Thursday, May 16, 2024

Arguments in Bris Milah Lawsuit Set For Chanukah

The battle over mbp and “informed consent” - the New York City law requiring parents to sign a consent form before having the circumcision ritual performed - is approaching a critical crossroads. On December 12, a federal judge will hear oral arguments from a coalition of Jewish organizations seeking a preliminary injunction against the law passed by NYC Board of Health in October.

The timing of the hearing – the fourth day of Chanukah – carries echoes of the centuries-ago Chashmonaim war with the Greeks over the right to uphold the Torah. Today as then, the freedom to practice bris milah is under attack, albeit in a radically different guise.  

In an eerie parallel to that ancient epoch when Hellenized Jews in high office led the assault against tradition, today’s leading nemesis – the mayor of New York – is also an estranged Jew carried away by political power and his scorn for his co-religionists.


Citing humanitarian grounds, Mayor Bloomberg has openly declared his intention to wipe out the practice of mbp. He has publicly heaped scorn on Orthodox Jews and disdained their pleas that he work together with the Orthodox community.


In the upcoming court hearing, Judge Naomi Reice Buchwald, a district court judge in the Southern District of New York, is being asked by Jewish groups to issue a preliminary injunction against the mayor’s “consent” rule on the grounds that it violates the rights to freedom of religion and freedom of speech.


The coalition of Jewish plaintiffs is also petitioning her to extend a temporary stay of the new law for as long as the litigation is pending – which could be a matter of months.  




The coalition’s brief lays out the case in a set of powerful arguments that challenge the constitutional legality of the “consent” law, and leave in tatters the City’s bogus claims about the risks associated with mbp.


The City contends that the injunction, while it may interfere with religious practice, is necessary to protect the health of infants. Using a widely debunked study that experts say is riddled with speculation and falsehood, Department of Health officials insist that mbp elevates the risk of HSV (herpes) infection.


The informed consent rule, health officials say, is merely a tool to “educate” parents about the supposed health hazards associated with the practice.


While many have been lulled into believing this, and fail to see any danger in “informed consent,” excerpts from the minutes of a June NYC Board of Health meeting that discussed the proposed rule, dispel that illusion.




Those minutes, now on file with the government’s opposition brief as Exhibit A, lift the veil on an insidious strategy by City officials to drive a wedge between rabbinic leaders and the general population, including their own constituency.


As will be seen below in the actual minutes of the fateful Board meeting, excerpted from pages 24-27, the discussion was over the proposal of Health Commissioner Tom Farley that the City, instead of pursuing indirect methods of halting MBP, “just prohibit the procedure.”


Why not simply outlaw metzitzah b’peh, he urges.


Board of Health members explain to Farley that the goal is to uproot mbp by getting people to turn against the practice themselves, rather than run into legal quagmires by messing around with constitutional rights.


CHAIRMAN FARLEY: (p.24) Let me ask a question other people may have asked; it’s partly a practical question, partly a lega1 question. Why not just prohibit the procedure? Did you consider doing that?


DR. VARMA: We’re trying to balance the most practical with what actually would be effective. Our highest priority, of course, is to protect the health of infants. And one obvious and effective way to do that is to educate parents and allow them to make decisions on behalf of their children. We think that’s an approach that’s [constitutionally] safe … and, as Tom Merrill said, should survive court scrutiny.


Dr. Varma explains to Farley that banning the ritual would just drive it underground. Religious Jews would practice it secretly, the mohalim would evade arrest and authorities would have no means to “educate” [read: punish] those who violated the law. That would spell defeat for the crusade to halt mbp.


DR. VARMA: To go further and to actually ban it presents a number of challenges. One, this procedure is already performed by non-medical people in an out-of-hospital setting. It’s already somewhat underground. So we could potentially drive it even more underground, and have even more difficulty finding these cases and investigating them and educating people.


And I think a second very practical challenge is, I’m not sure we would be able to effectively find and detain mohels who are violating these rules.


