Victory was difficult to conceive of in the lawsuit’s early months, especially when a stinging court defeat in the first round of the lawsuit led many to believe the case was doomed.
Rabbonim and askonim met with legal experts at the time to debate the merits of moving ahead with an appeal, or re-attempting negotiation with the Bloomberg administration. Local attorneys as well as experts from Washington DC familiar with the workings of government were invited to this conference, so that the rabbonim could hear all points of view.
In the aftermath of the legal setback, some felt the risks of continuing the lawsuit were too high. They worried that if the Torah camp appealed and lost the case, the defeat would embolden opponents to make further attempts at tampering with bris milah.
Others present at this meeting wanted to push ahead with an appeal. As recounted by one of the askonim in an interview with Yated at the time, this group felt it was too early to despair, that the dangers to bris milah were too grave to allow an early setback to spell defeat. They called for intensifying efforts to have the consent law repealed.
In the midst of the heated discussion, one of the legal experts present stood up. “What is all this talk of repealing a law?” he exclaimed. “Laws on the books in this country don’t get repealed. That’s not how government works! At best, they get amended. Let’s keep the discussion in the realm of what’s possible,” he advised.
Those comments provide a frame of reference for appreciating the historic significance of the final chapter of the Bris Milah Lawsuit, in which, exactly three years after the consent law was passed, it was repealed.
Why Not Just Reword The Law?
Repealing a law is indeed a rare occurrence, legal experts say. Most city officials, even after agreeing not to enforce the law, were opposed to rescinding it. The question of what to do about a law on the books that officials promised would not be enforced was the subject of months of debate between the de Blasio administration and the plaintiffs in the lawsuit.
DOH officials preferred to reword the consent law in a manner that would not offend religious sensitivities, while the plaintiffs were adamant about having the law unequivocally dropped. A law that remained on the books with all its false medical “evidence” could conceivably be revived by a future administration, many feared.
Ultimately, the language of the new September 9 resolution appears to leave the door open to this very possibility.
What The Resolution Does Not Say
The sense of die-hard opponents of mbp in the DOH clinging to their position emerges from a closer look at what the resolution does not say.
Notably, the language omits any mention of working out a protocol with the religious community that would implement DNA-testing of mohalim and caregivers to trace the source of herpes in infected babies.
This is a departure from earlier public statements in which officials declared the City’s readiness to end regulation of bris milah in favor of cutting-edge DNA analysis, to determine how the HSV-1 infection was transmitted.
That surrender on the part of the City came after decisive evidence emerged from the Rockland County Protocol that had employed DNA-testing of mohalim and infant caregivers over a period of many months. The results had proved conclusively that, contrary to allegations, the mohalim had not transmitted HSV-1 to the babies who had fallen ill.
As is now well known, the findings of non-matches in the cases under Rockland County investigation constituted a game-changer. The findings torpedoed an article of faith among NYC health officials that a rash or blisters found in the bris milah area within 7-10 days after circumcision, plus an HSV-1 positive test, point conclusively to the mohel and mbp as the source of infection.
Rockland County’s pioneering protocol paved the way for the City’s striking turnaround in March, in which authorities agreed to abandon the consent law.
As mentioned above, administration officials at first expressed willingness to pursue DNA analysis to nail down HSV-1 carriers, testing not only of the mohel but family members and care-givers.
But the Board of Health resolution that repealed the consent law speaks only of replacing the law with an educational program that would alert the community to the so-called dangers of metzitzah b’peh. That campaign is similar to one already in operation that disseminates pamphlets raising the alarm about mbp in hospitals and doctors’ offices.
No mention is made in the new resolution of following the recommendations of medical experts to drop the exclusive focus on mbp, and to perform DNA analysis of the more likely transmitters of neonatal herpes – the baby’s family members and caregivers – along with the mohel.
Hardliners Waiting For Opportunity To Regroup?
The resolution’s complete silence on the subject of DNA-testing is both surprising and revealing, informed sources say.
“Hardliners in the DOH are apparently too deeply invested in their campaign against mbp to back down, even in the face of strong evidence that their position is unfounded,” said an askan who took a leading role in the lawsuit. “It’s likely they’re waiting in the wings for an opportunity to regroup.”
Further complicating matters, some liberal media organs, whipped up by the anti-mbp campaign in its heyday, are not willing to let the matter go. These parties demand to know how health officials, after years of bashing mbp, could simply rescind the consent law.
Some have filed FOIA requests against the DOH, seeking records of all previously reported neonatal herpes cases, including the medical and scientific evidence supporting the diagnoses and any causal links to mohalim and mbp.
“The DOH created a monster that has come back to bite them,” one source said.
Far-Reaching Benefits For Jews Everywhere
Despite the omissions in the Board of Health resolution regarding a DNA protocol with the religious community, the plaintiffs in the Bris Milah Lawsuit embraced the resolution. They thanked Board of Health members in a statement for “closing this unfortunate chapter in what otherwise is this great city’s shining history of tolerance and of protecting religious liberty while safeguarding public health.”
“For all who treasure religious freedom, and are truly committed to the health and wellbeing of our children, [the Board of Health] resolution is cause for celebration,” the statement said.
The plaintiffs paid tribute to Mayor de Blasio, thanking him “for his sensitivity to our community’s concerns and for his firm leadership on this vital issue,” and to Deputy Mayor Paoli and members of the City administration for their cooperation and support.
Mr. Yerachmiel Simins, an attorney who worked on the Bris Milah Lawsuit pro bono, told Yated that the lawsuit and appeal had accomplished far-reaching benefits for Jews everywhere.
The judge’s ruling that any law interfering with the religious practice of mbp would have to withstand “strict scrutiny” will make it very hard to launch future attacks on mbp without hard scientific evidence,” said Simins.
“The fact that the consent law was defeated in New York is bound to have a global ripple effect,” the attorney added, noting his recent conversation with a leading rov in Israel.
“I inquired if there were any new developments regarding mbp in Eretz Yisroel. ‘None,’ the rov said. ‘When it’s quiet in New York, it’s quiet in Eretz Yisroel.’”
Among the many evocative images of the battle to protect bris milah, one recalls how all streams of the religious community followed daas Torah in supporting the lawsuit, keeping a unified front throughout the three years the “consent law” was fought in court. Who can calculate the tremendous siyata dishmaya such achdus brought?