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November 26, 2015 / 14 Kislev, 5776
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The Metzitzah B’Peh Decision

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A three-judge panel of the United States Court of Appeals sitting in Manhattan created a stir over the weekend with its decision in the continuing metzitzah b’peh controversy.

The court unanimously overturned a ruling by district court Judge Naomi Reice Buchwald that had effectively dismissed a challenge to the constitutionality of New York City’s right to regulate metzitzah b’peh, or religiously grounded oral suction of the circumcision wound opened during the course of a bris milah.

The case involves a city requirement that metzitzah b’peh not be performed without written, informed parental consent. Metzitzah b’peh is one of the traditional means for cleansing of the wound occasioned by circumcision and is believed by many to be integral to bris milah itself.

While the appeals court did not invalidate the notice and consent requirement, as some have erroneously claimed, it did rule that Judge Buchwald had erred in applying an insufficiently exacting test for determining whether it’s an intrusion on the free exercise of religion.

In fact, the appeals court sent the case back to Judge Buchwald to determine whether there is sufficient evidence available to demonstrate that the regulation served a “compelling state interest” that could not be met by a more narrowly drawn means that is less burdensome on religious practice. This is the so-called strict scrutiny test for constitutionality, as distinct from the rational relationship test that had been applied by Judge Buchwald.

Under Judge Buchwald’s approach, the city only had to show that the regulation was generally and reasonably related to the city’s overarching responsibility in the area of protecting the health and safety of its citizens. That is, since the city can generally regulate contact with open wounds, a religious context is of no moment. But the appeals court found that the regulation was directed at the religious-based practice of metzitzah b’peh and therefore the more rigorous test was appropriate.

So now actual fact will take center stage.

Several years ago the city concluded that the metzitzah b’peh procedure created unacceptable risks for newborns in terms of the transmission of neo-natal herpes through contact with a mohel carrying the herpes virus.

Given findings that more than half the adult population of the United States carries oral herpes, the city promulgated a rule requiring any mohel intending to perform metzitzah b’peh to provide parents with a form listing what the city believed to be risks associated with the procedure and a place for parents to record their consent if they still wished to go through with it. The form also contained the city’s recommendation that the procedure not be performed.

Some religious organizations and mohelim challenged the regulation of metzitzah b’peh as an undue restriction on religious practice, citing what they alleged was the inconclusiveness of the evidence offered by the city to justify the infringement on the right to perform metzitzah b’peh.

Although the regulation is still in effect and enforceable, going forward the city will nevertheless have to demonstrate to the district court judge, with convincing, factual evidence, that there is a distinct causal connection between metzitzah b’peh and neo-natal herpes. And even if there is, can measures short of the consent requirement be employed?

It will be interesting to see what the city can come up with in the course of the legal proceedings. Sterile statistics and generalized conclusions will no longer do.

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