The plaintiffs argue that Judge Buchwald erred by denying that â€œinformed consentâ€ violates the Constitution by â€œcompelling speech.â€
She further erred, plaintiffs contend, by refusing to apply â€œstrict scrutinyâ€ to the regulation, to examine whether the Cityâ€™s unprecedented tampering with Jewish religious observance is justified under the First Amendmentâ€™s Free Exercise of Religion clause.
Buchwald, in her decision, denied that the consent regulation compels speech by requiring the mohel to convey the governmentâ€™s advice against MBP as a harmful practice that can kill newborns.
â€œThe mohel can simply [choose to] not do MBP,â€ the judge wrote. [That way he wonâ€™t be forced to say anything against his will.]
This Orwellian logic strips the Constitutional law against â€œcompelled speechâ€ of all meaning, the plaintiffs argue.
The Constitution protects a person from being forced to serve as the governmentâ€™s mouthpiece. That is the essence of the First Amendment right guaranteeing freedom of speech. Just as you are free to express yourself, you are free not to express anything you donâ€™t wish to say.
But if the only way a person can exercise his constitutional freedom to refrain from speech is by foregoing a particular action [in this case choosing not to perform MBP], how free is that?
To say you must either recite the governmentâ€™s â€œscriptâ€ or abandon the action you want to take is no different from saying â€œWe insist you say x, y or z or take a hike. But since we believe in freedom, weâ€™ll give you a choice: you are free to comply with our instructions, or free to get lost: The choice is yours.â€
HERPES VIA MBP HAS NEVER, NOT ONCE, BEEN PROVED
The appeal also shone a light on Judge Buchwaldâ€™s faulty reasoning in denying the injunction based on her argument that the City has a â€œcompelling interestâ€ in regulating MBP – something that would ordinarily be unconstitutional due to First Amendment protections. The compelling interest, she asserted, is the Cityâ€™s need to safeguard the public health.
Before the government can encroach on religious freedom, however, it must identify an actual danger or harm in need of eliminating through government regulation, the brief points out. â€œBut the city cannot show that MBP actually causes the alleged harm of neonatal herpes.â€
â€œThe scientific basis for the Departmentâ€™s warnings is woefully lacking,â€ the brief notes. â€œThe transmission of herpes through MBP has never – not once, anywhere – ever been proved to have occurred.â€
â€œNot only does the Department have no definite DNA proof that HSV has ever been transmitted via metzitzah bâ€™peh, the only study purporting to show even a statistical correlation [let alone causation]â€¦ was set aside by the court.â€
The study referred to here is the Morbidity and Mortality Report put out last year by the Center For Disease Control. It was shown to be so flawed and incompetent that most City officials gave up trying to defend it, and the district court set it aside.
That put the defendants in an untenable position. Without a single study to show any statistical linkage between MBP and herpes, how could the City justify intruding on religious freedom by singling out MBP as dangerous and insisting on â€œinformed consentâ€?
CITY: WE DONâ€™T NEED STATISTICS
The cityâ€™s lawyer did her best to paper things over with an assertion that would be comical if it were not so outrageous. â€œYour honor,â€ she said, â€œwe donâ€™t need to have statistical significance. We donâ€™t need a studyâ€¦when [MBP] is known to cause grave illness and death!â€
But absent any evidence, how is it â€œknownâ€? Everyone admits that while MBP is safely practiced on tens of thousands of babies each year, neonatal herpes is an immensely rare occurrence, which explains why no reliable studies have been conducted on it.
Consider MBPâ€™s record in Kiryas Yoel, N.Y., where nearly every baby boy is circumcised using metzitzah bâ€™peh. The record shows that only one case of neonatal herpes over nearly three decades – and in that case, the mohel was tested and proved not to be the source.
With the incidence of neonatal herpes so rare, and only a fraction of this minute number attributable to causes other than transmission during childbirth – and of this even more minute number, only a tinier fraction afflicting Jewish baby boys, some who had MBP and some who did not – how can any reasonable person claim it is â€œknownâ€ that MBP causes neonatal herpes?
CAN THE WHOLE WORLD BE WRONG?
Notwithstanding the absurdity of the claim, Judge Buchwald argued that the medical establishment as a whole, including experts with â€œstaggering credentials,â€ support the Cityâ€™s position. All agree that â€œitâ€™s incontrovertible that MBP increases the risk that a neonate will acquire herpes and other diseases.â€
She cited amicus briefs filed by four respected medical groups, as well as affidavits signed by top professionals in various scientific and medical fields, all putting their weight behind this assertion.
Can the whole world be wrong?
The answer of course is yes, the world has been wrong many times about many things. But in this particular case, one has to also consider that the medical establishment and the many experts the City has lined may have chosen, for their own reasons, to ignore the fact that the Cityâ€™s cause is so shabby and lacking in foundation.
THE STRANGE TALE OF DR. RICHARD WHITLEY
Consider the following history behind one of the Cityâ€™s experts, Dr. Richard Whitley from Alabama, whose sworn affidavit was filed with the Cityâ€™s submissions in the bris milah lawsuit.
A renowned infectious diseases expert, Whitley first entered the MBP odyssey in 2006, when a delegation from New York, consisting of Rabbi Niederman from the CRC (Satmar), CRCâ€™s legal counsel Mr. Yerachmiel Simins, Dr. Alan Werzberger and Dr. Stuart Ditchik traveled to Alabama to visit him.
