed up as “evidence.”
REVISITING DR. RICHARD WHITLEY
Let us return to the above noted affidavit of Dr. Whitley as an example of a leading expert whose mantle of scientific authority has been used to prop up the City’s unfounded assertions. Whitley’s sworn affidavit was filed with the City’s submissions in the bris milah lawsuit.
Reported in these pages a number of months ago, the strange story bears re-telling, in light of the renewed City-orchestrated attacks on mbp.
A renowned infectious diseases expert, Whitley first entered the mbp odyssey in 2006, when a delegation from New York, consisting of Rabbi Niederman from the CRC (Satmar), CRC’s legal counsel Mr. Yerachmiel Simins, Dr. Alan Werzberger and Dr. Stuart Ditchik traveled to Alabama to visit him.
The delegation’s visit was part of an active effort by concerned members of the Orthodox Jewish community to counter the DOH’s mounting campaign against mbp and harassment of mohalim.
In his affidavit to the court, Whitley said he received the delegation at his office at the University of Alabama. Whitley said he told his visitors “in no uncertain terms that in his medical opinion, there was a definite link between mbp and neonatal herpes” and that “they should take measures so that direct oral suction should not be performed.”
Whitley’s affidavit says that in 2012, he came across a letter from Dr. Alan Werzberger on behalf of the delegation that he had received after their visit six years earlier, but had “placed in his file without reading it.”
Reading it for the first time in preparation for his affidavit, Whitley writes, he was “appalled at the gross mischaracterizations” in the letter. Essentially calling Dr. Werzberger a liar, he writes that “the delegation willfully misinterpreted what I said to serve their own purposes.”
Whitley disputes that he advised the delegation about certain precautions the mohel could take (in cases where the DOH suspects him of being the source) to make certain he is herpes-free so that he can practice mbp without raising concerns.
A RADICALLY DIFFERENT PICTURE
Now let’s look at Dr. Werzberger’s affidavit to the court describing that same visit.
“I was one of the members of the Orthodox community who traveled to Alabama in March 2006 to meet with Dr. Richard Whitley,” the Werzberger affidavit states. “We met with Dr. Whitley in an attempt to learn more about the disease and the theory being aggressively pursued by the DOH regarding its transmission via [MBP] during circumcision.”
Werzberger says the meeting was “helpful, and the tone was warm and friendly.”
For whatever reason, he writes, “Dr. Whitley in his affidavit now claims that a letter I sent to him summarizing the meeting contained ‘gross mischaracterizations’ of everything he had discussed with our delegation. He alleges that I ‘willfully misinterpreted what he said in order to serve [my] own purposes.’ Dr. Whitley says that he hadn’t previously reviewed the letter, which is why he had not earlier rebutted these mischaracterizations.”
Werzberger goes on to challenge Whitley’s claim that he had never read the letter at the time he received it, and that it grossly distorted his statements to the delegation.
“In fact, Dr. Whitley responded to my letter by email, the day after I sent it,” Werzberger writes.
Not only that, but Whitley responded point by point to Werzberger’s summary of the meeting, Werzberger says, “in large part agreeing with my characterizations of what he said, including those that he now says were gross mischaracterizations.”
WHO CAN WE BELIEVE?
Who is telling the truth? Whitley, who claims in a scathing affidavit that he castigated the practice of MBP to the delegation, and urged them to take measures to halt it?
Or Werzberger, who says that Whitley was helpful in navigating a path that would satisfy the DOH’s concerns while enabling mohelim to continue practicing MBP without harassment?
Who can we believe? Whitley, who “affirms under penalty of perjury” that he never read Werzberger’s letter, much less responded to it? Or Werzberger, who says not only did Whitley respond to it, he agreed in large part with its summarization of the meeting?
A jury might be hard pressed to determine the truth in the face of these clashing accounts. But no jury is needed here, because a piece of evidence surfaced that sets the record straight beyond dispute.
That evidence is Dr. Whitley’s emailed response to Dr. Werzberger’s letter, whose existence Whitley either forgot or for some reason chose to deny in his affidavit. It was retrieved from the delegations’ files and filed in court with the Werzberger affidavit. There it is, frozen in time, dated Friday, March 4, 2006, 11:14 a.m. and fully corroborating Dr. Werzberger’s testimony.
Just as Dr. Werzberger testified in his affidavit, Whitley agreed with the bulk of his point-by-point summary of the meeting, including the points that he later called “gross mischaracterizations.”
Just as Dr. Werzberger testified, the meeting was helpful in navigating a medical and scientific “form of risk reduction [for mohalim being harassed by the DOH for allegedly transmitting herpes] by having them take a daily dose of famiclovir or other similar anti-viral.”
Dr. Werzberger had opened his letter to Dr. Whitley on a warm note of thanks and the hope that they would continue working together.
“Again, on behalf of our group, please accept this heartfelt expression of gratitude,” begins Werzberger’s letter [with Whitley inserting his responses paragraph by paragraph]. “Your sacrifice of precious time and thoughtfulness for us has truly touched our hearts; we will be forever grateful. We are very excited at the prospect of working with you in the near future.”
Had Whitley actually told the group that in his view, MBP posed grave dangers to newborns and urged them to take measures to end the practice, why would these activists, who fervently believed just the opposite and were working to prove the safety of the practice, be excited about working with him any further?
Why did Whitley abdicate his earlier views and switch from being a sympathetic ally to representatives of the Jewish community seeking to protect the practice of MBP, to a scathing, scornful critic?
Did he simply forget what he once believed about the subject? Did he simply forget about the entire matter of his correspondence with Dr. Werzberger?
REVVING UP THE SMEAR CAMPAIGN
“You’ll hire your experts and I’ll hire mine,” Mayor Bloomberg told Jewish leaders when negotiations broke down over the consent law last October, and a court battle seemed inevitable.
Today, we hear those experts being quoted in media reports and talk shows, as the DOH churns out health alerts over two recent cases of neonatal herpes – occurring over the past 4 months – that the DOH is trying to link to mbp.
Once the stay was lifted last month, the Department of Health escalated its campaign to ban mbp, and the health alerts about the so-called dangers of mbp are part of this campaign. [Tellingly, there are no parallel health alerts over other recent cases of herpes that the DOH finds impossible to link to mbp.]
The DOH has also issued a communiquÃ© to health care providers throughout New York City, urging them to assist the City in implementing the consent regulation.
“Because you are likely to have contact with new parents before they arrange circumcision for their sons,” the DOH letter to doctors says, “you are uniquely poised to make parents aware both of the risk for herpes transmission that [mbp] poses, and of the fact that they must consent prior to [its] performance.”
The smear campaign is in full throttle, with talk show hosts and media pundits demonizing mbp as a terrible scourge to society.
In the face of this continuing libel flooding the airways and print media, a very real threat to religious freedom is gaining insidious ground. Will the appeal’s masterful reality check and cogent, hard-hitting arguments reverse this dangerous trend? Time – and the Second Circuit – will soon tell.