Wednesday, Feb 21, 2024

Appeals Court Rejects Stay-of-Enforcement Pending Appeal

The U.S. Court of Appeals for the Second Circuit ruled in a much-watched case involving government regulation of bris milah that has roiled the Orthodox Jewish community. A panel of judges denied the request by Jewish groups and mohalim to extend a stay that initially blocked enforcement of the New York City “consent” regulation. The regulation requires that before a mohel can perform metzitzah b'peh on an infant, the parents must acknowledge in writing that the practice carries serious health risks - a position rejected by vast numbers of Orthodox Jews and disputed by medical experts.

The appeal to the Second Circuit for an extension of the temporary stay grew out of a lawsuit against the City of New York filed by Jewish organizations and individual mohalim.
The plaintiffs, representing a broad spectrum of Torah Jewry, sought an injunction against the “consent” regulation, arguing that it violates First Amendment rights to freedom of religion and freedom of speech. Plaintiffs also requested a stay of enforcement while litigation was pending, to which the City initially agreed.


The lawsuit argued that the Department of Health has unconstitutionally targeted a religious practice boasting a millennia-long safety record, with no evidence to support its lurid allegations.


The lawsuit said the regulation compels mohalim to serve as the government’s mouthpiece in voicing statements 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 forces the parents to put their signature to scurrilous assertions that essentially accuse MBP of killing babies.




The City’s only study that professed to show evidence of elevated health risks linked to MBP in infants, turned out to be full of skewed data and incompetent research, and has been set aside by the court that heard oral arguments in the lawsuit.


Some of the City’s submissions to the court, in particular an affidavit from a leading expert witness, were shown to contain erroneous and false testimony. Assertions by Tom Farley, the N.Y. City Health Commissioner, purporting to show linkage between MBP and cases of neonatal herpes, were shown to contradict facts in the record.


Despite the shoddiness of the City’s case, a lower court sided with its position, and refused to issue the preliminary injunction against the regulation. District Judge Naomi Reice Buchwald also lifted the stay that had temporarily blocked the law’s implementation, forcing Jewish parents in New York City to choose between violating their conscience or violating the law of the land.


The plaintiffs, including the Satmar-affiliated CRC, Agudath Israel of America and the Chabad-affiliated International Bris Association, countered immediately by filing a notice of appeal with the Second Circuit. They also filed an emergency motion to extend the stay of enforcement until the outcome of the appeal. That is the motion being considered this week by the Second Circuit Court of Appeals.




Once the stay was lifted last month, the Department of Health escalated its aggressive campaign to ban mbp. It issued a communiqué 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 Jan 27 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 City’s zeal to ban mbp began revving up in earnest a few years ago, with DOH officials, backed by Mayor Bloomberg, swooping down on Jewish parents in rare cases where an infant who had been circumcised with mbp later came down with a herpes infection.


Ignoring evidence that pointed to the baby’s caregivers or family members as the source of the infection, the DOH arbitrarily chose to target the mohel, badgering parents for his identity and for information about the bris milah.


In a chilling echo of periods in history in other lands when Jews were hounded to inform on their brothers, Jewish parents harassed by the DOH to divulge the mohel’s identity have unanimously chosen silence.


When heavy-handed tactics such as opening a criminal investigation for “child endangerment” failed to crack that silence, the DOH passed an amendment designed to circumvent Jewish revulsion for mesirah, for informing on a fellow Jew. That amendment is the “consent” regulation.


With this new law on the books, no longer will authorities hit a brick wall in nailing down the mohel’s identity and information regarding whether he performed mbp.




The new law forces the mohel to act as the City’s stooge in incriminating both himself and the parents of the baby he circumcises. It compels him to warn the parents of the “dangers” of the practice he himself is about to perform on their infant and obtain their consent in writing.


The consent form names the parents as well as the mohel and confirms that he did mbp, despite the “risks” it allegedly poses.


Most damaging, the law obligates both the mohel and the parents to retain copies of these forms in the event of a DOH investigation. In an insidious twist, the consent regulation drives a wedge between mohalim and the Jewish community they service, by giving each side power over the other and putting each at the other’s mercy.


Imagine a scenario whereby the DOH discovers a case of neonatal herpes in a Jewish baby boy who had been circumcised with mbp. The authorities open an investigation, demanding the consent form from the parents. Suppose the law-abiding parents have signed such a form and have retained it in their possession. They are now plunged into a moral dilemma.


Should they surrender the form? That might embroil the mohel in a legal mess with health officials who automatically and irrationally view him as the source of herpes infection. Still, the law is the law, isn’t it?


Suppose the parents have lost or misplaced the form. No problem. Authorities can access the incriminating information they seek from the mohel, the likely culprit himself. All they need is his name.


Yet directing authorities to a law-abiding mohel who might then turn over the form, not only puts the mohel in the DOH’s crosshairs (re-igniting the parents’ moral dilemma), but opens up the possibility that the parents, too, can be implicated in their baby’s illness.


After all, these parents consented to mbp, knowing about the “dire risks” it allegedly poses. The mohel’s form contains that admission in writing, and he is now being asked to turn over that “smoking gun” to City authorities. The parents can’t claim they didn’t know mbp was being performed.


If G-d forbid their baby suffers brain damage or death as a result of the herpes infection, the law can hold them responsible for child endangerment. Judging from the tone and content of the DOH’s rhetoric against mbp, it is not a stretch to imagine authorities building a case of neglect against parents as a warning to the Jewish community.


The consent form the parents signed and that the mohel is expected to turn over to authorities can then become a powerful instrument of their own undoing.




Sowing distrust between mohalim, rabbonim and the grassroots Orthodox Jewish community seems to be precisely the DOH’s strategy.


In arguments to the court justifying the consent regulation, the City claimed it had received complaints from numerous Jewish parents who said they were unaware until after their baby’s bris that mpb had been performed, and insisted they would never have given their consent to the practice.


The rights of these parents are being trampled, the City argued, and the only way to prevent this brazen high-handedness is by requiring written consent forms.


The judge endorsed this rationale at the December 2012 hearing, staunchly defending the consent form as “the only way that the city can be certain that the parent is actually aware that the mohel will be utilizing mbp.


Buchwald cited alleged parental complaints that mbp had been performed as part of their baby’s circumcision and “they only found out about it afterward” – a claim that stretched the credulity of many observers.




Who are these phantom parents who have supposedly protested about mohelim allegedly sneaking in mbp behind the parents’ back? Critics say allegations made in the name of these unidentified parents have a hollow ring. Some have speculated that these “complaints” are a hoax to legitimize the City of New York’s unprecedented intrusion into religious practice.


If these complainants do exist, how many are there and what exactly have they said?


“One of the areas we will be exploring during discovery (the next stage of the litigation process before the district court) is the nature and number of purported complaints supposedly made to the DOH,” Mr. Yerachmiel Simins, counsel for the plaintiffs, told Yated. “That may include taking depositions of the complainants.”


If that happens, one of the City’s key arguments for encroaching on religious freedom – the need to protect parental rights from being violated – will be put under the microscope. The alleged victims – parents who complained to the DOH that the mohel performed mbp during their infant’s bris without their knowledge or consent – will be identified and questioned under oath.


If these parents do exist, we ought to know who they are. If they do not, that will tell the world what the DOH is.



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