As the NYC mayoral election looms around the corner, the “consent law” has become a political hot potato, with the candidates staking out positions for or against it.
Democratic Mr. de Blasio says he would keep the regulation in place until the City comes up with something more effective in curbing mbp. Although the belief has gained traction in some NY Chasidic communities that the candidate has repudiated the City policy, de Blasio himself denies this, a New York Times article reported. The article implied Chasidic leaders have misrepresented Mr. De Blasio’s position to their constituents. 
Republican candidate Mr. Lhota is far more sympathetic to the concerns driving the lawsuit. At a Republican mayoral forum in Borough Park, Mr. Lhota said he believed the administration’s policy was “absolutely wrong,” the New York Times reported.
Lhota said he would replace the consent law with an information sheet outlining the alleged risks of mbp, avoiding the infringement of constitutional freedoms. In his view, the City’s job is “to educate, not mandate.”
“I don’t believe that you need to be given a piece of paper and you must sign it on the dotted line,” Mr. Lhota said. “He added that he would support allowing the city to hand out information to the parents about risks when they leave the hospital after childbirth, but not requiring the person who performs a circumcision to obtain a signed consent form from parents.”
Lhota has met with representatives of major Jewish groups, including Agudath Israel, that filed the lawsuit against the City, to whom he expressed these views.
“We asked if Jewish leaders would be permitted to have input in drafting the language of the information sheet conveying the Department of Health’s concerns,” Mr. Yerachmiel Simins, who was present at the meeting, told Yated.
“Mr. Lhota said he would be amenable to that. There is the sense that he’s sensitive to the needs of the religious community,” Simins added, “not only in relation to bris milah, but also educational issues such as school vouchers and other concerns.”
Mr. de Blasio declined to meet with delegates from the Jewish groups supporting the lawsuit, saying he was too busy to meet before the election.
LAWSUIT’S HIGHLIGHTS
To briefly recap, major Jewish organizations have sued the City over a law that for the first time in the history of the United States, places bris milah under government regulation. The law – seemingly innocuous until one looks at it closely – requires a mohel to secure consent forms from parents of a newborn before he performs metzitzah b’peh (mbp).
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 parents must affirm that the Department of Health advises them not to perform mbp, but they choose to do so regardless.
A district court in January denied the plaintiffs’ motion for a preliminary injunction against the consent law. That decision is now being appealed to the Second Circuit.
The appeal, argued by Jones Day attorneys Shay Dvoretzky and Yaakov Roth, assisted by attorney Yerachmiel Simins, argues first, that the Department of Health has unconstitutionally targeted a religious practice, without credible evidence to support its allegations that mbp is in any way dangerous to babies.
With only the shabbiest of research to back up its charges, the government’s intrusion on religious observance is unjustified and unlawful, the appeal argues.
The appeal brief highlighted the consent law’s discriminatory nature. Over the 5-year period from which the City obtained statistics on neonatal herpes, they identified 84 cases, only 5 of which could possibly be connected to mbp. [The other cases occurred in baby girls or resulted from childbirth complications — the most frequent source of neonatal herpes–and other sources of infection.]
The fact that the City has never addressed the other 79 cases of infant herpes but has focused only on the 5 they want to link to mbp, proves this regulation specifically targets religion, the brief said – a clear violation of the Constitution.
CAN IT STAND UP TO ‘STRICT SCRUTINY’?
Government at times may be forced to encroach on religious liberty in the face of overriding need, such as the public’s safety. But laws that breach constitutional freedoms must withstand what is known as “strict scrutiny.” They must be shown to be vitally important and necessary. The brief argues that the District Court erred by allowing the City to violate religious freedom without even attempting to prove it has legitimate grounds to do so.
“The District Court subjected the regulation to no real scrutiny at all,” the brief argued.
“Yet the Health Department asks this Court to [agree] that the [consent] rule satisfies even strict scrutiny, even though the Department (i) refuses to address any of the scientific flaws in the only study purporting to find a correlation between MBP and neonatal herpes; (ii) ignores the unrefuted evidence that antiseptic rinsing eliminates the herpes virus in saliva; and (iii) ignores the law prohibiting [forced speech] in any context.” –Page 8, Plaintiff Reply Brief
Far from offering incontrovertible proof that tampering with bris milah is absolutely essential for the public good, the City refuses to support its allegations by employing DNA testing, the gold standard for identifying the source of a herpes virus.
Rejecting the only foolproof method of pinning down the source of infection “fatally undermines the City’s claims,” the plaintiffs argue. At the end of the day, these unsubstantiated claims qualify as little more than pseudo-science or glorified guesswork.
TURNING MOHALIM INTO GOV’T MOUTHPIECES
The appeal brief assailed the regulation from a second angle: its violation of freedom of speech by compelling mohalim to serve as the government’s mouthpiece in communicating information they reject as lies. The consent law forces mohalim to transmit advice to Jewish parents to boycott a practice sacred to millions of Jews throughout history.
At the same time, it compels speech by forcing mohalim to put their signature to assertions that essentially accuse mbp – and by extension, the mohalim themselves – of killing babies.
The City countered the appeal brief in early July by minimizing the true intent of the regulation and pretending the consent form is merely a standard form – which it is not.
A standard consent form signed before a medical procedure describes the procedure, provides a statement of consent and is then signed by the patient. No warnings about possible dangers are included, as they are in the consent form for metzitzah b’peh.
The purpose of medical consent forms is to facilitate the procedure, while shielding the hospital from liability in case things go wrong. In the case of consent for mbp, however, the true intent is exactly the opposite: to prevent the procedure from taking place, and to use the mohalim themselves to achieve this.
ECHOES OF THE CHANUKAH STRUGGLE
The timing of the hearing for oral arguments in the appeal – the sixth day of Chanukah, which falls out on rosh chodesh Teves – carries a spine-tingling irony as it triggers echoes of the centuries-ago Chashmonean wars with the Greeks over the right to study and uphold the Torah. Today as then, the freedom to practice bris milah is under attack, although in our day, the persecution is cross continental and comes masked as “humanitarian concern.”
Consider the pious language of the resolution passed on October 1 by the Council of Europe’s parliament, defining bris milah as a “violation of the physical integrity of children… according to human rights standards.”
The resolution passed by a vote of 78 in favor and 13 against, with 15 abstentions.
Although Muslim-majority member countries in the 47-member Council of Europe are likely to oppose any legislation banning circumcision, the resolution emboldens anti-Semites and fuels self-righteous hostility toward Jewish practice and observance.
Any suggestion to ban circumcision “sends out a terrible message to European Jews that our practices, and therefore our very presence on this continent, is treated with disdain,” European Jewish Congress President Moshe Kantor stated.
In response, Milah UK, an organization aimed at promoting ritual circumcision among British Jews, said that while “the adoption of this report is non-binding and does not represent any direct threat to milah,” the readiness of the Parliamentary Assembly to dismiss arguments in favor of religious freedom is troubling.”
