Sacred to religious Jews for millennia, MBP has been under assault by NYC officials for almost a decade, beginning with a libel campaign against a respected mohel in 2005. Since that time, Department of Health officials have orchestrated a series of moves against the practice, claiming it heightened the risk of herpes infection (HSV-1) in newborns and led to sickness and death.
Although no hard evidence has ever been produced to substantiate these allegations, the effort to outlaw metzitzah b’peh reached fruition under former Mayor Bloomberg in 2012.
Bloomberg joined forces with the Department of Health and the Center for Disease Control (CDC) in the promulgation of an amendment to the city’s health code. The new law forbade mohalim from practicing MBP without obtaining written consent from parents in self-incriminating language that spelled out the city’s doctrine that MBP kills newborns.
Viewing the law as an unprecedented infringement on bris milah and a violation of constitutional rights to freedom of religion and speech, a coalition of religious groups sued the City of New York in January of this year, asking a federal judge to overturn the parental consent law. The case is still pending.
Jewish groups have slammed the DOH for pushing for adopting an amendment to the Health Code that would ban MBP, force parents to sign incriminating waivers before the ritual can be performed, and coerce mohalim to speak disparagingly of their religious beliefs.
The coalition brief, authored by Jones Day attorney Shay Dworetzky and bolstered by a team of experts in infectious diseases, epidemiology and statistics, exposed the shabby research behind a CDC study used by the City to support its theory of “causation” between MBP and neonatal herpes.
“No case of neonatal herpes anywhere in the world has ever been proved, through definitive DNA fingerprinting, to have resulted from metzitzah b’peh,” the brief challenged in a devastating attack on the CDC’s purported scientific research.
This body of research by the CDC has since been so discredited; it was set aside by a federal judge ruling on the request for a temporary injunction against the consent law.
Since then, city pronouncements about MBP have tellingly avoided the words “proven,” or “confirmed,” when describing “likely causation” between the ritual and the disease.
The media has followed suit yet notice the power of innuendo and actual incitement in the following excerpt from a Daily News article.
“Two new cases of herpes among newborns in the city have cast a fresh spotlight on a circumcision ritual practiced by some ultra-Orthodox Jews,” the Daily News noted.
The article went on to state that “officials suspect [note the avoidance of “confirmed” or “found”] the baby boys contracted the disease as a result of the MBP ritual…” Under a regulation enacted in 2012 under then-Mayor Bloomberg, mohels performing the ritual, known as metzitzah b’peh, must obtain a signed consent form from parents stating the potential health risks …which can kill newborns.”
The article went on to state that “in one of the two new herpes cases, the city identified the mohel and found he did not have a consent form. And in the second, the parents are not cooperating and officials do not know the mohel’s identity.”
“The new cases raise questions about the city’s ability to regulate the practice,” the article continued. “The city’s inability to prevent the babies from becoming ill, and to identify the mohels who might be responsible, underscores a weakness of the 2012 regulation, which was supposed to represent a balance between safeguarding newborns and protecting religious freedom.
OLD TACTICS, NEW EFFORT?
Some are apprehensive that these comments about the “weakness of the 2012 regulation” may presage a new effort by the DOH to crack down further on MBP with a law that has more teeth than the current consent law.
That worries askonim who are fighting to protect the religious freedoms at stake in the DOH’s misguided crusade against a Jewish ritual they don’t approve of.
As a mayoral candidate, Bill de Blasio voiced dissatisfaction with the 2012 regulation. He vowed to “change the policy and find a way to protect all the children but also respect religious tradition in an appropriate manner and come in day one to City Hall with a new policy that is fair.”
Some took de Blasio’s remarks as a sign that he was sympathetic to concerns that the consent regulation was an unnecessary intrusion. The DOH’s new Health Alert, however, supplemented by media articles stoking fears of an outbreak of herpes due to MBP, have spurred fears that the mayor may be laying the groundwork together with the DOH for a new, stronger initiative to suppress MBP.
This scare tactic was used effectively in the City’s 2012 campaign to win public approval for the parental consent regulation, as the Washington Post noted in an article last week.
