The challenge to New York City’s informed consent rule for Metziza B’Pe (MBP) should never have been brought. The rule it challenges, requiring informed consent by the parents before a mohel orally suctions blood directly from the circumcision incision, imposes, at most, the lightest of burdens on religious liberty. It does not forbid MBP or even bar mohelim from announcing their disagreement with the Department of Health’s risk assessment.
Predictably, given the minimal burden the rule imposes and the current weak state of religious liberty protection, a trial judge refused to block enforcement of the informed consent rule while litigation continued. Those challenging the rule have appealed—an appeal they are certain to lose, given the substantial, if not ironclad, evidence that the practice of MBP creates a risk of illness or death—a small risk, but a real one.
But the very act of bringing the appeal poses a larger danger. In the course of challenging a trivial regulation of religious practice, defenders of MBP are handing opponents of circumcision around the world a gift. Instead of confusing substance with shadow, a far-sighted Haredi leadership would have avoided this fight. It would have taken into account the negative impact of highlighting MBP at a time when circumcision was under attack in Germany and elsewhere, with opponents seeking to implement a total ban on the practice.
The entire Jewish community was united in opposition to attempts in San Francisco and Germany to ban circumcision altogether. New York’s informed consent rule, in contrast, drew opposition only from the Haredi sector. Other Jews (including many Orthodox Jews) either did not know of the practice, or had long ago substituted the use of a glass tube that allowed oral suction without physical contact.
Though the Department of Health had pointedly refused suggestions that it ban MBP altogether, much of the Haredi community treated the proposed rule as banning MBP, or even circumcision itself. A rabbinic friend tells of being in a Haredi elementary school during Hanukkah when children were told that the Health Department had banned circumcision, just as the Syrian Greeks had in the second century BCE. There is no excuse for such distortions. Even if one believes direct MBP is an indispensable element of circumcision, the city did not ban it.. The Haredi overreaction shows both a leadership pandering to the fears of its constituency and 150 years of continued rejection of any change in religious practice, no matter how innocuous or peripheral, treating any challenge as if it were a wholesale assault on all of Judaism.
Not so long ago there were highly respected Orthodox rabbis who considered MBP with direct physical contact unnecessary, some even banning the practice as unsafe. But now, with the rush to protest a by-and-large innocuous informed-consent requirement, a permissive halakhic tradition has been pushed to the side not for halakhic reasons, but for what can only be labeled as political considerations. Ironically, those claiming to fight for halakha distort halakha.
Also, to its shame, some segments of the Haredi community disregard any scientific findings that cast doubt on traditional practice. As filed, the complaint challenges the conclusion that MBP creates any health risk. The dispute now centers on how one “proves” a medical fact. To oversimplify a bit, opponents of the City’s informed-consent requirement argue that there is no DNA testing tying a particular mohel to a specific infection, and that there has been no testing to eliminate all other possible sources of infection.
The city, for its part, relies primarily on the modern, statistical-based approach commonly accepted in medicine today, which does not require DNA proof to establish a cause-and-effect relationship.
Yet although the challenge to MBP is misguided, the dispute has exposed a series of worrisome actions by government or the courts. By not only warning about the risks of MBP but also noting the views of other Orthodox authorities who permit suction via a tube, the Health Department appears to be intervening in an internal halakhic dispute. Furthermore, even as calculated by the Department, MBP’s risk of infection is not large in absolute terms, something like 1 in 4,000 cases, though this probably is at least twice the normal occurrence for new born babies. This raises the questions of at what level of risk the government should interfere with parental decision making, and why other risks to children engaging in hazardous activities not connected to religion—like skiing or football—go unregulated.
This is, in fact, a regulation targeting religion, despite the City’s cleverness in dressing it up as a neutral regulation. In this particular case that shouldn’t matter, since the rule is justified in any case. But it will matter in future cases, and all who care about religious liberty should worry about this part of the trial court’s decision.
Marc Stern is general counsel of the American Jewish Committee.
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