Varma now spells out the strategy in plain English: Alienate the grassroots from their leaders, force rank and file Jews to turn against tradition by frightening them about the supposed risks of mbp until they force the rabbis’ hand.


DR. VARMA: (p. 25) Because this is a longstanding religious tradition, our long-term approach should be to turn the parents into the ones who object to this procedure, and hope that the rabbinical authorities who insist that this procedure be done, will eventually find safer approaches to it [read: they’ll abandon metzitzah b’peh], as many other rabbinical authorities have.




The discussion then turns to how, after “informed consent” becomes law, to monitor whether the law is being obeyed, and if it isn’t, how to uncover those mohalim who are not complying with it. Participants at the meeting acknowledge that Jewish parents will refuse to masser, even when pressured to do so.


MS. BRIER: (p. 27) I want to add, based on my own experience, that families I have known really do not want to give the name of the mohel to people who ask, even in extenuating circumstances. It’s hard to keep track of [these mohels.]




Even prior to informed consent being passed by the Board of Health, herpes was designated as a reportable illness, meaning that whenever a herpes case was even suspected by hospital authorities, the DOH was notified and officials came hurrying down to monitor the situation.


As previously reported in Yated by numerous eyewitnesses, the witch-hunt mentality this has promoted has led to suspected cases being immediately treated as confirmed herpes cases; parents of the infant are then interrogated by DOH officials about whether mbp was performed at the baby’s bris. They are relentlessly pressured to divulge the mohel’s identity so authorities can detain and interrogate him.


The intimidation and harassment has led to the perception of New York hospitals as being places where hostility toward mohalim and mbp is becoming rampant. New York City parents of a newborn post-bris baby who has fallen ill for whatever reason now fear taking their baby to the hospital.


The following excerpts from the minutes of the June Board meeting discuss methods of monitoring and enforcing “informed consent” once it becomes law. Health officials make clear their aim of ramping up the campaign against mohalim.   


DR. GOWDA: (p. 26) If we are describing the mohels as being outside the medical profession, working as an unregulated group of practitioners, how do we know if there’s been informed consent? What is the mechanism to monitor if this actually happens [if mohalim are complying with the new law]?


I think the only mechanism there will only be two situations in which we will, I think, learn about these cases. One will be in situations as we described where there is a case of neonatal herpes, or a suspected case, and we’re able to interview the parents and they tell us who the mohel is. We can then try to enforce whether or not informed consent was performed.


And the second would be the parents of non-cases, when we receive calls intermittently from parents who say “Something happened to my child, they


were exposed to risk. [i.e. my child became ill and we suspect the mohel performed mbp.]




In the wake of the DOH’s crusade, NYC mohalim admit to seeing a decline in bris milah requests from unaffiliated Jews.


“It’s a fascinating commentary about the deep-down pintele Yid,” one elderly mohel commented to this writer. “Even among those estranged from their roots, something about the endpoints of life – birth and death – have been bound up in a reverence for tradition – for a kosher bris milah and a kosher funeral. That is unfortunately changing.”


“Parents from these circles who call up about a bris milah will now ask, “Do you do metzitzah?” If the answer is yes – even if it’s done with a pipette or straw – the caller gets off right away, many times opting for a reform procedure or hospital circumcision. The propaganda has spread its poison.”


This mohel, widely popular in his community and previously sought after as well by unobservant families, told this writer that his fellow mohalim have also seen significant decline in bris milah requests from those outside the frum community.


He and another mohel to whom he referred this writer begged not to be quoted, attesting to the fear of being targeted and the subtle intimidation to which both feel subjected.


“The upcoming court hearing will signal which way the battle will go,” said Rabbi Gedaliah Weinberger, Chairman of the Board of Agudath Israel, in an interview with Yated. “We’re hoping for the best, but if the outcome is disappointing, we’ll continue our efforts with an appeal, a trial, doing the best hishtadlus we can. Bottom line, it’s an ais tzoroh and we desperately need rachamei shomayim.”



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