“Following a 2012 HSV-1 outbreak,” the Post wrote, “the Health Department attempted to regulate the practice [of MBP], requiring mohels to obtain written parental consent, which would provide information about the risks involved, such as brain damage and death.”
What outbreak is the Post referring to? The number of case of herpes in newborn baby boys who had MBP during their bris is so insignificant as to barely show up in any statistical study of the disease.
DESTROY IT FROM THE INSIDE
The consent law seems aimed at battling MBP from within the religious community. As senior DOH official Susan Blank told City and State (July 23, 2012), “The concept of informed consent puts more of the decision-making power and more of the information in the hands of the parents.”
Blank, a high-ranking official at the city’s Department of Health and Mental Hygiene, said she was puzzled by rabbis’ opposition to the consent law, “which she said allowed [rabbis] their religious freedom “while simultaneously allowing parents greater control over their child’s welfare.”
Using the strategy of parental consent, Board of Health members reasoned at a June 2012 board meeting, the DOH did not have to worry about running afoul of constitutional rights to religious freedom by outlawing MBP. They simply had to sow enough fear in the hearts of Jewish parents about MBP’s dire risks that the community itself would force rabbonim and mohelim to abolish it.
The tactic of driving a wedge between rabbonim and the community has made definite inroads–especially among unaffiliated or minimally observant Jews who have been poisoned by the study drumbeat of libel against mohelim and MBP.
Even in the frum community, some mothers, hearing about a new case of neonatal herpes and allegations about the mohel, will surrender to qualms about using the same mohel for their own newborn. Few are immune to repeated exposure to slander.
RABBINIC LEADERS WERE ALWAYS WILLING TO COOPERATE IN DNA TESTING
In 2006, the Rabbinical Council, a group comprised of representatives from the spectrum of Orthodox Jewry in New York, entered into a Circumcision Protocol with the NY State Health Department. The terms agreed upon called for an unbiased investigation in exchange for rabbinic and community cooperation.
This included banning the mohel from performing MBP if he’s found to be DNA-matched to an infected infant.
The State Health Commissioner lauded the agreement, praising “the participation of the Rabbinical Council of the State of New York, and the good faith that was put forth with the Department of Health to protect the public health, and at the same time, respect religious freedom.”
The Protocol was reviewed by nationally renowned neonatal infectious disease experts and the National Institutes of Health, and was unanimously passed by the NYS Public Health Council.
It was adopted by every health department in the State of New York — except New York City’s.
On the rabbinic side, it was entered into by the Central Rabbinical Congress of the United States and Canada, Rav Feivel Cohen, Rav Hillel David, leaders of Kashau, Satmar, Skver, Belz, Bobov, Pupa and Vien. It was subsequently adopted by the Moetzes Gedolei HaTorah of Agudath Israel, and the rabbinic leadership of the National Council of Young Israel.
It was also endorsed by many gedolei Eretz Yisroel, including Rav Yosef Shalom Eliyashiv, zt”l and lbc”l Rav Aharon Leib Shteinman and Rav Chaim Kanievsky.
If the Protocol had been adopted by the DOH in 2006, all 5 cases it claims arose since then could have been thoroughly investigated with the full cooperation of the community. Had such an investigation taken place, the issue of MBP’srelation to HSV-1 in each of these cases might have been put to rest. This valuable opportunity, however, was squandered.
The Protocol was terminated when a new administration came into office. It was recently raised by representatives of the Jewish community with the State Department of Health, as well as city officials. The hope was that this carefully negotiated agreement could be resurrected to benefit all concerned parties.
The officials declined to revisit it.
Today we see this narrative being rewritten by a compliant media teaming up with the DOH. Consider this excerpt from the Daily News article:
“One Orthodox leader in Brooklyn told the Daily News that rabbis have offered to identify the unknown mohel involved in one of the new herpes cases and let an unbiased medical team test him to determine if there’s a link to the sick baby.
This represents a change in the community’s approach, and could represent a breakthrough in developing a new policy,” the paper reported.
Yet, it is not the Orthodox community that refuses to cooperate; it is the DOH that has steadfastly refused to conduct unbiased investigations. It has adopted an intransigent and adversarial stance that has left the community no choice but to close up.
If that stance were to change, that would be a much welcome, long-awaited game-changer.