web analytics
March 29, 2015 / 9 Nisan, 5775
At a Glance
InDepth
Sponsored Post


The Metzitzah B’Peh Decision

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.

About the Author:


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “The Metzitzah B’Peh Decision”

Comments are closed.

Current Top Story
obamatargetiran-275x167
Iranian Journalist Defects, Says US Team Speaking for Iran
Latest Indepth Stories
Islamic Relief Worldwide Logo

In November 2014, Islamic Relief Worldwide was classified as a terrorist organization by the United Arab Emirates.

Safran-032715

Too rarely appreciated for its symbolic weight; it can represent freedom and independence.

Erica Pelman is a spiritually-driven woman. She is founder and director of “In Shifra’s Arms” (ISA), an organization that offers aid to pregnant Jewish women of all religious backgrounds practically, financially and emotionally. Its arms are open to any pregnant woman in need whether single, divorced, separated, or from a financially-strapped family. “Presently, we are […]

Gerstenfeld-032715

Many so-called “humanitarian NGOs” frequently abuse Israel by applying false moral equivalencies

Israeli history now has its version of “Dewey Defeats Truman” with headlines from 2 anti-Bibi papers

In God’s plan why was it necessary that Moses be raised by Pharaoh, away from his own family&people?

In their zechus may we all come to appreciate that life is a fleeting gift and resolve to spend every precious moment of it as if it were the last.

In any event, Mr. Netanyahu after the election sought to soften his statement on Palestinian statehood and apologized for what he conceded were remarks that “offended some Israeli citizens and offended members of the Israeli Arab community.”

A worthy idea any way you look at it.

There is something quite distinctive about the biblical approach to time.

The Waqf kept control of the Temple Mount due to Dayan’s “magnanimity in victory” after 6 Day war

The event promotes “1 state” solution (end of Israel as a Jewish State), BDS, lawfare against Israel

I rescued you?! You’re doing me a favor letting me help you!

“Tzedakah tatzil mi-mavet: Charity saves from death”; No death & a tax break? Where do I sign up?

More Articles from Editorial Board

In their zechus may we all come to appreciate that life is a fleeting gift and resolve to spend every precious moment of it as if it were the last.

A worthy idea any way you look at it.

If nothing really changes in the hearts and minds of the Palestinians, is Israel obligated to provide them and its other adversaries launching pads for attacks?

The United States placed enormous pressure on Israel to relinquish its gains, which Prime Minister Ben-Gurion did with great reluctance.

The real issue is that in many respects the president has sought to recalibrate American values and our system of government.

Former Connecticut senator Joe Lieberman, writing in the Washington Post on Sunday, provided one of the clearest and most compelling analyses we’ve seen of the importance of the prime minister’s speech.

Gone are the days when an anchorman sitting in a New York studio could, after sharing 22 minutes of carefully selected and edited news items, trumpet in stentorian tones, “And that’s the way it is.” No it wasn’t. It never was.

President Obama has frequently cautioned that Americans should take great care to avoid fomenting anti-Muslim passions in our reaction to the murderous activities regularly being perpetrated by terrorists in the name of Islam. One wonders why, though, he seems to have no concern with the potential for anti-Semitic fallout from his full-court press against Israeli […]

Printed from: http://www.jewishpress.com/indepth/editorial/the-metzitzah-bpeh-decision/2014/08/20/

Scan this QR code to visit this page online: