The judge devoted much of the hearing to laying out the City’s case and challenging Dvoretzky with its key arguments. From her comments, it was readily apparent that the most vexing problem facing the City as a defendant in the lawsuit is its lack of conclusive evidence that MBP has ever caused HSV (herpes) in newborn babies, as the City asserts.
This is a critical point because regulating any aspect of bris milah – a religious practice protected by the Constitution – would be absolutely off limits for the government unless it could cite an overriding priority such as protecting the public safety (known as “a compelling state interest”) that demands government intervention.
Otherwise, tightly restricting any aspect of bris milah, as the new law mandates, would be unthinkable and indefensible, and no one would try it.
CREATING THE EVIDENCE
But the City is trying it, despite the lack of evidence to support its crusade. The way the City circumvented this problem was by creating a study using inflated numbers and contrived data to support its contention, and giving it the imposing imprimatur of the Center for Disease Control (CDC).
Gambling on the authoritative power of this error – riddled study, the City voted in an amendment that for the first time in U.S. history subjects bris milah to government control and outlaws one of its hallowed traditions.
Under the new law, bris milah with metzitzah b’peh is now prohibited unless the mohel first secures a parental consent form which spells out the so – called dangers of MBP. To put the screws on even tighter, the regulation requires the mohel himself to warn parents of the so – called dire consequences that could befall their baby with MBP.
The brazen attack on religious freedom sparked a lawsuit by a first – ever coalition of Satmar – affiliated groups with Agudath Israel and the Chabad-affiliated International Bris Association.
As the CDC report’s incompetence came to light, experts debunked its “statistical findings” regarding MBP as worthless. But the study had already achieved its purpose: infecting the public with the false conviction that MBP is dangerous to newborns and rallying the medical establishment behind this battle cry.
These measures alone, however, could not ensure the abolishment of a venerated practice among Orthodox Jews that has been safely practiced for centuries.
BATTLING ORTHODOX RESISTANCE
The City found itself up against massive resistance from the Orthodox community. Due to Jewish refusal to reportmohelim to authorities, the City not only was unable to determine the identity of the mohel in a case of neonatal herpes; authorities could not discover from the parents whether MBP had been performed at all. The lack of evidence to justify their witch hunt against mohelim was embarrassing.
In its frustration, the DOH resorted to harassing the Jewish parents of a herpes infected baby in an effort to break down their resistance to massering. In some cases, documented in the pages of Yated over past months, the DOH went so far as to start a criminal investigation against the parents for “child neglect.”
In another case, DOH authorities subjected the parents’ rov to a humiliating interrogation in efforts to learn the identity of the mohel and particulars about the bris milah.
None of these efforts bore fruit. They did succeed, however, in driving a wedge between the community and the Department of Health, sowing suspicion of hospital authorities in the Orthodox community and hindering DOH efforts to win adherents to its anti – MBP crusade.
THE MAGIC BULLET
The City’s new regulation, adopted in October, has changed all that. 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 – the magic bullet – resolves both issues in a single stroke. It 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.
That is the genius behind the amendment requiring parental consent forms.
The consent form names the parents as well as the mohel, and confirms that he did MBP, despite the “risks” it allegedly poses.
Most incriminatingly, it obligates both the mohel and the parents to retain copies of these forms [i.e. to preserve the “fingerprints” from the “crime scene”], to be produced on demand by the City in the event of an investigation.
FREEDOM OF SPEECH AND RELIGION TRAMPLED
The subject of consent forms, which lies at the heart of the lawsuit, came under intense debate during the December 18 hearing.
In response to Judge Buchwald’s questions, Dvoretzky said the controversial consent form violates freedom of religion and of speech. It forces mohalim to parrot statements they reject as lies – thereby violating the mohel’s freedom of speech. It violates freedom of religion by singling out MBP for regulation when the City has taken no action to regulate other known risk factors believed to cause neonatal herpes.
In a masterful presentation, Mr. Dvoretzky highlighted the law’s selectivity in targeting MBP.
“Over the 5 – year period from which the City drew statistics on neonatal herpes, they identified 8 cases, only 5 of which they even suggest are possibly connected to MBP,” Dvoretzky said.
“The fact that the City has not tried in any way to address the other 79 cases but has focused only on the 5 they believe to be associated with MBP, is further evidence that this regulation specifically targets religion.”