The delegationâ€™s visit was part of an active effort by concerned members of the Orthodox Jewish community to counter the DOHâ€™s mounting campaign against MBP and harassment of mohelim.
In his affidavit to the court, Whitley said he received the delegation at his office at the University of Alabama, and that the purpose of their visit was to get his views on the health implications of MBP on newborns.
Whitley said he told his visitors â€œin no uncertain terms that in his medical opinion, there was a definite link between MBP and neonatal herpesâ€ and that â€œthey should take measures so that direct oral suction should not be performed.â€
Whitleyâ€™s affidavit says that in 2012, he came across a letter from Dr. Alan Werzberger on behalf of the delegation that he had received after their visit six years earlier, but had placed in his file without reading it.
Reading it for the first time in preparation for his affidavit, Whitley writes, he was â€œappalled at the gross mischaracterizationsâ€ in the letter. Essentially calling Dr. Werzberger a liar, he writes that â€œthe delegation willfully misinterpreted what I said to serve their own purposes.â€
The statements attributed to him that Whitley disputes concern the question of whether MBP can transmit HSV to newborns, and if DNA testing would be conclusive in determining the source of the infection.
Whitley also disputes that he advised the delegation about certain precautions the mohel could take (in cases where the DOH suspects him of being the source) to make certain he is herpes-free so that he can practice MBP without raising concerns.
A RADICALLY DIFFERENT PICTURE
Now letâ€™s look at Dr. Werzbergerâ€™s affidavit to the court describing that same visit.
â€œI was one of the members of the Orthodox community who traveled to Alabama in March 2006 to meet with Dr. Richard Whitley,â€ the Werzberger affidavit states. â€œWe met with Dr. Whitley in an attempt to learn more about the disease and the theory being aggressively pursued by the DOH regarding its transmission via [MBP] during circumcision.â€
Werzberger says the meeting was â€œhelpful, and the tone was warm and friendly.â€
For whatever reason, he writes, â€œDr. Whitley in his affidavit now claims that a letter I sent to him summarizing the meeting contained â€˜gross mischaracterizations of everything he had discussed with our delegation.â€™ He alleges that I â€˜willfully misinterpreted what he said in order to serve [my] own purposes.â€™ Dr. Whitley says that he hadnâ€™t previously reviewed the letter, which is why he had not earlier rebutted these mischaracterizations.â€
Werzberger goes on to challenge Whitleyâ€™s claim that he had never read the letter at the time he received it, and that it grossly distorted his statements to the delegation.
â€œIn fact, Dr. Whitley responded to my letter by email, the day after I sent it,â€ Werzberger writes.
Not only that, but Whitley responded point by point to Werzbergerâ€™s summary of the meeting, Werzberger says, â€œin large part agreeing with my characterizations of what he said, including those that he now says were gross mischaracterizations.â€
WHO IS TELLING THE TRUTH?
Who is telling the truth? Whitley, who claims in a scathing affidavit that he castigated the practice of MBP to the delegation, and urged them to take measures to halt it?
Or Werzberger, who says that Whitley was helpful in navigating a path that would satisfy the DOHâ€™s concerns while enabling mohelim to continue practicing MBP without harassment?
Who can we believe, Whitley, who â€œaffirms under penalty of perjuryâ€ that he never read Werzbergerâ€™s letter, much less responded to it? Or Werzberger, who says not only did Whitley respond to it, he agreed in large part with its summarization of the meeting?
Fortunately, no jury is needed here, because Whitleyâ€™s emailed response to Werzbergerâ€™s letter, dated Friday, March 4, 2006, 11:14 a.m., was retrieved from the delegationsâ€™ files and filed in court with the Werzberger affidavit.
Just as Dr. Werzberger testified in his affidavit, Whitley agreed with the bulk of his point-by-point summary of the meeting, including the points that he later called â€œgross mischaracterizations.â€
Just as Dr. Werzberger testified, the meeting was helpful in navigating a medical and scientific â€œform of risk reduction [for mohelim being harassed by the DOH for allegedly transmitting herpes] by having them take a daily dose of famciclovir or other similar anti-viral.â€
Dr. Werzberger had opened his letter to Dr. Whitley on a warm note of thanks and the hope that they would continue working together.
â€œAgain, on behalf of our group, please accept this heartfelt expression of gratitude,â€ begins Werzbergerâ€™s letter [with Whitley inserting his responses paragraph by paragraph]. â€œYour sacrifice of precious time and thoughtfulness for us has truly touched our hearts; we will be forever grateful. We are very excited at the prospect of working with you in the near future.â€
Had Whitley actually told the group that in his view, MBP posed grave dangers to newborns and urged them to take measures to end the practice, why would these activists, who fervently believed just the opposite and were working to prove the safety of the practice, be excited about working with him any further?
The real burning question is why Whitley abdicated his earlier views and switched from being a sympathetic ally to representatives of the Jewish community seeking to protect the practice of MBP, to a scathing, scornful critic?
Did he simply forget what he once believed about the subject? Did he simply forget about the entire matter of his correspondence with Dr. Werzberger?
â€œYouâ€™ll hire your experts and Iâ€™ll hire mine,â€ Mayor Bloomberg told Jewish leaders when negotiations broke down over the consent law, and a court battle seemed inevitable.
With the Cityâ€™s only study on MBP set aside by the court, and a key expert witnessâ€™s affidavit discredited, one has to wonder what other startling discoveries might turn up in the affidavits from experts with â€œstaggering credentialsâ€ hired by Mayor Bloomberg.