Few freedoms are more cherished in the United States—and more vigorously surveilled—than the right to religious liberty. For government to discriminate against religious conduct—and make it the subject of heightened government regulation—would run afoul of the constitutional principles at the heart of America’s founding and undermine liberalism’s unequivocal commitment to religious autonomy.
Of course, instances where rogue legislators impermissibly target religious conduct represent the easy cases. The tough cases—the ones that engender heated and often hostile debate—are where government is thrust on the horns of a dilemma between protecting its citizens from harm and limiting its citizens’ religious autonomy. Such is the case with the New York City Board of Health’s controversial decision last month to require mohalim (religious circumcisers) to obtain informed parental consent before performing ritual oral suction on the circumcision wound after completing the procedure.
This religious ritual—referred to traditionally as metzitzah b’peh—is practiced primarily within the confines of small Ultra-Orthodox Jewish communities and traces back to the Talmud where it was understood to protect the circumcised baby from harm. However, the Board of Health contends that in a handful of cases this practice caused babies to contract herpes, leading to hospitalization and, in some rare instances, brain damage and death.
This is not the first time that this post-circumcision practice has landed on the battlefield of the ever-expanding circumcision wars. Advocates of the failed San Francisco circumcision ban—so-called intactivists—wasted no time in weaving this practice into their anti-circumcision narrative. The president of MGMBill.org, an organization agitating for anti-circumcision bills in the U.S., incorporated it into his controversial comic book “Foreskin Man.” Using imagery that the Anti-Defamation League has appropriately referred to as “grotesque” and “anti-Semitic,” the comic featured a disturbingly bloodthirsty and violent villain named “Monster Mohel.” “Nothing excites Monster Mohel more,” says the comicbook, “than cutting into the penile flesh of an eight-day-old infant boy. And after the glorified brit milah is complete, the delicious metzitzah b’peh provides the icing on the cake.”
Intactivists draw a very different conclusion from the ongoing practice of oral suction than has New York City’s Board of Health. Ardent opponents of circumcision deploy the practice as part of their campaign to ban circumcision altogether. And one of the key lessons from the fight over the attempted San Francisco circumcision ban is that such bans are far more legally viable than many anticipated. Indeed, even the religious liberty guaranteed by the First Amendment combined with the parental rights guaranteed by the Fourteenth Amendment may not provide enough protection against a circumcision ban that does not specifically target religious conduct.
Thankfully—and wisely—the Board of Health has not even hinted at such draconian measures. In fact, they have not even sought to ban the more limited practice of post-circumcision oral suction. Instead, it has marshaled the forces of religious autonomy, deferring to the decisions of parents so long as they have been advised of the potential risks. Faced with a choice between religious autonomy and government regulation, the Board of Health has steered its decision towards the former, remaining true to our core constitutional commitments of individual conscience and religious freedom.
None of this has shielded the Board of Health from an extraordinary helping of undue criticism. For example, Assemblyman Dov Hikind (D-Brooklyn) and New York State Senate candidate Simcha Felder have declared the measure “an attack on Judaism as practiced for 3300 years” and a “deliberate insult to the intelligence and dignity of Orthodox Jews.” Nothing could be more wrongheaded. Notwithstanding its own view that the practice entails medical risk, the Board of Health has not condemned circumcision or even post-circumcision oral suction. They simply have endorsed informed consent in order to ensure that parents selecting a specific form of ritual circumcision make that choice with access to full and free information. To endorse religious and parental autonomy in the face of such potential risk is to make an unambiguous and powerful statement in support of not only religious liberty generally, but in support of the Jewish communities that continue to practice this traditional form of ritual circumcision.
On this count, it is shocking that some critics of the Board of Health (to their credit, not Hikind and Felder) have had the audacity to compare this new measure to the attempts to impose a complete ban on circumcision abroad in countries such as Germany and Denmark. Indeed, for critics to post signs outside the Board of Health hearings describing this new measure as a “blood libel”—and then to suggest that Mayor Bloomberg should serve as the chancellor of Germany—exaggerates the concerns at stake to the point that it completely undermines their credibility. The criminalization of ritual circumcision banishes religious autonomy to the constitutional ether; it imposes a top-down view of how to practice religion and raise children, which denigrates both religious tradition and parental decision-making. Informed consent represents the very opposite of these nefarious regulations; to compare the two, as some Jewish leaders have, is thoroughly irresponsible and the very pinnacle of absurdity.
It may be true, as Hikind and Felder suggest, that this new measure will “dissuade some Jews altogether from performing ritual circumcisions.” When you promote the autonomy of others sometimes they make choices you dislike. By proposing a measure that capitalizes on the religious autonomy of parents, allowing them to select the best way to raise their child, the Board of Health aims to ensure that parents selecting this religious ritual have done so out of religious conviction and not medical ignorance. And that may mean—at least so Hikind and Felder insist—that some families will walk away from the ritual. But that is a reason to endorse the proposal; it means that parents are currently making critical decisions about the welfare of their children because they lack access to information—decisions that would be different if they only knew more.
There is good reason to be skeptical of any religious spokesperson or political representative who resists attempts to disseminate information—especially when that information has the power to change minds. While Hikind and Felder accuse the Board of Health of “thrust[ing] the city deeper into a nanny-ocracy,” one can only wonder whether it is the forces resisting this new measure that seek to impose their own worldview on a less-than informed constituency. When push comes to shove, is this debate really about the symbolic denigration of a religious practice, or is the worry that once some parents find out about the risks, they’ll reject received dogma and discard the practice?
Michael A. Helfand is associate professor and associate director of the Diane and Guilford Glazer Institute for Jewish Studies at Pepperdine University School of Law.
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