Dvoretzky called the regulation “anti – religion” not only in practice but in intent, citing the fact that the City’s representatives [i.e. Mayor Bloomberg] had announced in public their intention to abolish MBP.
HIDING THE TRUE PURPOSE OF CONSENT FORMS
Speaking for the City, Judge Buchwald then tried to defend the consent form, asserting that it’s “the only way that the city can be certain that the parent is actually aware that the mohel will be utilizing MBP.”
Buchwald alluded to 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 stretches credulity. [What parent pays so little attention to the bris milah of his child that he only finds out “what happened” afterward?]
Buchwald caught herself at this point, apparently realizing she was going too far in making the City’s case for them. “Let me ask you [what you would say],” she said, turning to the City’s lawyer. “I don’t want to put words in your mouth.”
Ms. Cahn picked up the cue, hastening to agree that due to MBP being performed by mohalim surreptitiously, the consent form was really about preventing parental rights from being trampled.
Dvoretzky shredded this argument. He pointed out that the consent form includes not only parental consent “but also requires the mohel to communicate the City’s advice” and warnings against MBP, in effect turning mohalim into agents of the government against their will.
“NO ONE HAS SEEN THE CONSENT FORM – IT DOESN’T EVEN EXIST”
Buchwald fought his assertion, saying that “no one has actually seen the consent form” and “it doesn’t even exist yet” [so how can anyone claim it forces mohelim to say anything at all?].
Ironically, although Judge Buchwald showed an excellent grasp of the City’s case as she cited from close to a thousand pages of City affidavits, exhibits and other submissions, the language underlying the lawsuit’s most fundamental argument somehow escaped her attention.
Cahn, the City lawyer, knew better. She quickly piped up with an admission that yes, the regulation does have “language that’s required on the consent form.” In other words, the form’s exact wording might not have yet been etched in stone, but there’s no doubt about what message it has to carry.
Cahn stopped short of spelling out the message because it confirmed Dvoretzky’s position and contradicted her own [“We’re not banning the practice [of MBP], we’re not regulating it,” she told the court. “We’re not saying don’t do it or how to do it.]
However, a quick glance at the City’s “Notice of Public Hearing” about the “consent” law shortly before it was adopted, removes all doubt about what the City intends to accomplish.
Here is the exact language concerning the consent form, taken straight from the City’s public notice:
The consent form“must include notice that [MBP] exposes the infant to the risk of transmission of herpes infection and other infectious diseases.” And in the following paragraph of the notice, we read: “The circumciser must warn of the risks of infection posed by [MBP] prior to the circumcision.”
As Dvoretzky told Judge Buchwald, the message clearly includes explicit marching orders to the mohel to “warn” parents away from MBP–constituting a free speech issue that lies at the very heart of the lawsuit.
THE EMPEROR HAS NO CLOTHES
Many observers remarked on Dvoretzky’s remarkably lucid and compelling arguments, delivered under fire, without pause time to gather his thoughts and cross check his sources.
Perhaps one of the finest moments in his presentation came in response to Judge Buchwald’s argument that the medical establishment as a whole, including experts with “staggering credentials,” support the City’s position. All agree 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, and asked Dvoretzky why the City isn’t justified in relying on these experts and the studies they cite?
His answer, which came instantly, was essentially that “the emperor has no clothes.”
“If you look closely at those studies,” Dvoretzky said, “they don’t actually offer any definitive proof that HSV has been transmitted by MBP.”
Similarly, he said, with regard to “the City’s experts, if you look at their affidavits, they use words like ‘there is a link,’ ‘the circumstances suggest.’
“Nobody has ever proven this transmission,” he told the judge. “If it did exist, [if herpes was being transmitted by MBP], you would expect to see that in statistics through a demonstrable increased risk, which there isn’t.”
To make a staggering assertion of this sort, that despite rivers of ink spilled by hired experts attesting to MBP’s dangers, no proof exists that MBP causes a heightened risk of herpes, Devoretzky had to have carefully scrutinized the City’s thousands of pages of submissions. These included a formidable host of medical and scientific affidavits and amicus briefs.
Astonishingly, he encountered no rebuttal from the City on this point. The discussion quickly moved on to the subject of the consent forms.
The discussion might well have stopped there. The emperor indeed has no clothes. How shameful.